EXHIBIT 10.2
VERTEX PHARMACEUTICALS INCORPORATED HAS OMITTED FROM THIS EXHIBIT 10.2 PORTIONS
OF THE AGREEMENT FOR WHICH THE COMPANY HAS REQUESTED CONFIDENTIAL TREATMENT FROM
THE SECURITIES AND EXCHANGE COMMISSION. THE PORTIONS OF THIS EXHIBIT FOR WHICH
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED ARE MARKED WITH BRACKETED ASTERISKS
([****]), AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
LEASE
by and between
Trustees of Fort Washington Realty Trust,
Landlord,
and
Vertex Pharmaceuticals Incorporated
Tenant
ARTICLE I
REFERENCE DATA
1.1 SUBJECTS REFERRED TO
ANNUAL FIXED RENT RATE: Subject to Sections 2.3 and 4.1(b)
hereof, (i) [***]/r.s.f. for the
Basement of the Building, [***]/r.s.f.
for each of Levels 1, 2 and 3 of the
Building, and [***]/r.s.f. for Xxxxx 0
of the Building or (ii) if Landlord
advances the Tenant Allowance, the
Annual Fixed Rent Rate set forth above
shall be [***]/r.s.f. for the Basement
of the Building, [***]/r.s.f. for Levels
1, 2 and 3 of the Building and
[***]/r.s.f. for Xxxxx 0 xx xxx
Xxxxxxxx.
XXXXXXXXXXX XXXX: 10 years and 4 months or 15 years and 4
months if Landlord advances the Tenant
Allowance.
BUILDING: The Building known as and numbered 000
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx,
to be constructed by Landlord and
containing approximately 191,904
rentable square feet ("r.s.f.")
BUILDING ADDRESS: 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx
INITIAL ESTIMATED ANNUAL
ADDITIONAL RENT: [************]based upon [***]/r.s.f.
LANDLORD: Xxxxx X. Xxxx and Xxxxx X. Xxxx,
Trustees of Fort Washington Realty Trust
u/d/t dated June 19, 1995, recorded with
the Middlesex (South) District Registry
of Deeds in Book 25422, Page 360 and
filed with the Middlesex (South)
Registry District of the Land Court as
Document No. 976230
LANDLORD'S ARCHITECT: Arrowstreet, Inc.
2
LANDLORD'S ADDRESS: c/o Lyme Properties LLC
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
LANDLORD'S CONTRACTOR: Xxxxxxx X. Xxxxx & Son, Inc.
LANDLORD'S REPRESENTATIVE: Xxxxx Xxxx
LEASE YEAR: Each consecutive period of twelve (12)
calendar months commencing on the
Commencement Date if it occurs on the
first day of a calendar month and
otherwise commencing on the first day of
the month immediately following the
month in which the Commencement Date
occurs, and each anniversary of such
date, except that the first Lease Year
shall be approximately one year and four
months so as to include the period from
the Commencement Date through the Rent
Commencement Date or until the first day
of the following month in the event that
the Rent Commencement Date does not
occur on the first day of a calendar
month.
LOT: The land shown on EXHIBIT A and more
particularly described on EXHIBIT A-1
attached hereto.
MANAGING AGENT: Hall Keen Management, Inc.
OPTIONS TO EXTEND: Two (2) Options to Extend the Term of
this Lease for successive periods of ten
(10) years each, in accordance with
Section 10.12 hereof.
PERMITTED USES: General office, research and
development, laboratory and light
manufacturing.
PREMISES: Approximately 191,904 r.s.f. of space in
the Building to be constructed by
Landlord on the Lot as shown on EXHIBIT
A.
3
PREMISES DESIGN FLOOR AREA: 191,904 r.s.f., comprised of 37,211
r.s.f. in the Basement of the Building,
43,515 r.s.f. on Xxxxx 0 of the
Building, 44,266 r.s.f. on Xxxxx 0 of
the Building, 41,693 r.s.f. on Level 3
of the Building, and 25,219 r.s.f. on
Xxxxx 0 of the Building, which Level 4
space includes a 17,552 r.s.f. enclosed
high bay mechanical penthouse to
accommodate mechanical, electrical and
plumbing equipment to be installed by
Landlord and Tenant.
PUBLIC LIABILITY
INSURANCE LIMITS: Bodily injury: $10,000,000 Property
Damage: $10,000,000
SCHEDULED SUBSTANTIAL
COMPLETION DATE: May 1, 2000
SCHEDULED RENT
COMMENCEMENT DATE: September 1, 2000
SCHEDULED TERM
COMMENCEMENT DATE: May 1, 2000
SECURITY DEPOSIT: As further described in Section 10.11
hereof, a letter of credit or cash in
the initial amount of [*******] plus an
amount equal to the Initial Estimated
Annual Additional Rent ([*********]),
subject to adjustment in accordance with
Sections 2.3 and 10.11 hereof.
TENANT: Vertex Pharmaceuticals Incorporated.
TENANT'S ADDRESS 000 Xxxxxxx Xxxxxx
(For Notice and Billing): Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
TENANT ALLOWANCE: Subject to Section 2.3 hereof,
[**********] ([***]/r.s.f.), comprised
of [***]/r.s.f. for basement and
penthouse space and [***]/r.s.f. for
lab/office space
4
TENANT'S ARCHITECT: Xxxx/Xxxxx & Associates, Inc.
TENANT'S PROPORTIONATE
FRACTION: 100%
TENANT'S REPRESENTATIVE: Xxxxxx Xxx, Xx.
TERM EXPIRATION DATE: August 31, 2010 or August 31, 2015 if
Landlord advances the Tenant
Allowance, subject in either event to
two (2) Options to Extend for
successive periods of ten (10) years
each, in accordance with Section 10.12.
1.2 EXHIBITS.
The Exhibits listed below in this section are incorporated in this
Lease by reference and are to be construed as a part of this Lease:
EXHIBIT A. Plan showing Lot
EXHIBIT A-1. Legal Description
EXHIBIT B. Landlord's Plans
EXHIBIT C. Rules and Regulations
EXHIBIT D. Schedule of Floor Load Limits
5
1.3 TABLE OF CONTENTS
ARTICLE I..............................................................................2
1.1 SUBJECTS REFERRED TO.......................................................2
1.2 EXHIBITS...................................................................5
1.3 TABLE OF CONTENTS..........................................................6
ARTICLE II.............................................................................9
2.1 PREMISES...................................................................9
2.2 TERM.......................................................................9
2.3 MODIFICATION OF CERTAIN DEFINITIONS; CERTIFICATE
REGARDING COMMENCEMENT DATE...............................................10
ARTICLE III...........................................................................10
3.1 INITIAL CONSTRUCTION......................................................10
3.2 PREPARATION OF PREMISES FOR PERFORMANCE OF TENANT'S WORK..................12
3.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION.............................15
3.4 REPRESENTATIVES...........................................................17
3.5 CORRECTION OF LANDLORD'S WORK.............................................17
ARTICLE IV............................................................................18
4.1 FIXED RENT................................................................18
4.2 ADDITIONAL RENT...........................................................19
4.2.1 Real Estate Taxes......................................................19
4.2.2 Insurance..............................................................20
4.2.2.1 Insurance Taken Out by Tenant.......................................20
4.2.2.2 Insurance Taken Out by Landlord.....................................21
4.2.2.3 Tenant Reimbursement of Insurance Taken Out by Landlord.............21
4.2.2.4 Certain Requirements Applicable to Insurance Policies...............22
4.2.2.5 Waiver of Subrogation...............................................22
4.2.3 Utilities..............................................................23
4.2.4 Common Area Maintenance and Expenses...................................23
4.2.5 Payments on Account of Taxes, Insurance and Utilities..................26
4.3 LATE PAYMENT OF RENT......................................................27
ARTICLE V.............................................................................27
5.1 AFFIRMATIVE COVENANTS.....................................................27
5.1.1 Perform Obligations....................................................27
5.1.2 Occupancy and Use......................................................27
5.1.3 Repair and Maintenance.................................................28
5.1.4 Compliance with Law....................................................29
5.1.5 Tenant's Work..........................................................31
5.1.6 Indemnity..............................................................32
5.1.7 Landlord's Right to Enter..............................................32
5.1.8 Personal Property at Tenant's Risk.....................................33
5.1.9 Payment of Landlord's Cost of Enforcement..............................33
6
5.1.10 Yield Up...............................................................33
5.1.11 Estoppel Certificate...................................................34
5.1.12 Landlord's Expenses Re Consents........................................34
5.1.13 Rules and Regulations..................................................34
5.1.14 Loading................................................................34
5.1.15 Holdover...............................................................35
5.2 NEGATIVE COVENANTS........................................................35
5.2.1 Assignment and Subletting..............................................35
5.2.2 Nuisance...............................................................37
5.2.3 Installation, Alterations or Additions.................................37
ARTICLE VI............................................................................37
6.1 TERMINATION...............................................................37
6.2 RESTORATION...............................................................37
6.3 AWARD.....................................................................38
ARTICLE VII...........................................................................38
7.1 EVENTS OF DEFAULT.........................................................38
7.2 REMEDIES..................................................................39
7.3 REMEDIES CUMULATIVE.......................................................40
7.4 LANDLORD'S RIGHT TO CURE DEFAULTS.........................................40
7.5 EFFECT OF WAIVERS OF DEFAULT..............................................41
7.6 NO ACCORD AND SATISFACTION................................................41
ARTICLE VIII..........................................................................41
8.1 RIGHTS OF MORTGAGE HOLDERS................................................41
8.2 SUPERIORITY OF LEASE; OPTION TO SUBORDINATE...............................42
8.3 LEASE AMENDMENTS..........................................................43
ARTICLE IX............................................................................43
9.1 AFFIRMATIVE COVENANTS.....................................................43
9.1.1 Perform Obligations....................................................43
9.1.2 Repairs................................................................43
9.1.3 Compliance with Law....................................................44
9.1.4 Indemnity..............................................................44
9.1.5 Estoppel Certificate...................................................44
9.1.6 Landlord's Title.......................................................45
9.1.7 Utilities..............................................................45
ARTICLE X.............................................................................45
10.1 NOTICES FROM ONE PARTY TO THE OTHER.......................................45
10.2 QUIET ENJOYMENT...........................................................46
10.3 EASEMENTS; CHANGES TO LOT LINES...........................................46
10.4 LEASE NOT TO BE RECORDED..................................................46
10.5 BIND AND INURE; LIMITATION OF LANDLORD'S LIABILITY........................46
10.6 ACTS OF GOD...............................................................47
10.7 LANDLORD'S DEFAULT........................................................47
10.8 BROKERAGE.................................................................48
7
10.9 APPLICABLE LAW AND CONSTRUCTION...........................................48
10.10 SUBMISSION NOT AN OFFER...................................................48
10.11 SECURITY DEPOSIT..........................................................49
10.12 OPTIONS TO EXTEND.........................................................50
10.13 INTENTIONALLY OMITTED.....................................................51
10.14 PARKING...................................................................51
10.15 CONFIDENTIAL INFORMATION..................................................52
10.16 SIGNAGE...................................................................52
8
ARTICLE II
PREMISES AND TERM
2.1 PREMISES.
Landlord hereby leases and demises to Tenant and Tenant hereby leases
from Landlord, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the Premises. Tenant shall have, as
appurtenant to the Premises, the right to use in common with others, if any,
entitled thereto (i) the common facilities, if any, included in the Building or
on the Lot, (ii) the building service fixtures and equipment serving the
Premises, and (iii) subject to Section 10.14 hereof, the right to use one
hundred sixty-six (166) parking spaces ("Tenant's Parking Spaces") in the
parking garage located at 00 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (the
"Garage").
Landlord reserves the right from time to time, without unreasonable
interference with Tenant's use, (a) to install, repair, replace, use, maintain
and relocate for service to the Premises and to other parts of the Building or
either, building service fixtures and equipment wherever located in the
Building, provided, however, that the Annual Fixed Rent, Additional Rent (as
defined in Section 4.2 hereof) and other charges payable hereunder by Tenant
shall be proportionally reduced in the event that any such installation or
relocation of service materially reduces the usable floor area of the Premises
(other than a temporary reduction to accommodate installation, repair,
replacement, maintenance and relocation of such service); and (b) to alter or
relocate any common facilities and/or Tenant's Parking Spaces on or (subject to
Section 10.14 hereof) off the Lot, provided that in all events (1) substitutions
are in compliance with applicable zoning laws, (2) substitutions are
substantially equivalent, and (3) the total number of parking spaces available
to Tenant on or off the Lot is not decreased.
2.2 TERM.
To have and to hold for a period (the "Term") commencing on the date
which is the later of the Scheduled Term Commencement Date or the Substantial
Completion Date (whichever of said dates is appropriate being hereafter referred
to as the "Commencement Date"), and continuing until the Term Expiration Date,
unless sooner terminated as provided in Section 3.2 or in Article VII, and
subject to extension in accordance with the terms of Section 10.12 hereof. As
used herein the term "Rent Commencement Date" shall mean that date which is four
(4) calendar months after the Commencement Date. Tenant shall have the right to
access the Premises prior to the Commencement Date for purposes of installing
equipment and furnishings and performing Tenant's Work (as hereinafter defined)
in accordance with and subject to the provisions of Section 3.2.
9
2.3 MODIFICATION OF CERTAIN DEFINITIONS; CERTIFICATE REGARDING COMMENCEMENT
DATE.
Landlord and Tenant acknowledge that the actual rentable square footage
of the Premises may, upon completion of construction of the Base Building
Improvements (as hereinafter defined) be different than the Premises Design
Floor Area as set forth in Article I hereof. Accordingly, after completion of
construction of the Base Building Improvements, Landlord will notify Tenant of
the actual rentable square footage of the Premises, which shall be measured in
accordance with the ANSI/BOMA 265.1-1996 Standard Method for Measuring Building
Rentable Area, approved June 7, 1996, and, if necessary, Landlord and Tenant
will execute an amendment to this Lease modifying the definitions of the
Premises Design Floor Area, the Annual Fixed Rent Rate, the Initial Estimated
Annual Additional Rent, the amount of the Security Deposit (as specified in
Section 10.11) and the Tenant Allowance, and such other terms and provisions, if
any, of this Lease as may be necessary. Tenant shall have a period of forty-five
(45) days after the date hereof within which to notify Landlord in writing
whether Tenant intends to have Landlord advance the Tenant Allowance (the
"Tenant Allowance Notice"). In the absence of a Tenant Allowance Notice by such
date, Tenant shall be deemed to have elected not to have Landlord advance the
Tenant Allowance, in which event the last paragraph of Section 3.2.1 hereof
shall be of no force or effect. If Tenant elects to have Landlord advance the
Tenant Allowance, Landlord and Tenant shall execute an amendment to this Lease
evidencing such election, acknowledging an increase in the amount of the
Security Deposit (as specified in Section 10.11) and the Term of this Lease, and
amending such other terms and provisions, if any, of this Lease as may be
necessary. Landlord and Tenant will also execute, upon request of either,
certificates acknowledging the Commencement Date of this Lease as provided for
in Section 2.2 hereof, after such commencement date has occurred (as described
in Section 3.2 hereof).
ARTICLE III
IMPROVEMENTS
3.1 INITIAL CONSTRUCTION.
(a) PLANS. Landlord has developed and Tenant hereby approves
construction drawings and specifications described in Exhibit B hereto
("Landlord's Work") for the Premises showing all items of work and materials to
be performed and supplied by Landlord ("Base Building Improvements"). Landlord
has obtained a building permit for the Base Building Improvements. Tenant
acknowledges that a number of additional licenses, permits and approvals may be
required in order for Landlord to commence and complete construction of the Base
Building Improvements and Tenant agrees to cooperate with Landlord in obtaining
the same. Landlord agrees to provide Tenant with copies of all change orders for
the Base Building Improvements. Tenant shall have five (5) business days after
the receipt thereof to review and approve or disapprove of any such change
orders. Tenant may disapprove a change order only if
10
such change order would materially deviate from Landlord's Work. If Tenant does
not notify Landlord of Tenant's disapproval within such five-business day
period, Tenant shall be deemed to have approved such change order.
(b) If Tenant requests any change order for the Base Building
Improvements, including any change relating to the construction of a covered
walkway, utility and electric conduits and the like between the Building and the
building known as and numbered 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (the
"Phase I Building"), Landlord shall submit all such change orders with plans,
specifications, pricing and a schedule of values if appropriate to Tenant for
its review and approval. No change order for the Base Building Improvements
requested by Tenant shall be effective unless approved by Landlord's
Representative and Tenant's Representative in writing, such approval not to be
unreasonably withheld or delayed. Tenant shall pay an amount equal to all costs
directly incurred by Landlord as a result of any change orders signed by Tenant
and Landlord affecting Landlord's Plans or the Base Building Improvements,
including the cost to Landlord of Landlord's Contractor's overhead and profit
equal to 10% of those costs exclusive of overhead and profit. Amounts due and
payable on account of such change orders shall be paid within fifteen (15) days
of billing therefor, and in all events by the Substantial Completion Date. If,
however, Tenant has elected to have Landlord advance the Tenant Allowance,
amounts due and payable by Tenant on account of such change orders may be
applied to the extent of the unadvanced balance, if any, of the Tenant
Allowance. After completion of the Base Building Improvements, Landlord shall
deliver a set of as built plans for the Base Building Improvements to Tenant
upon Landlord's receipt thereof.
Except for the Base Building Improvements to be performed by Landlord
in accordance with the plans and specifications described in Exhibit B hereto,
all of Tenant's initial interior improvements, fixtures, finishes, furnishings,
furniture, telephones, movable equipment and signs visible from the exterior of
the Building (collectively, "Tenant's Work"), shall be performed at the sole
cost and expense of Tenant, PROVIDED HOWEVER, that subject to Section 3.2.1
hereof Landlord shall advance up to the amount of the Tenant Allowance if Tenant
elects to have Landlord advance the Tenant Allowance. Tenant's Representative
shall serve as construction manager for Tenant's Work. Tenant's performance of
Tenant's Work shall be coordinated with any work being performed by Landlord in
such manner as to maintain harmonious labor relations during the performance of
the Base Building Improvements and not to damage the Building or Lot or
interfere with Building or Lot operations. All work described in Tenant's Work
shall be performed by Landlord's Contractor (if Tenant enters into a contract
with Landlord's Contractor for the initial Tenant's Work) or by a contractor
selected by Tenant and approved by Landlord, which approval shall not be
unreasonably withheld ("Tenant's Contractor"). The performance of Tenant's Work
in accordance with this Lease shall not be deemed to be a violation of the
Permitted Uses of the Premises. Except as set forth in Sections 3.3 and 5.1.10
hereof and Exhibit E hereto, all Tenant's Work shall become a part of the
Premises and upon termination of this Lease shall be considered to be the
property of the Landlord.
11
3.2 PREPARATION OF PREMISES FOR PERFORMANCE OF TENANT'S WORK.
Landlord agrees to use reasonable efforts to have the Premises ready for the
performance of Tenant's Work on or before the Scheduled Substantial Completion
Date which shall, however, be extended for a period equal to that of (a) any
delays due to Acts of God, or by labor disputes, fire, unusual delays in
deliveries, unavoidable casualties or other causes beyond Landlord's reasonable
control (collectively, "Force Majeure Events") and (b) any delays due to (i) any
changes in the Base Building Improvements requested by Tenant, (ii) any act or
neglect of Tenant, or of any employee, agent, or separate contractor of Tenant
or (iii) the concurrent performance of the Base Building Improvements and
Tenant's Work (collectively, "Tenant Delay"). The Premises shall be deemed ready
for the performance of Tenant's Work on the Substantial Completion Date (as
hereinafter defined). As used herein, the term "Substantial Completion Date"
shall mean and refer to the date on which: (i) the Base Building Improvements
are substantially complete as certified by Landlord's Architect and verified by
Tenant's Architect, with the exception of minor items which can be fully
completed by Landlord within thirty (30) days without material interference with
Tenant and other items which because of the season or weather or the nature of
the item are not practicable to do at the time, provided that none of said items
is necessary to perform Tenant's Work (collectively "Punch List Items"), (ii) if
Tenant's Work has not then commenced, a Certificate of Occupancy from the City
of Cambridge (or a Temporary Certificate of Occupancy with conditions which can
be satisfied without material interference with the performance of Tenant's Work
) shall have been obtained, (iii) the Premises is broom clean and free of debris
except to the extent, if any, resulting from Tenant's Work, and (iv) all
utilities required for the use of the Premises have been brought by Landlord to
the Utility Switching Points (as defined in Section 4.2.3 hereof); provided,
however, that if the Substantial Completion Date does not occur on or before the
Scheduled Substantial Completion Date due to any Tenant Delay then the Base
Building Improvements shall be deemed to be substantially completed, and the
Substantial Completion Date shall be deemed to have occurred, on the date on
which the Substantial Completion Date would have occurred taking into account
any Force Majeure Events but without taking into account any Tenant Delay. If
Landlord's Architect has certified that the Base Building Improvements are
substantially complete but Tenant's Architect does not verify the same within
five (5) business days thereafter, Landlord's Architect and Tenant's Architect
shall immediately select a third independent architect who shall conclusively
determine whether the Base Building Improvements are substantially complete.
Landlord and Tenant shall share equally the costs of such third architect.
Landlord's obligations under Sections 3.1 and 3.2 shall be deemed to have been
performed on the Substantial Completion Date except for Punch List Items and
items which do not conform with the requirements of Sections 3.1 and 3.2 and as
to which Tenant or Tenant's Architect shall have given written notice to
Landlord prior to such date. If Tenant or Tenant's Architect does not provide
such written notice prior to the Substantial Completion Date, a certificate of
substantial completion by a licensed architect or registered engineer shall be
conclusive evidence that Landlord has performed all such obligations except for
Punch List Items and items stated in such certificate to be incomplete or not in
conformity with such requirements.
12
Notwithstanding the foregoing, Tenant shall have the right to terminate
this Lease upon notice given to Landlord on or before the date which is 180 days
after the Scheduled Substantial Completion Date in the event that the
Substantial Completion Date, as extended due to the occurrence of any Tenant
Delay, has not occurred on or before the date which is 180 days after the
Scheduled Substantial Completion Date, as so extended for Tenant Delay.
3.2.1. PERFORMANCE OF TENANT'S WORK.
Tenant shall not effect any Tenant's Work (or any alterations or
additions to the Premises after performance of Tenant's Work) that might (i)
diminish the value of the Premises for laboratory/office use, or (ii) require
any unusual expense to re-adapt the Premises for any laboratory/office use.
Tenant's Work shall be performed in accordance with complete,
consistent, final construction drawings and specifications ("Construction
Documents") approved in advance by Landlord in writing, which approval shall not
be unreasonably withheld. The Construction Documents shall be prepared and
stamped by Tenant's Architect and approved by Landlord in writing. Landlord
reserves the right to reject, in whole or in part, the Construction Documents
which in its reasonable opinion fail to comply with the provisions of this Lease
within fifteen (15) business days of its receipt thereof (the "Review Period").
The Review Period shall not commence unless and until Tenant delivers a complete
set of Construction Documents. If Landlord shall disapprove the Construction
Documents, it shall state specifically the reasons therefor, and Tenant shall
promptly revise and resubmit the Construction Documents. If Landlord fails to
respond to Tenant's request for approval of the Construction Documents within
the Review Period then the Construction Documents shall be deemed approved.
Tenant shall be solely responsible for the liabilities of and expenses
of all architectural and engineering services relating to Tenant's Work and for
the adequacy, accuracy, and completeness of the Construction Documents approved
by Landlord unless Tenant elects that Landlord advance the Tenant Allowance (and
if so elected, then only to the extent of the Tenant Allowance). The
Construction Documents (i) shall set forth in detail the requirements for
construction of the Tenant's Work (including all architectural, mechanical,
electrical and structural drawings and detailed specifications), (ii) shall be
fully coordinated with one another and with field conditions as they exist in
the Premises and elsewhere in the Building, and (iii) shall show all work
necessary to complete the Tenant's Work including all cutting, fitting, and
patching and all connections to the mechanical and electrical systems and
components of the Building. Tenant agrees to hold Landlord harmless if any
Tenant's Work described in the Construction Documents (a) fails to comply with
all applicable laws, regulations, building codes, and building design standards,
(b) in any manner affects any structural component of the Building (including,
without limitation, exterior walls, exterior windows, core walls, roofs or floor
slabs), (c) in any respect is incompatible with the electrical and mechanical
components and systems of the Building, (d) affects the exterior of the
Building, (e) fails to conform to floor loading limits, and (f) with respect to
all materials, equipment and special designs, processes, or products, infringes
on any
13
patent or other proprietary rights of others. Landlord's approval or deemed
approval of the Construction Documents and the performance of Tenant's Work
pursuant to the Construction Documents shall not result in any liability of
Landlord, except to the extent that Tenant elects to have Landlord advance the
Tenant Allowance, and Landlord's approval of Construction Documents shall
signify only Landlord's consent to Tenant's Work shown thereon and shall not
result in any responsibility of Landlord concerning compliance of Tenant's Work
with laws, regulations, or codes, coordination of any aspect of Tenant's Work
with any other aspect of Tenant's Work, or the feasibility of constructing
Tenant's Work without material damage or harm to the Building, all of which
shall be the sole responsibility of Tenant.
After Tenant's Contractor has been approved, then the same may
thereafter be used by Tenant until Landlord notifies Tenant that Tenant's
Contractor is no longer approved due to Tenant's Contractor's failure to comply
in any material respect with the requirements of the Construction Documents
and/or this Lease. Tenant shall procure all necessary governmental permits,
licenses and approvals before undertaking any Tenant's Work. Tenant shall
perform all Tenant's Work at Tenant's risk in compliance with all applicable
laws, codes and regulations and in a good and workmanlike manner employing new
materials of good quality. When any Tenant's Work is in progress, Tenant shall
cause to be maintained (i) insurance as may be required by Landlord covering any
additional hazards due to such Tenant Work, and (ii) a statutory xxxx xxxx
pursuant to M.G.L. c.254, ss.12 or any successor statute (or such other
protection of Landlord's interest in the Building and Lot against liens as
Landlord may reasonably require), in each case for the benefit of Landlord. It
shall be a condition of Landlord's approval of any Tenant's Work that
certificates of such insurance and a xxxx xxxx in recordable form, both issued
by responsible insurance companies qualified to do business in Massachusetts and
reasonably approved by Landlord, shall have been deposited with Landlord, that
Tenant has provided Tenant's certification of the insurable value of the work in
question for casualty insurance purposes, and that all of the other conditions
of the Lease have been satisfied. Tenant shall reimburse up to $10,000.00 for
Landlord's reasonable costs of reviewing proposed Tenant's Work and inspecting
installation of the same PROVIDED HOWEVER, that if Tenant elects to have
Landlord advance the Tenant Allowance, such costs may be paid from the Tenant
Allowance. At all times while performing Tenant's Work, Tenant shall require any
Tenant's Contractor to comply with all applicable laws, regulations, permits and
policies relating to such work. In performing Tenant's Work, each Tenant's
Contractor shall comply with Landlord's requirements set forth in Section 3.2.1,
the first paragraph of Section 3.3, Section 5.1.5 and Section 5.2.3 hereof
relating to the time and methods for such work, use of delivery elevators and
other Building facilities and each Tenant's Contractor shall not interfere or
disrupt Landlord's Contractor. Each Tenant's Contractor shall in all events work
on the Premises without causing labor disharmony, coordination difficulties, or
delay or impair any guaranties, warranties or obligations of any contractors of
Landlord. If any Tenant's Contractor uses any Building services or facilities,
such Contractor, jointly and severally with Tenant, shall agree to reimburse
Landlord for the cost thereof based on Landlord's schedule of charges
established from time to time (and if no such charges have been established,
then based on Landlord's reasonable charge established at the time). Each
Tenant's Contractor shall, by entry into the Building, be deemed to have agreed
to
14
indemnify and hold Landlord harmless from any claim, loss or expense arising in
whole or in part out of any act or neglect committed by such person while in the
Building, to the same extent as Tenant has so agreed in this Lease, the
indemnities of Tenant and Tenant's Contractor to be joint and several.
Tenant shall pay on or prior to date when any such payment is due,
either from its own funds or from the Tenant Allowance if Tenant elects to have
Landlord advance the Tenant Allowance, the entire cost of all Tenant's Work so
that the Premises shall always be free of liens for labor or materials. If any
mechanic's lien (which term shall include all similar liens relating to the
furnishing of labor and materials) is filed against the Premises or the Building
or any part thereof which is claimed to be attributable to Tenant, its agents,
employees or contractors, Tenant shall promptly discharge the same by payment or
filing any necessary bond within thirty (30) days after Tenant has notice (from
any source) of such mechanic's lien. Landlord may, as a condition of its
approval of any Tenant's Work, require Tenant to deposit with Landlord a bond,
letter of credit or other similar security in the amount of Landlord's
reasonable estimate of the value of such Work securing Tenant's obligations to
make payments for such Work.
Landlord shall permit Tenant and Tenant's Contractor access to the
Premises prior to the Commencement Date for the performance of Tenant's Work if
Tenant employs Landlord's Contractor or another contractor approved by Landlord
for the performance of Tenant's Work and if the concurrent performance of the
Base Building Improvements and Tenant's Work will not delay the Substantial
Completion Date. Subject to the foregoing, Landlord shall cooperate with
Tenant's Contractor in connection with Tenant's Work.
If Tenant elects to have Landlord advance the Tenant Allowance, Tenant
shall provide Landlord with a budget and copies of all contracts entered into
with respect to Tenant's Work and such other information as Landlord reasonably
may request. The Tenant Allowance shall be advanced to Tenant by Landlord no
more frequently than monthly against costs then incurred but unpaid by Tenant
with respect to Tenant's Work. The Tenant Allowance shall be advanced to Tenant
in the proportion which the Tenant Allowance bears to Tenant's budget, as the
same may be updated, for Tenant's Work. Tenant shall make application to
Landlord for an advance of the Tenant Allowance at least ten (10) business days
prior to the date upon which an advance is to be made. Such application shall be
on such form or forms as Landlord reasonably may require, and shall be
accompanied by invoices, receipts, lien waivers and such other documents as
Landlord reasonably may require.
3.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION.
All construction work required or permitted by this Lease, whether by
Landlord or by Tenant, shall be done in a good and workmanlike manner and in
compliance with all applicable laws and all lawful ordinances, regulations and
orders of any governmental authority or insurer of the Building. Either party
may inspect the work of the other at reasonable times and shall give notice of
observed defects. Landlord shall not be responsible for any loss, damage, or
injury
15
resulting from the installation of any components, fixtures, or equipment
provided they were appropriately specified and installed in accordance with the
manufacturer's or supplier's instructions; provided, however, that Landlord
shall assign any and all contractor's, manufacturer's and supplier's warranties
with respect to all components, fixtures, or equipment, including, without
limitation, Landlord's Contractor's warranty, to Tenant for the Term of this
Lease, upon the expiration or sooner termination of which such warranties shall
automatically revert to Landlord.
After the performance of Tenant's Work, Tenant will not make any
alterations or additions to the Premises without Landlord's approval, which
approval shall not be unreasonably withheld or delayed provided that Landlord
and Tenant shall agree in writing whether Tenant will be required to, permitted
to or forbidden to, at Tenant's sole cost and expense, remove any such
alteration or addition upon the expiration or termination of this Lease.
Landlord's approval of any alteration or addition which is not a Minor
Alteration (as defined below in this Section 3.3) shall be deemed to have been
given if Landlord fails to notify Tenant of its objection thereto within fifteen
(15)business days after Tenant's request for such approval. In circumstances in
which Tenant desires the right to remove additions or alterations at the
expiration or termination of this Lease, Landlord shall reasonably agree, and
such agreement shall not be unreasonably withheld or delayed (and shall be
deemed to have been given if Landlord fails to notify Tenant of its objection
thereto within fifteen (15) business days after Tenant's request for such
agreement), to permit such removal (i) where items installed by Tenant are in
the nature of equipment, but are so affixed to Building that such items may be
construed as fixtures or (ii) where additions or alterations of Tenant include
specific items that after removal from the Building will have in the aggregate
for each such alteration or addition a fair market value of $25,000.00 or
greater. Tenant's rights to remove additions or alterations hereunder shall not
apply to replacement of items included in Tenant's Work that are replaced due to
the fact that such items have worn out or become substantially obsolete. In the
event the Tenant is required to or permitted to remove any such alteration or
addition, as a condition to Landlord's approval of such alteration or addition,
Tenant shall agree in writing to readapt, repair and restore the Premises to the
condition the same were in prior to such alteration or addition. After the
performance of Tenant's Work, all changes and additions shall be part of the
Building except such items as by writing at the time of approval the parties
agree either shall be removed by Tenant on termination of this Lease, or shall
be removed or left at Tenant's election.
During the Term hereof and the term of the Phase I Lease (as
hereinafter defined), Tenant, as part of Tenant's Work or as an alteration or
addition to the Premises after the performance of Tenant's Work, shall have the
right to make interconnections between the Building and the Phase I Building,
including installation of a covered walkway, electrical connections, utility
connections and the like (collectively "Interconnections"). Each Interconnection
proposed by Tenant shall require Landlord's prior written consent, which consent
shall not be unreasonably withheld and shall otherwise be subject to the terms
of this Lease, including the preceding paragraph hereof, except that the
original installation of any Interconnection shall not be considered a Minor
Alteration (as hereinafter defined). Landlord's consent to any Interconnection
pursuant to the
16
terms of this Lease shall also constitute Landlord's consent thereto pursuant to
the Phase I Lease so long as Landlord is the landlord pursuant to the Phase I
Lease. Landlord and Tenant agree that Landlord may (and prior to the Subdivision
(as defined in Section 9.1.6) Landlord shall) establish an area or areas to be
shown on the Plan (as defined in Section 9.1.6 hereof) within which
Interconnections may be made, and that except for the covered walkway and
Interconnections therein, Landlord may require subsurface installation of
Interconnections.
Notwithstanding the foregoing, the parties hereby agree that for any
non-structural alterations or additions to the Premises which do not involve
modifications to the Building operating systems and for which the cost may be
reasonably estimated to be less than $50,000 and which is not the original
installation of an Interconnection (each a "Minor Alteration"): (i) Landlord's
prior written consent shall not be required unless such Minor Alteration
requires a building permit from the City of Cambridge, in which case Landlord's
reasonable consent shall be required, provided that such consent shall be deemed
to have been given if Landlord fails to notify Tenant of its objection to such
Minor Alteration within 2 days after Tenant's request for Landlord's consent
with respect thereto, and (ii) upon the expiration or termination of this Lease,
Tenant shall readapt, repair and restore the Premises to the condition the same
were in prior to such Minor Alteration, regardless of whether Landlord's consent
was required or obtained with respect thereto. Additionally, Tenant shall give
prior written notice to Landlord of any Minor Alteration for which the cost may
be reasonably estimated to be less than $50,000 but greater than $25,000 and
regardless of whether Landlord's consent is required.
The parties further agree that after the performance of Tenant's Work
(a) any request for consent to any alteration or addition (including, without
limitation, any Minor Alteration and any Interconnection) shall be accompanied
by drawings and specifications in reasonable detail given the size and scope of
the proposed alteration or addition, and (b) Tenant shall furnish Landlord
as-built drawings showing any and all alterations or additions (including,
without limitation, any and all Minor Alterations and Interconnections) made by
Tenant or any assignee, sublessee or licensee of Tenant within 30 days after
completion of the same.
3.4 REPRESENTATIVES.
Each party authorizes the other to rely in connection with their
respective rights and obligations under this Article III upon approval and other
actions on the party's behalf by Landlord's Representative in the case of
Landlord and Tenant's Representative in the case of Tenant or by any person
hereafter designated in substitution or addition by notice to the party relying.
3.5 CORRECTION OF LANDLORD'S WORK.
If within one year after the Substantial Completion Date (i) any item
of Base Building Improvements does not conform with the plans and specifications
described in Exhibit B or (ii) there is any defect in the Base Building
Improvements caused by faulty workmanship performed on behalf of Landlord or
materials installed on behalf of Landlord, Landlord, upon written notice
17
thereof from Tenant prior to the expiration of such one-year period, shall
forthwith cause the contractor(s) who or which performed such work to correct
such nonconformity or defect without cost or expense to Tenant. Nothing set
forth in this Section shall affect or impair any warranties specified in Section
3.3 hereof or any right of Tenant to pursue any action, right or remedy
otherwise available to Tenant due to a breach by Landlord of its obligations
pursuant to this Lease.
ARTICLE IV
RENT
4.1 FIXED RENT.
(a) MONTHLY INSTALLMENTS; DEFINITIONS. COMMENCING ON THE RENT
COMMENCEMENT DATE, Tenant covenants and agrees to pay rent to Landlord, without
any offset or reduction whatsoever (except as may be made in accordance with the
express provisions of this Lease), at the Original Address of Landlord or at
such other place or to such other person or entity as Landlord may by notice to
Tenant from time to time direct, at the Annual Fixed Rent Rate set forth in
Article I, in equal installments equal to 1/12th of the Annual Fixed Rent Rate
in advance on the first day of each calendar month included in the Term; and for
any portion of a calendar month at the beginning or end of the Term, at that
rate payable in advance for such portion.
(b) ADJUSTMENT FOR CPI. On the fifth anniversary of the Rent
Commencement Date , on the tenth anniversary of the Rent Commencement Date (if
Tenant elects to have Landlord advance the Tenant Allowance), and on the fifth
anniversary of the commencement of each Extension Period (as such term is
defined in Section 10.12 hereof) (each an "Adjustment Date") the Annual Fixed
Rent Rate shall be increased by multiplying said rate by the lesser of (i) a
fraction, the numerator of which shall be the Price Index (as hereinafter
defined) most recently established prior to the Adjustment Date, and the
denominator of which shall be the Base Price Index (as hereinafter defined), or
(ii) one hundred four percent (104%) per year, compounded annually over the then
prior five (5) years of the Term of this Lease. As used herein, the term "Price
Index" shall mean and refer to the "Consumer Price Index for Urban Wage Earners
and Clerical Workers, for the Boston, Massachusetts area, All Items
(1982-84=100)" published by the Bureau of Labor Statistics of the United States
Department of Labor or successor or substitute index appropriately adjusted, and
the term "Base Price Index" shall mean and refer to the Price Index most
recently established prior to (a) the Commencement Date or (b) with respect to
any Extension Period, the commencement date of such Extension Period, as
applicable. In the event the Price Index (or a successor or substitute index)
shall not be published for the City of Boston, or for the months indicated
above, the corresponding index for the United States City Average (and if this
is not available, a reliable governmental or other nonpartisan publication
evaluating similar or equivalent information as used in the Price Index) shall
be used. In the event the Price Index ceases to use the 1982-84 average of 100
as the basis of calculation, or if a substantial change is made in the terms or
numbers of items contained in the Price Index, then the
18
Price Index shall be adjusted to the figure that would have been arrived at had
the manner of computing the Price Index in effect at the date of this Lease not
been changed.
4.2 ADDITIONAL RENT.
In order that the Fixed Rent shall be absolutely net to Landlord,
commencing on the Commencement Date, Tenant covenants and agrees to pay, as
Additional Rent, without any offset or reduction whatsoever, taxes, municipal or
state betterment assessments, insurance costs, utility charges and Annual
Maintenance Charges with respect to the Premises as provided in this Section 4.2
as follows:
As used herein, the term "Estimated Annual Additional Rent" shall mean
and refer to Landlord's estimate of the total amount of Additional Rent which
may be due from Tenant for any particular Lease Year. Landlord shall furnish
Tenant with a statement within sixty (60) days after the commencement of each
Lease Year setting forth the amount of Landlord's Estimated Annual Additional
Rent for such Lease Year. Landlord's good faith estimate of the Estimated Annual
Additional Rent for the first fiscal year of the Term is set forth in Section
1.1 as the "Initial Estimated Annual Additional Rent".
4.2.1 REAL ESTATE TAXES. Tenant shall pay directly to the Landlord: (i)
all taxes, assessments (special or otherwise), levies, fees, water and sewer
rents and charges, and all other government levies and charges, general and
special, ordinary and extraordinary, foreseen and unforeseen (and Tenant's
Proportionate Fraction of any such taxes, assessments, levies, fees and charges
if they are assessed against the entire Building or Lot), which are, at any time
prior to or during the Term hereof, imposed or levied upon or assessed against
(A) the Premises or the Building or the Lot, (B) any Fixed Rent, Additional Rent
or other sum payable hereunder or (C) this Lease, or the leasehold estate hereby
created, or which arise in respect of the operation, possession or use of the
Premises or the Building or the Lot; (ii) all gross receipts or similar taxes
imposed or levied upon, assessed against or measured by any Fixed Rent,
Additional Rent or other sum payable hereunder; (iii) all sales, value added,
use and similar taxes at any time levied, assessed or payable on account of the
acquisition, leasing or use of the Premises (and Tenant's Proportionate Fraction
of any such taxes if they are levied, assessed or payable on account of the
acquisition, leasing or use of the entire Building or Lot); and (iv) all charges
for utilities furnished to the Premises (and Tenant's Proportionate Fraction of
all charges for utilities furnished to the entire Building or Lot) which may
become a lien on the Building or the Lot or the Premises (collectively "taxes
and assessments" or if singular "tax or assessment"). For each tax or assessment
period, or installment period thereof, wholly included in the Term, all such
payments shall be made by Tenant not less than five (5) days prior to the last
date on which the same may be paid without interest or penalty. For any fraction
of a tax or assessment period, or installment period thereof, included in the
Term at the beginning or end thereof, Tenant shall pay to Landlord, within 20
days after receipt of invoice therefor, the fraction of taxes and assessments so
levied or assessed or becoming payable which is allocable to such included
period. At Landlord's option, Tenant shall pay taxes and assessments in
accordance with Section 4.2.5
19
hereof. Anything herein to the contrary notwithstanding, if and to the extent
that the Lot is not a separately assessed parcel, Landlord shall make a fair and
reasonable allocation of any taxes and assessments between the Lot and the
remaining parcel of land of which the Lot is a part.
In the event that Tenant requests that Landlord apply for any abatement
of, or otherwise contest, any tax or assessment, Landlord shall file such
abatement or otherwise contest such tax or assessment and shall diligently
pursue the same to completion, provided that (i) Landlord receives notice of
such request from Tenant be made under applicable law, and (ii) the expenses of
such proceedings, including, without limitation, any penalties, interest, late
fees or charges, and attorneys' fees incurred as a result thereof, shall be
included in the Annual Maintenance Charge of the then current fiscal year.
Nothing contained in this Lease shall, however, require Tenant to pay
any income taxes, excess profits taxes, excise taxes, franchise taxes ("Excluded
Taxes"), estate, succession, inheritance or transfer taxes, provided, however,
that if at any time during the Term the present system of ad valorem taxation of
real property shall be changed so that in lieu of the whole or any part of the
ad valorem tax on real property, there shall be assessed on Landlord a capital
levy or other tax on the gross rents received with respect to the Building or
the Lot, or all of them, or a federal, state, county, municipal, or other local
income, franchise, excise or similar tax, assessment, levy or charge (distinct
from any now in effect) measured by or based, whole or in part, upon gross
rents, then any and all of such taxes, assessments, levies or charges, to the
extent so measured or based ("Substitute Taxes"), shall be payable by Tenant;
provided, however, that (i) Tenant's obligation with respect to the aforesaid
Substitute Taxes shall be limited to the amount thereof as computed at the rates
that would be payable if the Premises were the only property of Landlord, and
(ii) only that portion of the Substitute Taxes in excess of the Excluded Taxes
shall be payable by Tenant. Landlord shall furnish to Tenant a copy of any
notice of any public, special or betterment assessment received by Landlord
concerning the Premises.
4.2.2 INSURANCE.
4.2.2.1. INSURANCE TAKEN OUT BY TENANT.
Tenant shall take out and maintain throughout
the Term the following insurance:
(a) Comprehensive liability insurance
indemnifying Landlord and Tenant against all claims and demands for (i) injury
to or death of any person or damage to or loss of property, on the Premises or
adjoining walks, streets or ways, or connected with the use, condition or
occupancy of any thereof unless caused by the negligence of Landlord or its
servants or agents, (ii) violation of this Lease, or (iii) any act, fault or
omission, or other misconduct of Tenant or its agents, contractors, licensees,
sublessees or invitees, in amounts which shall, at the beginning of the Term, be
at least equal to the limits set forth in Section 1.1, and, from time to time
during the Term, shall be for such higher limits, if any, as are customarily
carried in the area
20
in which the Premises are located on property similar to the Premises and
used for similar purposes; and shall be written on the "Occurrence Basis" and
include Host Liquor liability insurance; and
(b) Worker's compensation insurance with
statutory limits covering all of the Tenant's employees working on the Premises.
4.2.2.2 INSURANCE TAKEN OUT BY LANDLORD.
Landlord shall take out and maintain
throughout the Term the following insurance:
(a) Comprehensive liability insurance for the
Building and Lot of the same nature and type as described in Section 4.2.2.1(a)
of this Lease, and with the same policy limits; and
(b) All risk, fire and casualty insurance on
a 100% replacement cost basis, together with rental loss coverage and, if the
Building is located in a flood zone, flood coverage to the extent the same is
available, insuring the Building and its rental value; and
(c) Insurance against loss or damage from
sprinklers and from leakage or explosions or cracking of boilers, pipes carrying
steam or water, or both, pressure vessels or similar apparatus, in the so-called
"broad form", in such amounts as are customary and commercially reasonable for
buildings in the Cambridge, Massachusetts area which are of like kind and
quality to the Building and have laboratory uses, and insurance against such
other hazards and in such amounts as may from time to time be required by any
bank, insurance company or other lending institution holding a first mortgage on
the Building and Lot.
Landlord shall have no obligation to insure Tenant's
personal property or chattels, including without limitation, Tenant's trade
fixtures.
4.2.2.3 TENANT REIMBURSEMENT OF INSURANCE TAKEN OUT
BY LANDLORD.
Tenant shall from time to time reimburse
Landlord within thirty days of Landlord's invoice for Tenant's Proportionate
Fraction of Landlord's costs incurred in providing the insurance provided
pursuant to Section 4.2.2.2 of this Lease, equitably prorated in the case of
blanket policies to reflect the insurance coverage reasonably attributable to
the Premises, and provided further that Tenant shall reimburse Landlord for all
of Landlord's costs incurred in providing such insurance which is attributable
to any special endorsement or increase in premium resulting from the business or
operations of Tenant, and any special or extraordinary risks or hazards
resulting therefrom, including without limitation, any risks or hazards
associated with the generation, storage and disposal of medical waste. At
Landlord's option, Tenant shall reimburse Landlord for insurance costs in
accordance with Section 4.2.5 hereof.
21
4.2.2.4 CERTAIN REQUIREMENTS APPLICABLE TO INSURANCE
POLICIES.
Policies for insurance provided for under the
provisions of Sections 4.2.2.2(b) and 4.2.2.2(c) shall, in case of loss, be
first payable to the holders of any mortgages on the Building and Lot under a
standard mortgagee's clause, and shall be deposited with the holder of any
mortgage or with Landlord, as Landlord may elect. All policies for insurance
required to be obtained by either party under the provisions of Section 4.2.2
shall be obtained from responsible companies qualified to do business in the
state in which the Premises are located and in good standing therein, which
companies and the amount of insurance allocated thereto shall be subject to
Landlord's approval. Each party agrees to furnish the other with certificates of
all such insurance which such party is obligated to obtain pursuant to Section
4.2.2 prior to the beginning of the Term hereof and with renewal certificates at
least 30 days prior to the expiration of the policy they renew. In addition,
Tenant agrees to furnish Landlord with any policies of insurance which Tenant is
obligated to obtain hereunder, including any renewal policies, upon request of
any of Landlord's mortgagees (provided that Tenant may redact from such policies
any Confidential Information, as defined in Section 10.15 hereof). Each such
policy required to be maintained by Tenant shall name Landlord and Landlord's
Managing Agent as additional insureds and shall be noncancellable with respect
to the interest of Landlord, Landlord's Managing Agent and such mortgagees
without at least 30 days' prior written notice thereto.
4.2.2.5 WAIVER OF SUBROGATION.
All insurance which is carried by either
party with respect to the Premises or to furniture, furnishings, fixtures or
equipment therein or alterations or improvements thereto, whether or not
required, shall include provisions which either designate the other party as one
of the insured or deny to the insurer acquisition by subrogation of rights of
recovery against the other party to the extent such rights have been waived by
the insured party prior to occurrence of loss or injury, insofar as, and to the
extent that such provisions may be effective without making it impossible to
obtain insurance coverage from responsible companies qualified to do business in
the state in which the Premises are located (even though extra premium may
result therefrom) and without voiding the insurance coverage in force between
the insurer and the insured party. In the event that extra premium is payable by
either party as a result of this provision, the other party shall reimburse the
party paying such premium the amount of such extra premium. If at the request of
one party, this non-subrogation provision is waived, then the obligation of
reimbursement shall cease for such period of time as such waiver shall be
effective, but nothing contained in this Section 4.2.2.5 shall derogate from or
otherwise affect releases elsewhere herein contained of either party for claims.
Each party hereby waives all rights of recovery against the other for loss or
injury against which the waiving party is protected by insurance containing said
provisions, reserving, however, any rights with respect to any excess of loss or
injury over the amount recovered by such insurance. Tenant shall not acquire as
insured under any insurance carried on the Premises under the provisions of this
Section 4.2.2 any right to participate in the adjustment of loss or to receive
insurance proceeds and agrees upon
22
request promptly to endorse and deliver to Landlord any checks or other
instruments in payment of loss in which Tenant is named as payee.
4.2.3 UTILITIES.
Tenant shall pay directly to the proper authorities charged
with the collection thereof all charges for water, sewer, gas, electricity,
telephone and other utilities or services used or consumed on the Premises,
whether called charge, tax, assessment, fee or otherwise, including, without
limitation, water and sewer use charges and taxes, if any, all such charges to
be paid as the same from time to time become due. If Tenant is not charged
directly by the respective utility for any of such utilities or services, Tenant
shall from time to time, within 20 days of receipt of Landlord's invoice
therefor, pay to Landlord Tenant's Proportionate Fraction of the total of such
charges for the Building and Lot provided that, at Landlord's option, all such
charges shall be payable by Tenant in accordance with Section 4.2.5. It is
understood and agreed that (i) Landlord shall be responsible for bringing such
utilities to a common switching point(s) at the Building, which, in the case of
electricity shall mean the switch gear and not the transformer (collectively,
the "Utility Switching Points") as shown on plans described in Exhibit B at
Landlord's cost and expense; (ii) Tenant shall pay for any and all costs to
connect such utilities from such Utility Switching Points to the Building; (iii)
Landlord shall be under no obligation to furnish any utilities to the Premises
(beyond the foregoing responsibility to bring such utilities to the Utility
Switching Points and as may be shown on the plans described in Exhibit B); and
(iv) subject to Section 3.2 hereof, Landlord shall not be liable for any
interruption or failure in the supply of any such utilities to the Premises;
provided, however, that in the event such loss or failure is due to Landlord's
negligence or willful misconduct, Landlord shall be responsible for restoring
the supply of such utilities to the Premises but otherwise shall have no
liability to Tenant. Without limitation of the foregoing, in the event of a
Casualty or Taking, if Landlord and Tenant reasonably determine and agree that
utilities will not be repaired or restored so as to be available at the Utility
Switching Points within one year after the occurrence of such Casualty or
Taking, then Tenant shall have the right to terminate this Lease by notice given
within 30 days after the date of such determination.
4.2.4 COMMON AREA MAINTENANCE AND EXPENSES.
Landlord shall maintain the Lot and the exterior of the
Building in a clean and orderly condition including without limitation, keeping
the Lot and exterior of the Building clean and free of debris, keeping the
sidewalks, driveways and parking areas reasonably clear of snow and ice, and
maintaining the exterior landscaping, lighting, parking areas and sidewalks of
the Lot. Tenant shall maintain the interior of the Building, including the
mechanical, electrical and plumbing systems of the Building in good order,
repair and condition (provided that if Tenant shall fail to effect such repairs
or maintenance, at Landlord's option, Landlord may effect such repairs or
maintenance and charge the entire cost thereof to Tenant as Additional Rent).
Notwithstanding the foregoing, it is expressly understood and agreed that
Landlord shall have no liability or responsibility for the storage, containment
or disposal of any hazardous or medical
23
waste generated, stored or contained by Tenant, Tenant hereby agreeing to store,
contain and dispose of any and all such hazardous or medical waste at Tenant's
sole cost and expense in accordance with the provisions of Article V hereof.
Tenant shall pay to Landlord as Additional Rent the Annual Maintenance Charge
computed and payable as follows:
(1) The Annual Maintenance Charge shall be equal to the sum of the
Annual Lot Maintenance Charge and the Annual Building
Maintenance and Operation Charge as hereinafter defined.
(a) The Annual Lot Maintenance Charge shall be equal
to the costs incurred by Landlord during the fiscal year (as
hereinafter defined) for which the Annual Maintenance Charge
is being computed (the "Current Fiscal Year") in providing Lot
maintenance, including without limitation landscaping, street
lighting, security (if required, in Landlord's judgment),
maintenance and snow plowing, maintenance of Lot signage,
maintenance of utilities, management fees and amortization of
equipment to the extent used for Lot maintenance.
(b) The Annual Building Maintenance and Operation
Charge shall be equal to Tenant's Proportionate Fraction of
the reasonable costs incurred by Landlord during the Current
Fiscal Year in providing Building maintenance, including
without limitation maintenance and repair of all heating,
plumbing, electrical, air conditioning and mechanical fixtures
and equipment serving the Building or the Premises),
elevators, trash dumpster rental, trash removal, remediation,
performance of such other tasks as Tenant shall request and
Landlord shall agree to perform, management fees (exclusive of
leasing and sale commissions, fees paid in connection with
tenant improvement costs, and such other fees or commissions
paid in connection with the leasing, re-leasing, extension or
renewal of leases for the Building or the Lot) and
amortization of equipment to the extent used for Building
maintenance.
Notwithstanding the foregoing, management fees included in the Annual
Maintenance Charge shall not exceed those customarily charged for single tenant
buildings within a three-mile radius of the Lot which are used for purposes
similar to the use of the Building by Tenant and in the event that any capital
repair, improvement or replacement to the common areas and facilities of the
Building and the Lot made by Landlord has a useful life of over one year (as
determined in accordance with generally accepted accounting practices
consistently applied), then only the amortized cost of such repair, improvement
or replacement over said useful life shall be included in the Annual Lot
Maintenance Charge or the Annual Building Maintenance Charge, as applicable.
Tenant shall make payments on account of the Annual Maintenance Charge
monthly in advance on the first day of each calendar month during the Term. At
the beginning of every fiscal year, Landlord shall deliver to Tenant its
reasonable estimate of the Annual Maintenance Charge
24
(the "Estimated Annual Maintenance Charge") for the said fiscal year which
estimate may include a reasonable contingency of up to 5%, and Tenant shall make
payments on account of the Annual Maintenance Charge monthly in advance on the
first day of each calendar month during the Term in the amount of one-twelfth of
the Estimated Annual Maintenance Charge. Landlord reserves the right to
reasonably re-estimate and modify the Estimated Annual Maintenance Charge by
notice to Tenant once annually on or about July 1 of each Lease Year (the
"Additional Rent Adjustment Date"), and Tenant's payments shall thereupon be
adjusted accordingly. Not later than sixty (60) days after the end of each
fiscal year during the Term and after Lease termination, Landlord shall render a
statement ("Landlord's Statement") in reasonable detail and according to usual
accounting practices certified by Landlord and showing for the preceding fiscal
year or fraction thereof, as the case may be, the actual Annual Maintenance
Charges for the said fiscal year or fraction thereof, and thereupon any balance
owed by Tenant or excess paid by Tenant under this Section shall be paid to
Landlord, or credited to Tenant, as the case may be, on the next rent payment
date. Landlord shall furnish Tenant with copies of all reasonable documentation
and records for the Annual Maintenance Charges for any fiscal year upon Tenant's
request for the same; provided, however, that Landlord shall not be required to
furnish such copies for any fiscal year if Tenant has not requested such copies
within two (2) years after the expiration of such fiscal year.
For purposes of this Lease, the first "fiscal year" shall be the annual
period commencing on the Commencement Date and ending on December 31 of the year
in which the Commencement Date occurs; subsequently, the term "fiscal year,,
shall mean each consecutive annual period thereafter, commencing on the day
following the end of the preceding fiscal year. Landlord shall have the right
from time to time to change the periods of accounting under this Section 4.2.4
to any annual period other than a fiscal year, and upon any such change all
items referred to in this Section shall be appropriately apportioned. In all
Landlord's Statements rendered under this Section, amounts for periods partially
within and partially without the accounting periods shall be appropriately
apportioned, and any items which are not determinable at the time of a
Landlord's Statement shall be included therein on the basis of Landlord's
estimate, and with respect thereto Landlord shall render promptly after
determination a supplemental Landlord's Statement, and appropriate adjustment
shall be made according thereto. All of Landlord's Statements shall be prepared
on an accrual basis of accounting.
Notwithstanding any other provision of this Section 4.2.4, if the Term
expires or is terminated as of a date other than the last day of a fiscal year,
then for such fraction of a fiscal year at the end of the Term, Tenant's last
payment to Landlord under this Section 4.2.4 shall be made on the basis of
Landlord's best estimate of the items otherwise includable in Landlord's
Statement and shall be made on or before the later of (a) 10 days after Landlord
delivers such estimate to Tenant or (b) the last day of the Term. Landlord shall
thereafter prepare a Landlord's Statement showing the actual Annual Maintenance
Charge for such fiscal year, as hereinabove provided, and an appropriate payment
or refund shall thereafter promptly be made upon submission of such Landlord's
Statement to Tenant.
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Notwithstanding the foregoing, Landlord hereby agrees that HVAC service
and all other utilities shall be available to Tenant 24 hours per day, seven (7)
days per week, subject to the provisions hereof with respect to loss or
interruption of utilities and other services.
4.2.5 PAYMENTS ON ACCOUNT OF TAXES, INSURANCE AND UTILITIES.
Tenant shall make payments on account of the Annual Tax, Insurance and
Utility Charge (as hereinafter defined) monthly in advance on the first day of
each calendar month during the Term, which payments shall initially be in the
amount of the sum of the Initial Tax Charge, the Initial Insurance Charge and
the Initial Utility Charge (the "Estimated Initial Tax, Insurance and Utility
Charges"). At the beginning of every fiscal year, Landlord shall deliver to
Tenant its reasonable estimate of the Annual Tax, Insurance and Utility Charge
("the Estimated Annual Tax, Insurance and Utility Charge") for said fiscal year,
and, in lieu of payments of one twelfth of the Estimated Initial Tax, Insurance
and Utility Charge, Tenant shall make payments on account of the Annual Tax,
Insurance and Utility Charge monthly in advance on the first day of each
calendar month during the Term in the amount of one-twelfth of the Estimated
Annual Tax, Insurance and Utility Charge. Landlord reserves the right to
reasonably re-estimate and modify the Estimated Annual Tax, Insurance and
Utility Charge by notice to Tenant once annually on the Additional Rent
Adjustment Date (as defined in Section 4.2.4 hereof), and Tenant's payments
shall thereupon be adjusted accordingly.
Not later than sixty (60) days after the end of each fiscal year during
the Term and after Lease termination, Landlord shall render a statement in
reasonable detail and according to usual accounting practices certified by
Landlord and showing for the preceding fiscal year or fraction thereof, as the
case may be, the actual Annual Tax, Insurance and Utility Charge for the said
fiscal year or fraction thereof, and thereupon any balance owed by Tenant or
excess paid by Tenant under this Section shall be paid to Landlord, or credited
to Tenant, as the case may be, on the next rent payment date. As used herein,
the term "Annual Tax, Insurance and Utility Charge" shall mean and refer to the
amount of funds paid by Tenant pursuant to Section 4.2.1, 4.2.2 and 4.2.3 for
the fiscal year in question for costs actually incurred by Landlord (without any
xxxx-up for Landlord's overhead or profit). All payments under this Section
shall to the extent thereof relieve Tenant of its obligations under said
Sections 4.2.1, 4.2.2 and 4.2.3 hereof. Notwithstanding any other provision
hereof to the contrary, the Annual Tax, Insurance and Utility Charge and the
Annual Maintenance Charge payable by Tenant pursuant to this Lease shall not
include any amount payable by Tenant pursuant to a lease, as amended, by and
between Xxxxx X. Xxxx and Xxxxx X. Xxxx, Trustees of Fort Washington Realty
Trust, as landlord, and Tenant, as tenant, for premises known as and numbered
000 Xxxxxxx Xxxxxx and/or 00 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (the "Phase I
Lease"), PROVIDED HOWEVER, that Landlord may equitably allocate real estate
taxes until the Lot is separately assessed.
Landlord shall have the right from time to time to change the periods
of accounting under this Section 4.2.5 to any annual period other than a fiscal
year, and upon any such change all items referred to in this Section shall be
appropriately apportioned. In all Landlord's annual
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statements rendered under this Section, amounts for periods partially within and
partially without the accounting periods shall be appropriately apportioned, and
any items which are not determinable at the time of such a statement shall be
included therein on the basis of Landlord's estimate, and with respect thereto
Landlord shall render promptly after determination a supplemental statement, and
an appropriate adjustment shall be made according thereto. All of landlord's
statements under this Section shall be prepared on an accrual basis of
accounting.
Notwithstanding any other provision of this Section 4.2.5, if the Term
expires or is terminated as of a date other than the last day of a fiscal year,
then for such fraction of a fiscal year at the end of the Term, Tenant's last
payment to Landlord under this Section 4.2.5 shall be made on the basis of
Landlord's best estimate of the items otherwise includable in the annual
statement rendered by Landlord under this Section and shall be made on or before
the later of (a) 10 days after Landlord delivers such estimate to Tenant or (b)
the last day of the Term, with an appropriate payment or refund to be made upon
submission of Landlord's statement.
4.3 LATE PAYMENT OF RENT.
If any installment of rent is paid after the date the same was due, it
shall bear interest from the due date at the prime commercial rate of
BankBoston, N.A. or its successor(s), as it may be adjusted from time to time,
plus 4% per annum, but in no event more than the highest rate of interest
allowed by applicable law. Any amounts due under this Section 4.3 shall be
Additional Rent. The foregoing provisions of this Section 4.3 shall not apply to
the first two installments of rent paid after the date the same were due during
each twelve consecutive month period during the Term.
ARTICLE V
TENANT'S ADDITIONAL COVENANTS
5.1 AFFIRMATIVE COVENANTS.
Tenant covenants at its expense at all times during the Term and for
such further time as Tenant occupies the Premises or any part thereof:
5.1.1 PERFORM OBLIGATIONS.
To perform promptly all of the obligations of Tenant set forth
in this Lease; and to pay when due the Fixed Rent and Additional Rent and all
charges, rates and other sums which by the terms of this Lease are to be paid by
Tenant.
5.1.2 OCCUPANCY AND USE.
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Continuously from the Commencement Date, to use and occupy the
Premises only for the Permitted Uses, and from time to time to procure all
licenses and permits necessary therefor at Tenant's sole expense.
Without limitation, Tenant shall strictly comply with all
federal, state, and municipal laws, ordinances, and regulations governing the
use of Tenant's laboratory, scientific experimentation and the generation,
storage, containment and disposal of medical waste. Tenant shall be solely
responsible for procuring and complying at all times with any and all necessary
permits directly relating or incident to: the conduct of its office and research
activities on the Premises; its scientific experimentation, transportation,
storage, handling, use and disposal of any chemical or radioactive or
bacteriological or pathological substances or organisms or other hazardous
wastes or environmentally dangerous substances or materials or medical waste.
Within ten (10) days of a request by Landlord, which request shall be made not
more than once during each period of twelve (12) consecutive months during the
Term hereof, unless otherwise requested by any mortgagee of Landlord, Tenant
shall furnish Landlord with copies of all such permits which Tenant possesses or
has obtained together with a certificate certifying that such permits are all of
the permits which Tenant possesses or has obtained with respect to the Premises.
Tenant shall be entitled to redact any Confidential Information from the copies
of such permits and accompanying certificates of Tenant. Tenant shall promptly
give notice to Landlord of any warnings or violations relative to the above
received from any federal, state, or municipal agency or by any court of law and
shall promptly cure the conditions causing any such violations. Tenant shall not
be deemed to be in default of its obligations under the preceding sentence to
promptly cure any condition causing any such violation in the event that, in
lieu of such cure, Tenant shall contest the validity of such violation by
appellate or other proceedings permitted under applicable law, provided that:
(i) any such contest is made reasonably and in good faith, (ii) Tenant makes
provisions, including, without limitation, posting bond(s) or giving other
security, acceptable to Landlord to protect Landlord, the Building and the Lot
from any liability, costs, damages or expenses arising in connection with such
violation and failure to cure, (iii) Tenant shall agree to indemnify, defend
(with counsel reasonably acceptable to Landlord) and hold Landlord harmless from
and against any and all liability, costs, damages, or expenses arising in
connection with such condition and/or violation, (iv) Tenant shall promptly cure
any violation in the event that its appeal of such violation is overruled or
rejected, and (v) Tenant shall certify to Landlord's satisfaction that Tenant's
decision to delay such cure shall not result in any actual or threatened bodily
injury or property damage to Landlord, any tenant or occupant of the Building or
the Lot, or any other person or entity. Landlord agrees that any Confidential
Information gained or obtained by Landlord pursuant to this Section 5.1.2 shall
be kept confidential in accordance with Section 10.15 hereof.
5.1.3 REPAIR AND MAINTENANCE.
Except as otherwise provided in Article VI, to keep the
Premises including, without limitation, all fixtures and equipment now or
hereafter on the Premises, or exclusively serving the Premises, but excluding
the exterior (exclusive of glass and doors) and structural
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elements of the Building and the grounds and parking lot, which Landlord shall
maintain and repair unless such repairs are required because of Tenant's willful
misconduct or negligence, in good order, condition and repair and at least as
good order, condition and repair as they are in on the Commencement Date or may
be put in during the Term, reasonable use and wear only excepted; to keep in a
safe, secure and sanitary condition all trash and rubbish temporarily stored at
the Premises; and to make all repairs and replacements and to do all other work
necessary for the foregoing purposes whether the same may be ordinary or
extraordinary, foreseen or unforeseen. Tenant shall be responsible for heating
and air-conditioning systems serving the Premises to the extent that such
systems are not a part of Base Building Improvements, and Tenant shall secure,
pay for and keep in force contracts with appropriate and reputable service
companies providing for the regular maintenance of the heating and
air-conditioning systems serving the Premises to the extent that such systems
are not a part of Base Building Improvements, and copies of such contracts shall
be furnished to Landlord. It is further agreed that the exception of reasonable
use and wear shall not apply so as to permit Tenant to keep the Premises in
anything less than suitable, tenantlike, and efficient and usable condition
considering the nature of the Premises and the use reasonably made thereof, or
in less than good and tenantlike repair.
5.1.4 COMPLIANCE WITH LAW.
To make all repairs, alterations, additions or replacements to
the Premises required by any law or ordinance or any order or regulation of any
public authority other than major capital repairs, alterations, additions or
replacements to the foundations and structural elements of the Building which
are not required because of Tenant's failure to comply with the provisions of
Section 5.1.3 hereof; to keep the Premises equipped with all safety appliances
so required; to pay all municipal, county, or state taxes assessed against the
leasehold interest hereunder, or against personal property of any kind on or
about the Premises; and to comply with the orders and regulations of all
governmental authorities with respect to zoning, building, fire, health and
other codes, regulations, ordinances or laws applicable to the Premises.
Tenant shall not use, generate, manufacture, produce, handle,
store, release, discharge or dispose of in, on, under or about the Premises or
transport to or from the Premises, or allow its employees, agents, contractors,
invitees or any other person or entity to do so, any oil, hazardous or toxic
materials or hazardous or toxic wastes or medical waste (collectively,
"hazardous materials") except to the extent that the following conditions
regarding the use, generation, manufacture, production, handling, storing,
releasing, discharging, disposal or transport (individually or collectively, the
"Use") of hazardous materials shall be satisfied: (i) the Use shall be directly
related to the operation of Tenant's business as permitted herein, (ii) Tenant
shall first provide Landlord with the list of the types and quantities of such
proposed hazardous materials which Tenant is required to furnish to the
applicable governmental authorities for purposes of compliance with the Resource
Conservation and Recovery Act, as amended (42 U.S.C. ss. 9601, ET Seq.) (the
"RCRA List") (or, in the event that the RCRA List ceases to be required to be
filed under such law, a list containing the same information required to
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be listed on the RCRA List as of the date hereof), and shall update such list as
necessary for continuing accuracy, and such other information reasonably
satisfactory to Landlord as Landlord may reasonably require concerning such Use,
and (iii) such Use shall be in strict compliance (at Tenant's expense) with all
applicable laws, regulations, licenses and permits. Landlord hereby covenants
and agrees that the information contained in any list, or update thereof,
referred to in the foregoing clause (ii) shall be kept confidential in
accordance with Section 10.15 hereof. Notwithstanding the foregoing, Tenant
hereby agrees to consult and coordinate with Landlord prior to transporting any
hazardous materials to or from the Premises whenever (i) such transportation is
not of the kind regularly made during the ordinary course of business by a
person or entity operating a laboratory facility for the Permitted Uses or (ii)
Tenant has reason to believe that such transportation may result in a public
demonstration, protest or other similar disturbance at the Building or the Lot.
If the transportation, generation, manufacture, production, handling, release,
storage, use or disposal of any hazardous materials anywhere on the Premises in
connection with the Tenant's use of the Premises results in (1) contamination of
the soil, surface or ground water or (2) loss or damage to person(s) or
property, then Tenant agrees to respond in accordance with the following
paragraph:
Tenant agrees (i) to notify Landlord immediately of any
contamination, claim of contamination, loss or damage, (ii)
after consultation and approval by Landlord, to clean up the
contamination in full compliance with all applicable statutes,
regulations and standards, and (iii) to indemnify, defend
(with counsel acceptable to Landlord) and hold Landlord
harmless from and against any claims, suits, causes of action,
costs and fees, including attorneys' fees, arising from or
connected with any such contamination, claim of contamination,
loss or damage. No consent or approval of Landlord shall in
any way be construed as imposing upon Landlord any liability
for the means, methods, or manner of removal, containment or
other compliance with applicable law for and with respect to
the foregoing.
Tenant shall promptly notify Landlord upon Tenant's receipt of
any inquiry, notice, or threat to give notice by any government authority or any
other third party with respect to any hazardous materials. Notwithstanding the
foregoing, Tenant shall not be liable to Landlord hereunder for any
contamination, claim of contamination, loss or damage arising in connection with
hazardous materials to the extent the same is the result of (A) hazardous
materials existing in the Building and the Lot prior to Tenant's use or
occupancy of the Premises, (B) migration of hazardous materials from any site
onto the Lot not caused by Tenant, (C) the generation, manufacture, production,
handling, release, storage, use or disposal of any hazardous materials at the
Building or the Lot by Landlord, any other tenant or occupant, or any so-called
"mid-night dumpers" or (D) the Use (as defined above in this Section) by any
party other than Tenant of hazardous materials at the Building or the Lot after
the date upon which Tenant has completely vacated the same, including removal of
all of its property (to the extent permitted
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herein) and hazardous materials. Tenant's indemnification obligations under this
Section shall survive the expiration or earlier termination of this Lease.
Prior to vacating the Premises at the expiration of the Term
hereof, Tenant at its sole cost and expense shall provide Landlord with an
environmental audit by a qualified environmental engineering firm satisfactory
to Landlord, which audit shall include reasonable subsurface testing if
requested by Landlord. The aforesaid environmental audit shall affirmatively
certify that the Premises are free from any and all contaminants, pollutants,
radioactive materials, hazardous wastes or materials, medical waste,
bacteriological agents or organisms which would render the Premises in violation
of M.G.L. c. 21E, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Section 9602 ET SEQ., or any other
applicable laws, rules, regulations or orders, as they may be amended or
supplemented by administrative regulations, from time to time.
Nothing herein contained shall be construed to limit or impair
Tenant's obligation to comply with any law, code, rule or regulation which
requires Tenant to notify any governmental authority or any other person
concerning the Use (as defined above in this Section) of hazardous materials by
Tenant at the Premises.
Tenant agrees that, with respect to the Premises, it shall be
responsible for compliance with the Americans with Disabilities Act (42 U.S.C.
ss. 12101 ET Seq.) and the regulations and Accessibility Guidelines for
Buildings and Facilities issued pursuant thereto (collectively, the "ADA
Requirements"), except to the extent that the Base Building Improvements are
subject to ADA Requirements, in which event Landlord shall be responsible for
compliance of the Base Building Improvements therewith.
Tenant covenants and agrees that its use of the Premises shall
not cause a discharge of more than its pro rata share on a square foot basis of
the design flow gallonage per day of sanitary (non-industrial) sewage allowed
under the sewage discharge permit(s) for the Building. Discharges in excess of
that amount, and any discharge of industrial sewage, shall only be permitted if
Tenant, at its sole expense, shall have obtained all necessary permits and
licenses therefor, including without limitation permits from state and local
authorities having jurisdiction thereof.
5.1.5 TENANT'S WORK.
To procure at Tenant's sole expense all necessary permits and
licenses before Tenant undertakes any work on the Premises; to do all such work
in compliance with the applicable provisions of Sections 3.2.1, 3.3 and 5.2.3
hereof; to do all such work in a good and workmanlike manner employing materials
of good quality and so as to conform with all applicable zoning, environmental,
building, fire, health and other codes, regulations, ordinances and laws and the
ADA Requirements; to furnish to Landlord prior to the commencement of any such
work, or any other such work for which the cost may reasonably be estimated to
exceed
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$100,000, a bond or other security acceptable to Landlord assuring that
any work commenced or continued by Tenant will be completed in accordance with
specifications approved in advance in writing by Landlord; to keep the Premises
at all times free of liens for labor and materials; to employ for such work one
or more responsible contractors whose labor will work without interference with
other labor working on the Premises; to require such contractors employed by
Tenant to carry worker's compensation insurance in accordance with statutory
requirements and comprehensive public liability insurance covering any general
contractors on or about the Premises in amounts that at least equal the limits
set forth in Section 1.1 and to submit certificates evidencing such coverage to
Landlord prior to the commencement of such work; and to save Landlord harmless
and indemnified from all injury, loss, claims or damage to any person or
property occasioned by or growing out of such work. Notwithstanding any other
provision of this Section 5.1.5 or any other provision of this Lease to the
contrary, Landlord shall not, subject to applicable law, prohibit Tenant from
using non-union labor to perform any work at the Premises, including Tenant's
Work. Without limitation of the foregoing, Landlord shall not require Tenant's
employees to unionize.
5.1.6 INDEMNITY.
To defend, with counsel approved by Landlord, all actions
against Landlord, any partner, trustee, stockholder, officer, director, employee
or beneficiary of Landlord, holders of mortgages secured by the Premises or the
Building and Lot and any other party having an interest in the Premises
("Indemnified Parties") with respect to, and to pay, protect, indemnify and save
harmless, to the extent permitted by law, all Indemnified Parties from and
against, any and all liabilities, losses, damages, costs, (including reasonable
attorneys' fees and expenses), causes of action, suits, claims, demands or
judgments of any nature arising from (i) injury to or death of any person, or
damage to or loss of property, on the Premises or on adjoining streets or ways
connected with the use or occupancy thereof by Tenant or its agents,
contractors, licensees, employees, sublessees or invitees, unless and to the
extent caused by the negligence of Landlord or its servants or agents, (ii)
violation of this Lease by Tenant or its agents, contractors, licensees,
employees, sublessees or invitees, or (iii) any act, fault, omission, or other
misconduct of Tenant or its agents, contractors, licensees, employees,
sublessees or invitees.
5.1.7 LANDLORD'S RIGHT TO ENTER.
To permit Landlord and its agents to enter into the Premises
at reasonable times and upon at least 24 hours advance notice (except in case of
emergency in which event no prior notice shall be required) to examine the
Premises, make such repairs and replacements as Landlord may elect, without
however, any obligation to do so except as may be otherwise expressly set forth
in this Lease, and show the Premises to prospective purchasers and lenders, and,
during the last twelve months of the Term, to show the Premises to prospective
tenants and to keep affixed in suitable places notices of availability of the
Premises. Landlord's right to enter the Premises in accordance with the
foregoing shall be subject to Landlord's obligations pursuant to Section 10.15
hereof. Notwithstanding the foregoing, Landlord agrees that in the event that
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Landlord shows the Premises to any prospective purchaser or tenant, Landlord
shall: (i) provide at least three (3) days' notice to Tenant identifying the
prospective purchaser or tenant, (ii) only show the Premises to such purchaser
or tenant if Landlord believes in good faith that such person or entity is a
bona fide prospective purchaser or tenant, (iii) conduct such showing in
compliance with such reasonable requests and instructions as Tenant may make for
purposes of protecting Tenant's Confidential Information.
5.1.8 PERSONAL PROPERTY AT TENANT'S RISK.
All of the furnishings, fixtures, equipment, effects and
property of every kind, nature and description owned or leased by Tenant or by
any person claiming by, through or under Tenant which, during the continuance of
this Lease or any occupancy of the Premises by Tenant or anyone claiming under
Tenant, may be on the Premises (collectively, "Tenant's Property"), shall, as
between the parties, be at the sole risk and hazard of Tenant and if the whole
or any part thereof shall be destroyed or damaged by fire, water or otherwise,
or by the leakage or bursting of water pipes, steam pipes, or other pipes, by
theft or from any other cause, no part of said loss or damage is to be charged
to or to be borne by Landlord, except that Landlord shall in no event be
indemnified or held harmless or exonerated from any liability to Tenant or to
any other person, for any injury, loss, damage or liability to the extent (i)
such injury, loss, damage or liability is the result of the negligence or
willful misconduct of Landlord, its contractors, agents or employees, or (ii)
such indemnification, agreement to hold harmless or exoneration is prohibited by
law.
5.1.9 PAYMENT OF LANDLORD'S COST OF ENFORCEMENT.
To pay on demand Landlord's expenses, including reasonable
attorney's fees, incurred in enforcing any obligation of Tenant under this Lease
or in curing any default by Tenant under this Lease as provided in Section 7.4.
5.1.10 YIELD UP.
Subject to Section 3.3 hereof, at the expiration of the Term
or earlier termination of this Lease: to surrender all keys to the Premises; to
remove all of its trade fixtures and personal property in the Premises; to
remove such installations and improvements made by Tenant as Landlord may
request and all Tenant's signs wherever located; to repair all damage caused by
such removal; and to yield up the Premises (including all installations and
improvements made by Tenant except for trade fixtures and such of said
installations or improvements as Landlord shall request Tenant to remove),
broom-clean and in the same good order and repair in which Tenant is obliged to
keep and maintain the Premises by the provisions of this Lease. Subject to
Section 3.3 hereof, any property not so removed shall be deemed abandoned and
may be removed and disposed of by Landlord in such manner as Landlord shall
determine and Tenant shall pay Landlord the entire cost and expense incurred by
Landlord in effecting such removal and disposition and in making any incidental
repairs and replacements to the Premises and for use and
33
occupancy during the period after the expiration of the Term and prior to
Tenant's performance of its obligations under this Section 5.1.10. Tenant shall
further indemnify Landlord against all loss, cost and damage resulting from
Tenant's failure and delay in surrendering the Premises as above provided.
5.1.11 ESTOPPEL CERTIFICATE.
Upon not less than 10 days' prior notice by Landlord, to
execute, acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect and that except as
stated therein Tenant has no knowledge of any defenses, offsets or counterclaims
against its obligations to pay the Fixed Rent and Additional Rent and any other
charges and to perform its other covenants under this Lease (or, if there have
been any modifications that the Lease is in full force and effect as modified
and stating the modifications and, if there are any defenses, offsets or
counterclaims, setting them forth in reasonable detail), the dates to which the
Fixed Rent and Additional Rent and other charges have been paid and a statement
that, to the best of Tenant's knowledge, Landlord is not in default hereunder
(or if in default, the nature of such default, in reasonable detail) and such
other matters reasonably required by Landlord or any prospective purchaser or
mortgagee of the Premises. Any such statement delivered pursuant to this Section
5.1.11 may be relied upon by any prospective purchaser or mortgagee of the
Premises, or any prospective assignee of any such mortgage.
5.1.12 LANDLORD'S EXPENSES RE CONSENTS.
To reimburse Landlord promptly on demand for all reasonable
legal expenses incurred by Landlord in connection with all requests by Tenant
for consent or approval under this Lease. Notwithstanding the foregoing, Tenant
shall not be liable for any reasonable legal expenses incurred by Landlord for
the first two (2) such requests made by Tenant during each period of twelve (12)
consecutive calendar months during the Term.
5.1.13 RULES AND REGULATIONS.
To comply with the Rules and Regulations set forth in Exhibit
C, as the same may be amended from time to time by Landlord to provide for the
beneficial operation of the Building and/or Lot, provided that such amendments
do not materially interfere with Tenant's right of use and enjoyment of the
Premises pursuant to this Lease.
5.1.14 LOADING.
Not to place Tenant's Property, as defined in Section 5.1.8,
upon the Premises so as to exceed the floor load limits set forth in EXHIBIT D
attached hereto and not to move any safe, vault or other heavy equipment in,
about or out of the Premises except in such manner and at such times as Landlord
shall in each instance approve; Tenant's business machines and mechanical
equipment which cause vibration or noise that may be detectable outside of the
34
Building shall be placed or maintained by Tenant in settings of cork, rubber,
spring, or other types of vibration eliminators sufficient to reduce such
vibration or noise to a level reasonably acceptable to Landlord.
5.1.15 HOLDOVER.
To pay to Landlord (i) the greater of twice (a) the then fair
market rent as reasonably determined by Landlord or (b) the total of the Fixed
Rent, Additional Rent, and all other payments then payable hereunder, for each
month or portion thereof Tenant shall retain possession of the Premises or any
part thereof after the termination of this Lease, whether by lapse of time or
otherwise, and (ii) all damages sustained by Landlord on account thereof;
provided, however, that any payments made by Tenant under the foregoing clause
(i) in excess of the then fair market rent for the Premises as so reasonably
determined by Landlord shall be applied against any damages under the foregoing
clause (ii). The provisions of this subsection shall not operate as a waiver by
Landlord of the right of re-entry provided in this Lease.
5.2 NEGATIVE COVENANTS.
Tenant covenants at all times during the Term and for such further time
as Tenant occupies the Premises or any part thereof:
5.2.1 ASSIGNMENT AND SUBLETTING.
Not without the prior written consent of Landlord to assign
this Lease, to make any sublease, or to permit occupancy of the Premises or any
part thereof by anyone other than Tenant, voluntarily or by operation of law,
except as hereinafter provided; as Additional Rent, to reimburse Landlord
promptly for reasonable legal and other expenses incurred by Landlord in
connection with any request by Tenant for consent to assignment or subletting
(subject to the provisions of Section 5.1.12 hereof); no assignment or
subletting shall affect the continuing primary liability of Tenant (which,
following assignment, shall be joint and several with the assignee); no consent
to any of the foregoing in a specific instance shall operate as a waiver in any
subsequent instance. Landlord's consent to any proposed assignment or subletting
is required both as to the terms and conditions thereof and as to the
consistency of the proposed assignee's or subtenant's business with other uses
and tenants in the Building. In addition, as to any assignee (but not as to any
sublessee) Landlord's consent shall be required as to the reasonable
creditworthiness of the proposed assignee in view of market conditions then
prevailing for leases having terms and conditions comparable to this Lease.
Landlord's consent to any assignment or subletting by Tenant shall not be
unreasonably withheld, provided that Tenant is not then in default under this
Lease and that such assignee or subtenant pays therefor the greater of the Fixed
Rent, Additional Rent, and all other payments then payable hereunder, or the
then fair market rent for the Premises. If Tenant requests Landlord's consent to
assign this Lease or to sublet any portion of the Premises such that Tenant
shall not occupy at least 40,000 r.s.f. of the Premises after the date of
commencement of such sublease, Landlord shall have the option, exercisable by
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written notice to Tenant given within 10 days after receipt of such request, to
terminate this Lease as of the date of commencement the proposed sublease or
assignment; provided, however, that Tenant shall have the right to rescind any
such request in the event Landlord elects to so terminate this Lease by notice
given to Landlord within five (5) days after the date of such termination notice
from Landlord, in which event such termination notice shall be of no further
force or effect;
If, at any time during the Term of this Lease, Tenant is:
(i) a corporation or a trust (whether or not
having shares of beneficial interest) and there shall occur any change in the
identity of any of the persons then having power to participate in the election
or appointment of the directors, trustees or other persons exercising like
functions and managing the affairs of Tenant; or
(ii) a partnership or association or otherwise
riot a natural person (and is not a corporation or a trust) and there shall
occur any change in the identity of any of the persons who then are members of
such partnership or association or who comprise Tenant;
Tenant shall so notify Landlord and Landlord may terminate this Lease by notice
to Tenant given within 90 days thereafter if, in Landlord's reasonable judgment,
the credit of Tenant is thereby impaired. This paragraph shall not apply if the
initial Tenant named herein is a corporation and the outstanding voting stock
thereof is listed on a recognized securities exchange.
Notwithstanding the foregoing provisions of this Section 5.2.1, Tenant
may assign this Lease or sublet any portion of the Premises without Landlord's
consent to (i) any successor of Tenant resulting from an acquisition of all or
substantially all of Tenant's assets or a merger or consolidation of Tenant and
(ii) any Affiliate of Tenant (as hereinafter defined) whose net worth is equal
to or greater than the net worth of Tenant as of the date hereof, provided that
Tenant provides Landlord at least thirty (30) days prior notice of such
assignment or subletting pursuant to either of the foregoing clauses (i) or
(ii). As used herein, the term "Affiliate of Tenant" shall mean and refer to any
entity controlled by, controlling or under common control with Tenant.
In the event that any assignee or subtenant pays to Tenant any amounts
in excess of the Fixed Rent, Additional Rent, and all other payments then
payable hereunder, or pro rata portion thereof on a square footage basis for any
portion of the Premises (such excess being hereinafter referred to as "Sublease
Profits"), Tenant shall promptly pay fifty percent (50%) of said Sublease
Profits to Landlord as and when received by Tenant after deduction of Tenant's
Sublease Costs (as hereinafter defined). The term "Sublease Costs" shall mean
and refer to Tenant's reasonable legal, brokerage and construction costs and
expenses incurred in good faith in view of the size and expected term of any
applicable sublease or assignment. Sublease Costs shall be amortized over the
term of the applicable sublease or assignment.
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5.2.2 NUISANCE.
Not to injure, deface or otherwise harm the Premises; nor
commit any nuisance; nor permit the emission of any noise, vibration or odor
which is contrary to any law or ordinance; nor make, allow or suffer any waste;
nor make any use of the Premises which is improper, offensive or contrary to any
law or ordinance or which will invalidate any of Landlord's insurance.
5.2.3 INSTALLATION, ALTERATIONS OR ADDITIONS.
Subject to the provisions of Section 3.2.1, 3.3 and Section
5.1.5 hereof, not to make any installations, alterations, or additions in, to or
on the Premises (including, without limitation, buildings, lawns, planted areas,
walks, roadways, parking and loading areas, but expressly excluding the initial
Tenant's Work, provided the same is approved by Landlord, such approval not to
be unreasonably withheld or delayed), nor, except for Tenant's Work approved by
Landlord, to permit the making of any apertures in the walls, partitions,
ceilings or floors without on each occasion obtaining the prior written consent
of Landlord and then only pursuant to plans and specifications approved by
Landlord in advance in each instance.
ARTICLE VI
CASUALTY OR TAKING
6.1 TERMINATION.
In case during the period which is thirty (30) months prior to the
expiration of the Term all or any substantial part of the Premises or of the
Building or of the Lot or any one or more of them shall be taken by any public
authority or for any public use, or shall be destroyed or damaged by fire or
casualty, or by the action of any public authority, or Landlord receives
compensable damage by reason of anything lawfully done in pursuance of public or
other authority, (hereinafter referred to as the "Casualty or Taking"), then
this Lease may be terminated at the election of Landlord. Such election, which
may be made notwithstanding the fact that Landlord's entire interest may have
been divested, shall be made by the giving of notice by Landlord to Tenant
within 30 days after the Casualty or Taking.
6.2 RESTORATION.
If Landlord does not exercise said election (or is not entitled to
exercise said election in the case of a Casualty or Taking occurring more than
thirty (30) months prior to the expiration of the Term of this Lease), this
Lease shall continue in force and a just proportion of the rent reserved,
according to the nature and extent of the damages sustained by the Premises, but
not in excess of an equitable proportion of the net proceeds of insurance
recovered by Landlord under the rental insurance coverage carried pursuant to
Section 4.2.2.2, shall be abated from the date of the
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Casualty or Taking until the Premises, or what may remain thereof, shall be put
by Landlord in proper condition for use subject to zoning and building laws or
ordinances then in existence, which, unless Landlord has exercised its option to
terminate pursuant to Section 6.1, Landlord covenants to do with reasonable
diligence at Landlord's expense, provided that Landlord's obligations with
respect to restoration shall not require Landlord to expend more than the net
proceeds of insurance recovered or damages awarded for such Casualty or Taking.
"Net proceeds of insurance recovered or damages awarded" refers to the gross
amount of such insurance or damages less the reasonable expenses of Landlord in
connection with the collection of the same, including without limitation, fees
and expenses for legal and appraisal services.
Notwithstanding the foregoing, in the event that Landlord's architect
reasonably determines that the Premises will not be repaired or restored (to the
extent permitted by the net proceeds of insurance recovered or damages awarded
from such Casualty or Taking) within one year after the occurrence of such
Casualty or Taking then Tenant shall have the right to terminate this Lease by
notice given within thirty (30) days after the date of such determination.
6.3 AWARD.
Irrespective of the form in which recovery may be had by law, all
rights to damages or compensation shall belong to Landlord in all cases except
as set forth below in this Section 6.3. Tenant hereby grants to Landlord all of
Tenant's rights to such damages and compensation and covenants to deliver such
further assignments thereof as Landlord may from time to time request. It is
agreed and understood, however, that Landlord does not reserve to itself, and
Tenant does not assign to Landlord, any damages payable for (i) movable trade
fixtures installed by Tenant or anybody claiming under Tenant, at its own cost
and expense or (ii) relocation expenses or damages for loss of business (in
excess of any such damages attributable to the value of this lease) recoverable
by Tenant from such authority in a separate action.
ARTICLE VII
DEFAULTS
7.1 EVENTS OF DEFAULT.
(a) If Tenant shall default in the performance of any of its
obligations to pay the Fixed Rent or Additional Rent hereunder and if such
default shall continue for 10 days after notice from Landlord to Tenant
(provided, however, that Landlord shall not be required to provide such notice
more than two (2) times in any period of twelve (12) consecutive calendar
months) or if within 30 days after notice from Landlord to Tenant specifying any
other default or defaults Tenant has not commenced diligently to correct the
default or defaults so specified or has not thereafter diligently pursued such
correction to completion, or (b) if any assignment for the benefit of creditors
shall be made by Tenant, or by any guarantor of Tenant, or (c) if Tenant's
leasehold interest shall be taken on execution or other process of law in any
action against
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Tenant, or (d) if a lien or other involuntary encumbrance is filed against
Tenant's leasehold interest, and is not discharged within thirty (30) days
thereafter, or (e) if a petition is filed by Tenant or any guarantor of Tenant
for liquidation, or for reorganization or an arrangement or any other relief
under any provision of the Bankruptcy Code as then in force and effect, or (f)
if an involuntary petition under any of the provisions of said Bankruptcy Code
is filed against Tenant or any guarantor of Tenant and such involuntary petition
is not dismissed within ninety (90) days thereafter, or (g) if Tenant fails to
maintain the insurance required under Section 4.2.2.1 hereof, then, and in any
of such cases, Landlord and the agents and servants of Landlord lawfully may, in
addition to and not in derogation of any remedies for any preceding breach of
covenant, immediately or at any time thereafter and without demand or notice, at
Landlord's election, do any one or more of the following: (1) give Tenant
written notice stating that the Lease is terminated, effective upon the giving
of such notice or upon a date stated in such notice, as Landlord may elect, in
which event the Lease shall be irrevocably extinguished and terminated as stated
in such notice without any further action, or (2) with or without process of
law, in a lawful manner and without illegal force, enter and repossess the
Premises as of Landlord's former estate, and expel Tenant and those claiming
through or under Tenant, and remove its and their effects, without being guilty
of trespass, in which event the Lease shall be irrevocably extinguished and
terminated at the time of such entry, or (3) pursue any other rights or remedies
permitted by law. Any such termination of the Lease shall be without prejudice
to any remedies which might otherwise be used for arrears of rent or prior
breach of covenant, and in the event of such termination Tenant shall remain
liable under this Lease as hereinafter provided. Tenant hereby waives all
statutory rights of redemption and Landlord, without notice to Tenant, may store
Tenant's effects, and those of any person claiming through or under Tenant, at
the expense and risk of Tenant, and, if Landlord so elects, may sell such
effects at public auction or private sale and apply the net proceeds to the
payment of all sums due to Landlord from Tenant, if any, and pay over the
balance, if any, to Tenant.
7.2 REMEDIES.
In the event that this Lease is terminated under any of the provisions
contained in Section 7.1 or shall be otherwise terminated for breach of any
obligation of Tenant, Tenant covenants to pay forthwith to Landlord, as
compensation, the excess of the total rent reserved for the residue of the Term
over the fair market rental value of the Premises for said residue of the Term.
In calculating the rent reserved there shall be included, in addition to the
Fixed Rent and Additional Rent, the value of all other considerations agreed to
be paid or performed by Tenant during said residue. Tenant further covenants (as
additional and cumulative obligations) after any such termination to pay
punctually to Landlord all the sums and to perform all the obligations which
Tenant covenants in this Lease to pay and to perform in the same manner and to
the same extent and at the same time as if this Lease had not been terminated.
In calculating the amounts to be paid by Tenant pursuant to the next preceding
sentence Tenant shall be credited with any amount paid to Landlord as
compensation as in this Section 7.2 provided and also with the net proceeds of
any rent obtained by Landlord by reletting the Premises, after deducting all of
the Landlord's reasonable expenses in connection with such reletting, including,
without limitation,
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all repossession costs, brokerage commissions, fees for legal services and
expenses of preparing the Premises for such reletting, it being agreed by Tenant
that Landlord may (i) relet the Premises or any part or parts thereof, for a
term or terms which may at Landlord's option be equal to or less than or exceed
the period which would otherwise have constituted the balance of the Term and
may grant such concessions and free rent as Landlord in its reasonable judgment
considers advisable or necessary to relet the same and (ii) make such
alterations, repairs and decorations in the Premises as Landlord in its
reasonable judgment considers advisable or necessary to relet the same, and no
action of Landlord in accordance with the foregoing or failure to relet or to
collect rent under reletting shall operate or be construed to release or reduce
Tenant's liability as aforesaid.
In lieu of any other damages or indemnity and in lieu of full recovery
by Landlord of all sums payable under all the foregoing provisions of this
Section 7.2, Landlord may by notice to Tenant, at any time after this Lease is
terminated under any of the provisions contained in Section 7.1 or is otherwise
terminated for breach of any obligation of Tenant and before such full recovery,
elect to recover, and Tenant shall thereupon pay, as liquidated damages, an
amount equal to the aggregate of the Fixed Rent and Additional Rent accrued in
the 12 months ended next prior to such termination, plus the amount of rent of
any kind accrued and unpaid at the time of termination and less the amount of
any recovery by Landlord under the foregoing provisions of this Section 7.2 up
to the time of payment of such liquidated damages.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater than, equal to, or less than the amount of the loss or
damages referred to above.
7.3 REMEDIES CUMULATIVE.
Any and all rights and remedies which either Landlord or Tenant may
have under this Lease, and at law and equity, shall be cumulative and shall not
be deemed inconsistent with each other, and any two or more of all such rights
and remedies may be exercised at the same time insofar as permitted by law.
7.4 LANDLORD'S RIGHT TO CURE DEFAULTS.
Landlord may, but shall not be obligated to, cure, at any time,
following 10 days' prior notice to Tenant, except in cases of emergency when no
notice shall be required, any default by Tenant under this Lease; and whenever
Landlord so elects, all costs and expenses incurred by Landlord, including
reasonable attorneys' fees, in curing a default shall be paid by Tenant to
Landlord as Additional Rent on demand, together with interest thereon at the
rate provided in Section 4.3 from the date of payment by Landlord to the date of
payment by Tenant.
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7.5 EFFECT OF WAIVERS OF DEFAULT.
Any consent or permission by Landlord or Tenant to any act omission by
the other party which otherwise would be a breach of any covenant or condition
herein, or any waiver by Landlord or Tenant of the breach of any covenant or
condition herein by the other party, shall not in any way be held or construed
(unless expressly so declared) to operate so as to impair the continuing
obligation of any covenant or condition herein, or otherwise, except as to the
specific instance, operate to permit similar acts or omissions.
The failure of Landlord or Tenant to seek redress for violation of, or
to insist upon the strict performance of, any covenant or condition of this
Lease by the other party shall not be deemed a waiver of such violation nor
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of an original violation. The receipt by
Landlord, or the payment by Tenant, as the case may be, of rent with knowledge
of the breach of any covenant of this Lease shall not be deemed to have been a
waiver of such breach by Landlord or Tenant, as the case may be. No consent or
waiver, express or implied, by Landlord or Tenant, as the case may be, to or of
any breach of any agreement or duty shall be construed as a waiver or consent to
or of any other breach of the same or any other agreement or duty.
7.6 NO ACCORD AND SATISFACTION.
No acceptance by Landlord of a lesser sum than the Fixed Rent,
Additional Rent or any other charge then due shall be deemed to be other than on
account of the earliest installment of such rent or charge due, unless Landlord
elects by notice to Tenant to credit such sum against the most recent
installment due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent or other charge be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
pursue any other remedy in this Lease provided.
ARTICLE VIII
MORTGAGES
8.1 RIGHTS OF MORTGAGE HOLDERS.
The word "mortgage" as used herein includes mortgages, deeds of trust
or other similar instruments evidencing other voluntary liens or encumbrances,
and modifications, consolidations, extensions, renewals, replacements and
substitutes thereof. The word "holder" shall mean a mortgagee, and any
subsequent holder or holders of a mortgage. Until the holder of a mortgage shall
enter and take possession of the Premises for the purpose of foreclosure, such
holder shall have only such rights of Landlord as are necessary to preserve the
integrity of this Lease as
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security. Upon entry and taking possession of the Premises for the purpose of
foreclosure, such holder shall have all the rights of Landlord. Notwithstanding
any other provision of this Lease to the contrary, including without limitation
Section 10.5, no such holder of a mortgage shall be liable either as mortgagee
or as assignee to perform, or be liable in damages for failure to perform, any
of the obligations of Landlord unless and until such holder shall enter and take
possession of the Premises for the purpose of foreclosure, and such holder shall
not in any event be liable to perform or for failure to perform the obligations
of Landlord under Section 3.1. Upon entry for the purpose of foreclosure, such
holder shall be liable to perform all of the obligations of Landlord (except for
the obligations under Article III), subject to and with the benefit of the
provisions of Section 10.5, provided that a discontinuance of any foreclosure
proceeding shall be deemed a conveyance under said provisions to the owner of
the equity of the Premises. No Fixed Rent, Additional Rent or any other charge
shall be paid more than 10 days prior to the due dates thereof and payments made
in violation of this provision shall (except to the extent that such payments
are actually received by a mortgagee in possession or in the process of
foreclosing its mortgage) be a nullity as against such mortgagee and Tenant
shall be liable for the amount of such payments to such mortgagee.
The covenants and agreements contained in this Lease with respect to
the rights, powers and benefits of a holder of a mortgage (including, without
limitation, the covenants and agreements contained in this Section 8.1)
constitute a continuing offer to any person, corporation or other entity, which
by accepting a mortgage subject to this Lease, assumes the obligations herein
set forth with respect to such holder; such holder is hereby constituted a party
of this Lease as an obligee hereunder to the same extent as though its name were
written hereon as such; and such holder shall be entitled to enforce such
provisions in its own name. Tenant agrees on request of Landlord to execute and
deliver from time to time any agreement which may be necessary to implement the
provisions of this Section 8.1.
8.2 SUPERIORITY OF LEASE; OPTION TO SUBORDINATE.
This Lease shall be superior to and shall not be subordinate to any
future mortgage or other voluntary lien or other encumbrance of the Lot and
Building; provided, however, that Landlord shall have the option to subordinate
this Lease to any such mortgage of the Lot and Building provided that Landlord
obtains from the holder of record of any existing or future mortgage an
agreement with Tenant by the terms of which such holder will agree (a) to
recognize the rights of Tenant under this Lease, (b) to perform Landlord's
obligations hereunder arising after the date of such holder's acquisition of
title as hereinafter described, expressly excluding, however, Landlord's
obligations under Article III of this Lease, and (c) to accept Tenant as tenant
of the Premises under the terms and conditions of this Lease in the event of
acquisition of title by such holder through foreclosure proceedings or
otherwise, provided that Tenant will agree to recognize the holder of such
mortgage as Landlord in such event, which agreement shall be made expressly to
bind and inure to the benefit of the successors and assigns of Tenant and of the
holder and upon anyone purchasing said Premises at any foreclosure sale. Tenant
and Landlord agree to execute and deliver any appropriate instruments necessary
to carry out the agreements
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contained in this Section 8.2. Any such mortgage to which this Lease shall
subordinate may contain such terms, provisions and conditions as the holder
deems usual or customary.
8.3 LEASE AMENDMENTS.
Tenant agrees to make such changes in this Lease as may be reasonably required
by the holder of any mortgage of which the Premises are a part, or any
institution which may purchase all or a substantial part of Landlord's interest
in the Premises, provided that such changes may not increase the Fixed Rent or
other payments due hereunder or otherwise materially affect the obligations of
Tenant hereunder, and provided further that such changes do not (i) materially
interfere with Tenant's right of use and enjoyment of the Premises pursuant to
this Lease, (ii) limit, impair or delay Tenant's rights to sublease or assign
all or portion of this Lease pursuant to Section 5.2.1 hereof, (iii) limit,
impair or delay Tenant's right to obtain a reduction or abatement of rent
pursuant to Section 6.2, (iv) limit, impair or delay Tenant's right to terminate
this Lease pursuant to Section 3.2 or Section 6.2 or (v) otherwise unreasonably
limit, impair or delay Tenant's rights hereunder.
ARTICLE IX
LANDLORD'S ADDITIONAL COVENANTS
9.1 AFFIRMATIVE COVENANTS.
Landlord covenants at all times during the Term:
9.1.1 PERFORM OBLIGATIONS.
To perform promptly all of the obligations of Landlord set
forth in this Lease, including, without limitation, furnishing, through
Landlord's employees or independent contractors, the services (the cost of which
is to be included in the Annual Maintenance Charge) listed in Exhibit J and
completing construction of the Phase I Space and the Phase II Space in
accordance with Article III;
9.1.2 REPAIRS.
Except as otherwise provided in Article VI, to make such
repairs (the cost of which is to be included in the Annual Maintenance Charge)
to the roof, exterior walls, exterior windows and waterproofing, floor slabs,
other structural components, parking areas, walks, landscaping, courtyard and
any other common areas and facilities of the Building as may be necessary to
keep them in good, serviceable and neat condition. Landlord shall be responsible
for the maintenance and repair of the heating and air-conditioning systems and
the components thereof serving the Building to the extent that such systems and
components are included in Base Building Improvements.
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9.1.3 COMPLIANCE WITH LAW.
To make all repairs, alterations, additions or replacements to
the Building or the Lot (the costs of which are to be included in the Annual
Maintenance Charge) required by any law, ordinance or order or regulation of any
public authority including repairs, alterations, additions or replacements to
the foundations and structural elements of the Building, except as required
because of Tenant's failure to comply with the provisions of Section 5.1.3
hereof; to keep the Building equipped with all safety appliances so required
(the costs of which are to be included in the Annual Maintenance Charge);
subject to Section 4.2.1, to pay all municipal, county, or state taxes assessed
against the Building or the Lot, or against Landlord's personal property of any
kind on or about the Building or the Lot; and to comply with the orders and
regulations of all governmental authorities with respect to zoning, building,
fire, health and other codes, regulations, ordinances or laws applicable to the
Building or the Lot, including the ADA Requirements (as defined in Section 5.1.4
hereof) and any codes, regulations, ordinances or laws relating to hazardous
materials (as defined in Section 5.1.4), subject to, and without limitation of,
Tenant's obligations with respect to such codes, regulations, ordinances or
laws. The costs incurred by Landlord in connection with the foregoing compliance
obligations shall be included in the Annual Maintenance Charge. All of the
foregoing covenants and obligations are subject to, and without limitation of,
all of Tenant's obligations under this Lease, including, without limitation,
those set forth in Sections 4.2 and 5.1.4.
9.1.4 INDEMNITY.
To defend, with counsel reasonably approved by Tenant, all
actions against Tenant, any partner, trustee, stockholder, officer, director,
employee or beneficiary of Tenant ("Tenant's Indemnified Parties") with respect
to, and to pay, protect, indemnify and save harmless, to the extent permitted by
law, all Tenant's Indemnified Parties from and against any and all liabilities,
losses, damages, costs, expenses (including reasonable attorneys' fees and
expenses), causes of action, suits, claims, demands or judgments of any nature
to which any of Tenant's Indemnified Parties is subject arising from and to the
extent of any negligent or willful act, fault, omission, or other misconduct of
Landlord or its agents, contractors or employees.
9.1.5 ESTOPPEL CERTIFICATE.
Upon not less than 10 days' prior notice by Tenant, to
execute, acknowledge and deliver to Tenant a statement in writing certifying
that this Lease is unmodified and in full force and effect and that except as
stated therein Landlord has no knowledge of any defenses, offsets or
counterclaims against its obligations under this Lease (or, if there have been
any modifications that the Lease is in full force and effect as modified and
stating the modifications and, if there are any defenses, offsets or
counterclaims, setting them forth in reasonable detail), the dates to which the
Fixed Rent and Additional Rent and other charges have been paid and a statement
that, to the best of Landlord's knowledge, Tenant is not in default hereunder
(or if in default, the nature of
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such default, in reasonable detail) and such other matters reasonably required
by Tenant or any prospective assignee of Tenant. Any such statement delivered
pursuant to this Section 9.1.5 may be relied upon by any prospective assignee.
9.1.6 LANDLORD'S TITLE.
The Lot is currently a portion of a separate taxable parcel of
Land (the "Land") and Landlord is in the process of subdividing the Land so as
to, INTER ALIA, establish the Lot as a separate taxable parcel and establish
easements which benefit and/or burden the Lot and the premises demised pursuant
to the Phase I Lease (collectively, the "Subdivision"). In connection therewith,
Landlord shall, on or before ninety (90) days after the date hereof, obtain,
file and record (i) a partial release of the Lot from Sun America Life Insurance
Company (the "Mortgagee") of the Mortgage, Security Agreement, Fixture Filing,
Financing Statement and Assignment of Leases and Rents dated July 29, 1998 (the
"Mortgage") or (ii) a Subordination, Nondisturbance and Attornment Agreement
from the Mortgagee substantially in the form delivered to Tenant in connection
with the Phase I Lease. Landlord represents and warrants that except for the
Mortgage, currently there is no other mortgage on the Premises. Upon obtaining
such partial release, Landlord intends to convey the Lot and assign this Lease
to an entity owned and controlled by Landlord (the "Transfer"). Tenant agrees to
cooperate with Landlord in connection with such Subdivision and Transfer,
including without limitation, the execution, acknowledgment and delivery of an
instrument pursuant to which this Lease shall be subordinated to easements
reasonably established in connection with the Subdivision and Transfer and such
other documents as Landlord reasonably may request. In connection with the
Subdivision and Transfer, Landlord shall deliver to Tenant an easement plan (the
"Plan"), which Plan shall be attached hereto as Exhibit A and which Plan shall
show, INTER ALIA, the Lot and an area or areas between the Building and the
Phase I Building within which Interconnections may be made.
9.1.7 UTILITIES.
Subject to Section 4.2.3 hereof, to bring (or cause to
brought) utilities for the Premises to the Utility Switching Points at
Landlord's sole cost and expense.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 NOTICES FROM ONE PARTY TO THE OTHER.
All notices required or permitted hereunder shall be in writing and
addressed, if to the Tenant, at the Original Address of Tenant or such other
address as Tenant shall have last designated by notice in writing to Landlord
and, if to Landlord, at Landlord's Address or such other address as Landlord
shall have last designated by notice in writing to Tenant. Any notice
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shall be deemed duly given if mailed to such address postage prepaid, registered
or certified mail, return receipt requested, when deposited with the U.S. Postal
Service, or if delivered by a recognized courier service (e.g. Federal Express)
when deposited with such courier service, or if delivered to such address by
hand, when so delivered.
10.2 QUIET ENJOYMENT.
Landlord agrees that upon Tenant's paying the rent and performing and
observing the terms, covenants, conditions and provisions on its part to be
performed and observed, Tenant shall and may peaceably and quietly have, hold
and enjoy the Premises during the Term without any manner of hindrance or
molestation from Landlord or anyone claiming under Landlord, subject, however,
to the terms of this Lease.
10.3 EASEMENTS; CHANGES TO LOT LINES.
Landlord reserves the right, from time to time, to grant easements
affecting the Premises or the Building or the Lot and to change or alter
existing boundaries of the Lot for purpose of developing and using the Lot so
long as such easements or such changes or alterations to existing boundaries of
the Lot do not materially interfere with Tenant's use of the Premises, and to
enter upon the Premises for purposes of constructing and maintaining any pipes,
wires and other facilities serving any portion of the Lot or of the Building,
subject to the terms of Section 5.1.7 hereof.
10.4 LEASE NOT TO BE RECORDED.
Neither party shall record this Lease. Both parties shall execute and
deliver a notice of this Lease in such form, if any, as may be permitted by
applicable statute. If this Lease is terminated before the Term Expiration Date
the parties shall execute, deliver and record an instrument acknowledging such
fact and the actual date of termination of this Lease, and Tenant hereby
appoints Landlord its attorney-in-fact, coupled with an interest, with full
power of substitution to execute such instrument.
10.5 BIND AND INURE; LIMITATION OF LANDLORD'S LIABILITY.
The obligations of this Lease shall run with the land, and this Lease
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. No owner of the Premises shall be liable
under this Lease except for breaches of Landlord's obligations occurring while
owner of the Premises. The obligations of Landlord shall be binding upon the
assets of Landlord which comprise the Premises but not upon other assets of
Landlord. No partner, trustee, stockholder, officer, director, employee or
beneficiary (or the partners, trustees, stockholders, officers, directors or
employees of any such beneficiary) of Landlord shall be personally liable under
this Lease and Tenant shall look solely to Landlord's interest in the Premises
in pursuit of its remedies upon an event of default hereunder, and the general
assets of
46
the partners, trustees, stockholders, officers, employees or beneficiaries (and
the partners, trustees, stockholders, officers, directors or employees of any
such beneficiary) of Landlord shall not be subject to levy, execution or other
enforcement procedure for the satisfaction of the remedies of Tenant; provided
that the foregoing provisions of this sentence shall not constitute a waiver of
any obligation evidenced by this Lease and provided further that the foregoing
provisions of this sentence shall not limit the right of Tenant to name Landlord
or any individual partner or trustee thereof as part defendant in any action or
suit in connection with this Lease so long as no personal money judgment shall
be asked for or taken against any individual partner, trustee, stockholder,
officer, employee or beneficiary of Landlord.
10.6 ACTS OF GOD.
In any case where either party hereto is required to do any act, delays
caused by or resulting from the occurrence of one or more Force Majeure Events
shall not be counted in determining the time during which work shall be
completed, whether such time be designated by a fixed date, a fixed time or a
"reasonable time", and such time shall be deemed to be extended by the period of
such delay.
10.7 LANDLORD'S DEFAULT.
Landlord shall not be deemed to be in default in the performance of any
of its obligations hereunder unless it shall fail to perform such obligations
and such failure shall continue for a period of 30 days following receipt of
notice from Tenant or such additional time as is reasonably required to correct
any such default after notice has been given by Tenant to Landlord specifying
the nature of Landlord's alleged default. Landlord shall not be liable in any
event for incidental or consequential damages to Tenant by reason of any default
by Landlord hereunder, whether or not Landlord is notified that such damages may
occur. Except as expressly set forth in Section 3.2 and Section 6.2 hereof,
Tenant shall have no right to terminate this Lease for any default by Landlord
hereunder and no right, for any such default, to offset or counterclaim against
any rent due hereunder.
Notwithstanding the foregoing, if any repairs to the Premises required
by this Lease or any maintenance, cleaning, or lighting of the common areas of
the Building or the Lot, are not performed by Landlord within thirty (30) days
after notice from Tenant (or such longer period as may be reasonably required in
the event that any such repair, maintenance, cleaning or lighting cannot be
completed within said thirty (30) day period), Tenant shall have the right to
perform such obligation of Landlord. If Tenant performs any such obligation of
Landlord, Landlord shall pay to Tenant the reasonable cost thereof within thirty
(30) days after notice from Tenant, provided, however, that in no event shall
Tenant have the right to offset or deduct the amount thereof against any payment
of rent due hereunder.
If an emergency occurs where a repair is required to be done
immediately in order to avoid imminent danger to persons or material damage to
the Premises, Tenant shall have the right to
47
self-help consistent with the immediately preceding grammatical paragraph of
this Section 10.7 after giving Landlord only such notice as is reasonable under
the circumstances, provided, however, that formal notice shall be promptly given
thereafter. However, the right of self-help afforded to Tenant in this Section
10.7 shall be carefully and judiciously exercised by Tenant, it being understood
and agreed that except in the case of an emergency, Landlord shall be given
sufficient opportunity to take the action required of Landlord to avoid such
default, in order to avoid any conflict with respect to whether or not self-help
should have been availed of by Tenant, or with respect to the reasonableness of
the expenses incurred by Tenant.
10.8 BROKERAGE.
Each party warrants and represents to the other party that it has had
no dealings with any broker or agent in connection with this Lease other than
Insignia/ESG ("Broker") and covenants to defend with counsel reasonably approved
by such other party, hold harmless and indemnify such other party from and
against any and all cost, expense or liability arising from any breach of the
foregoing warranty and representation.
10.9 APPLICABLE LAW AND CONSTRUCTION.
This Lease shall be governed by and construed in accordance with the
laws of the state in which the Premises are located. If any term, covenant,
condition or provision of this Lease or the application thereof to any person or
circumstances shall be declared invalid, or unenforceable by the final ruling of
a court of competent jurisdiction having final review, the remaining terms,
covenants, conditions and provisions of this Lease and their application to
persons or circumstances shall not be affected thereby and shall continue to be
enforced and recognized as valid agreements of the parties, and in the place of
such invalid or unenforceable provision, there shall be substituted a like, but
valid and enforceable provision which comports to the findings of the aforesaid
court and most nearly accomplishes the original intention of the parties.
There are no prior oral or written agreements between Landlord and
Tenant affecting this Lease. This Lease may be amended, and the provisions
hereof may be waived or modified, only by instruments in writing executed by
Landlord and Tenant.
The titles of the several Articles and Sections contained herein are
for convenience only and shall not be considered in construing this Lease.
Unless repugnant to the context, the words "Landlord" and "Tenant"
appearing in this Lease shall be construed to mean those named above and their
respective heirs, executors, administrators, successors and assigns, and those
claiming through or under them respectively. If there be more than one tenant
the obligations imposed by this Lease upon Tenant shall be joint and several.
10.10 SUBMISSION NOT AN OFFER.
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The submission of a draft of this Lease or a summary of some or all of
its provisions does not constitute an offer to ` lease or demise the Premises,
it being understood and agreed that neither Landlord nor Tenant shall be legally
bound with respect to the leasing of the Premises unless and until this Lease
has been executed by both Landlord and Tenant and a fully executed copy
delivered to each of them.
10.11 SECURITY DEPOSIT.
Tenant will provide within five (5) business days of the date hereof
and as a condition of this Lease and shall keep in effect throughout the Term, a
standby letter of credit in the Security Deposit Amount (as hereinafter defined)
as security for the performance of the obligations of Tenant hereunder in
accordance with the following requirements. As used herein, the term "Security
Deposit Amount" shall mean and refer to the sum of the Initial Estimated Annual
Additional Rent plus the Annual Fixed Rent Rate, as the same may be adjusted in
accordance with Section 2.3, Section 4.1(b) and Section 10.12 hereof. If Tenant
elects to have Landlord advance the Tenant Allowance, the Security Deposit
Amount shall thereupon be increased to $6,557,654 plus an amount equal to the
Initial Estimated Annual Additional Rent. On the effective date of any such
adjustment of the Annual Fixed Rent Rate, Tenant shall provide a replacement
letter of credit for the amount of the adjusted Security Deposit Amount. Any
letter of credit provided by Tenant shall be in form and substance acceptable to
Landlord and shall be drawn on BankBoston, N.A. (or another Boston clearinghouse
bank reasonably satisfactory to Landlord) for the Security Deposit Amount in
Landlord's favor. Tenant shall provide for replacements thereto to be issued and
delivered to Landlord at least 30 days prior to the expiration of the then
effective letter of credit, time being of the essence. The letter of credit
shall be payable to Landlord upon presentation at the issuing bank's offices in
Boston of a sight draft signed by Landlord stating that Landlord is entitled
thereto, and a certification of Landlord that the person signing the
certification is duly authorized to do so, that an uncured default exists under
the Lease, that the default has continued after the expiration of any applicable
cure period, and that the amount of the draft does not exceed the amount
reasonably required to cure such default (the "Default Certification"). Landlord
agrees that it shall present such sight draft and Default Certification only if
Tenant defaults in performance of its obligations hereunder and such default
shall have continued past any applicable notice and grace period. Any letter of
credit in effect during the last year of the Term shall expire no earlier than
30 days after the expiration of the Term of the Lease. The letter of credit
shall provide for partial draws and shall be assignable by Landlord. If Tenant
shall fail to perform any of its obligations under this Lease including a
failure timely to provide a replacement letter of credit, Landlord may, but
shall not be obligated to, apply the letter of credit to the extent necessary to
cure the default, and Tenant shall be obligated to reinstate the letter of
credit to the Security Deposit Amount then in effect. Tenant shall not have the
right to call upon Landlord to draw upon all or any part of the letter of credit
to cure any default or fulfill any obligation of Tenant, but such use shall be
solely in the discretion of Landlord. Provided that Landlord gives Tenant notice
of the name of such grantee or transferee, upon any conveyance by Landlord of
its interest under this Lease, the letter of
49
credit may be delivered by Landlord to Landlord's grantee or transferee. Upon
any such delivery, Tenant hereby releases Landlord herein named of any and all
liability with respect to the letter of credit, its application and return, and
Tenant agrees to look solely to such grantee or transferee. It is further
understood that this provision shall also apply to subsequent grantees and
transferees. Notwithstanding the foregoing, in lieu of a letter of credit,
Tenant may deliver cash in the Security Deposit Amount to Landlord, in which
event applicable provisions of this Section 10.11 shall apply to Landlord's use
and delivery thereof. If Tenant elects to deliver cash to Landlord in the
Security Deposit Amount, Tenant, subject to Landlord's prior written approval,
may designate the investment thereof, and interest earned thereon shall be
disbursed to Tenant on a yearly basis so long as no default has occurred and is
then continuing.
10.12 OPTIONS TO EXTEND.
(a) Tenant shall have two (2) options to extend the Term of this Lease
(the "Options to Extend") for successive periods of ten (10) years each (the
"Extension Periods"), subject to and on the terms set forth herein. Tenant may
only exercise the Options to Extend with respect to the entire Premises. If
Tenant shall desire to exercise any Option to Extend, it shall give Landlord a
notice (the "Inquiry Notice") of such desire not later than fifteen (15) months
prior to the expiration of the Initial Term of this Lease or the preceding
Extension Period, as the case may be. Thereafter, the Fair Market Rent (as
defined in Subsection (c) below) for the applicable Extension Period shall be
determined in accordance with Subsection (d) below. After the applicable Fair
Market Rent has been so determined, Tenant shall exercise each Option to Extend
by giving Landlord notice (the "Exercise Notice") of its election to do so not
later than twelve (12) months prior to the expiration of the Initial Term of
this Lease, or the preceding Extension Period, as the case may be. If Tenant
fails to timely give either the Inquiry Notice or the Exercise Notice to
Landlord with respect to any Option to Extend, Tenant shall be conclusively
deemed to have waived such Option to Extend hereunder.
(b) Notwithstanding any contrary provision of this Lease, each Option
to Extend and any exercise by Tenant thereof shall be void and of no force or
effect unless on the dates Tenant gives Landlord its Inquiry Notice and Exercise
Notice for each Option to Extend and on the date of commencement of the each
Extension Period (i) this Lease is in full force and effect, (ii) there is no
Event of Default of Tenant under this Lease, and (iii) Tenant has not assigned
or subleased (or agreed to assign or sublease) more than fifty percent (50%) of
the rentable floor area of the Premises.
(c) All of the terms, provisions, covenants, and conditions of this
Lease shall continue to apply during each Extension Period, except that the
Annual Fixed Rent Rate during each Extension Period (the "Extension Rent") shall
be equal to the fair market rent for the Premises determined as of the date
twelve (12) months prior to expiration of the Initial Term or the preceding
Extension Period, as the case may be, in accordance with the procedure set forth
in Subsection (d) below (the "Fair Market Rent").
50
(d) The Fair Market Rent for each Extension Period shall be determined
as follows: Within five (5) days after Tenant gives Landlord its Inquiry Notice
with respect to any Option to Extend, Landlord shall give Tenant notice of
Landlord's determination of the Fair Market Rent for the applicable Extension
Period. Within ten (10) days after Tenant receives such notice, Tenant shall
notify Landlord of its agreement with or objection to Landlord's determination
of the Fair Market Rent, whereupon the Fair Market Rent shall be determined by
arbitration conducted in the manner set forth below. If Tenant does not notify
Landlord within such ten (10) day period of Tenant's agreement with or objection
to Landlord's determination of the Fair Market Rent, then the Fair Market Rent
for the applicable Extension Period shall be deemed to be Landlord's
determination of the Fair Market Rent as set forth in the notice from Landlord
described in this subsection.
(e) If Tenant notifies Landlord of Tenant's objection to Landlord's
determination of Fair Market Rent under the preceding subsection, such notice
shall also set forth a request for arbitration and Tenant's appointment of a
commercial real estate broker having at least ten (10) years experience in the
commercial leasing market in the City of Cambridge, Massachusetts (an
"Arbitrator"). Within five (5) days thereafter, Landlord shall by notice to
Tenant appoint a second Arbitrator. Each Arbitrator shall be advised to
determine the Fair Market Rent for the applicable Extension Period within thirty
(30) days after Landlord's appointment of the second Arbitrator. On or before
the expiration of such thirty (30) day period, the two Arbitrators shall confer
to compare their respective determinations of the Fair Market Rent. If the
difference between the amounts so determined by the two Arbitrators is less than
or equal to ten percent (10%) of the lower of said amounts then the final
determination of the Fair Market Rent shall be equal to the average of said
amounts. If such difference between said amounts is greater than ten percent
(10%), then the two arbitrators shall have ten (10) days thereafter to appoint a
third Arbitrator (the "Third Arbitrator"), who shall be instructed to determine
the Fair Market Rent for the applicable Extension Period within ten (10) days
after its appointment by selecting one of the amounts determined by the other
two Arbitrators. Each party shall bear the cost of the Arbitrator selected by
such party. The cost for the Third Arbitrator, if any, shall be shared equally
by Landlord and Tenant.
(f) Regardless of the manner in which the Extension Rent is determined,
the Annual Fixed Rent for each Extension Period shall be subject to adjustment
as set forth in Section 4.1(b) hereof.
10.13 INTENTIONALLY OMITTED.
10.14 PARKING.
Tenant shall be obligated to pay as Additional Rent monthly, the then
fair market value (estimated to be $150.00 per space per month in calendar year
2000 for Garage parking spaces) for each of the parking spaces to be leased to
Tenant. All parking spaces leased hereby may only be utilized by Tenant's
employees, visitors, sublessees or assignees, visiting or working at the
51
Premises. Tenant shall have the right to lease from Landlord such parking spaces
prior to the Commencement Date on the terms set forth herein. Landlord shall
have the right, from time to time, to relocate, on a temporary basis as may be
necessary to effect repairs and improvements to the Garage, parking spaces
located in the Garage to another location within 1000 feet of the Lot, provided
that in each instance such other location may be lawfully used for accessory
parking, and provided further that the monthly rent to be paid by Tenant for
each temporarily relocated parking space shall be an amount equal to the fair
market value thereof but in no event more than the rent then being paid by
Tenant for a parking space in the Garage. If such relocation is required in
connection with repairs to the Garage, Landlord agrees to diligently pursue
completion of such repairs.
10.15 CONFIDENTIAL INFORMATION.
Landlord hereby agrees that any and all knowledge, information, data,
materials, trade secrets, and other work product of a confidential nature
gained, obtained, derived, produced, generated or otherwise acquired by Landlord
with respect to Tenant's business (collectively "Confidential Information")
shall be kept confidential. Landlord shall use diligent efforts to ensure that
no Confidential Information is revealed, divulged, communicated, related, or
described to any person or entity without the written consent of Landlord,
except as may be required by applicable law.
10.16 SIGNAGE.
Tenant shall be permitted, at its sole cost and expense, to install and
maintain signs on the exterior of the Building which read "Vertex" (or something
similar reasonably approved by Landlord), provided that: (i) the size, location,
quality, color and style of such signs shall be subject to Landlord's approval,
such approval not to be unreasonably withheld or delayed, and (ii) such signs
shall be subject to limitations of applicable law, including, without
limitation, the Cambridge Zoning By-Law, as amended from time to time. Tenant
shall secure all permits necessary for the installation of such signs at its
sole cost and expense. Upon the expiration or sooner termination of the Term of
this Lease, Tenant shall remove such signs and repair any damage resulting
therefrom at Tenant's sole cost and expense.
WITNESS the execution hereof under seal on the day and year first above
written.
LANDLORD: FORT WASHINGTON REALTY TRUST
-----------------------------------
Xxxxx X. Xxxx, Trustee
and not individually
52
-----------------------------------
Xxxxx X. Xxxx, Trustee
and not individually
TENANT: VERTEX PHARMACEUTICALS INCORPORATED
By:
--------------------------------
Its:
hereunto duly authorized
53
EXHIBIT A
Plan Showing Lot
(to be provided to Tenant by Landlord upon the Transfer)
54
EXHIBIT A-1
Legal Description of Lot
A parcel of land which is partially registered and partially
unregistered land, located at Waverly Street, Cambridge, Middlesex County,
Commonwealth of Massachusetts, and being shown as (i) Lot 1 on a plan of land
entitled "Subdivision Plan of Land, Cambridge, Massachusetts," dated April 21,
1998, by Xxxxx X. Xxxxxxx, Inc., recorded with the Middlesex South District
Registry of Deeds as Plan No. 666, (ii) Xxx 0 xx xxxxx xx Xxxx Xxxxx Xxxx Xx.
00000X filed with the Middlesex South Registry District of the Land Court in
Book ___, Page ___, (iii) Xxx 0 xxx Xxx 0 xx xxxxx xx Xxxx Xxxxx Xxxx Xx. 00000X
filed with the Middlesex South Registry District of the Land Court in Book
______, Page ____, (iv) the lot shown on Plan No. 20185A filed with Middlesex
South Registry District of the Land Court in Book 383, Page 525, (v) the lot
shown on Plan No. 10431A filed with Middlesex South Registry District of the
Land Court in Book 383, Page 489, (vi) the lot shown on Plan No. 20634A filed
with Middlesex South Registry District of the Land Court in Book 423, Page 437,
(vii) the lot shown on Plan No. 21997A filed with Middlesex South Registry
District of the Land Court in Book 467, Page 65, (viii) the lot shown on Plan
No. 25241A filed with Middlesex South Registry District of the Land Court in
Book 554, Page 138, (ix) the lot shown on Plan No. 31443A filed with Middlesex
South Registry District of the Land Court in Book 677, Page 136, and (x) the lot
shown on Plan No. 40865A filed with Middlesex South Registry District of the
Land Court in Book 973, Page 112.
The Phase II Parcel is subject to and has the benefit of the easement
and restrictions of record insofar as in force and effect.
55
EXHIBIT B
Landlord's Plans
Base Building Specifications Outline dated March 16, 1998 and Base
Building Construction Drawings dated March 27, 1998, copies of which have been
delivered by Landlord to Tenant.
56
EXHIBIT C
RULES AND REGULATIONS
1. The entrances, lobbies, elevators, sidewalks, and stairways of the
Building shall not be encumbered or obstructed by Tenant, Tenant's
agents, servants, employees, licensees or visitors or used by them for
any purposes other than ingress or egress to and from the Building.
2. Landlord reserves the right to have Landlord's structural engineer review
Tenant's floor loads on the Building at Tenant's expense.
3. Tenant, or the employees, agents, servants, visitors or licensees of
Tenant shall not at any time place, leave or discard any rubbish, paper,
articles, or objects of any kind whatsoever outside of the Building.
Bicycles shall not be permitted in the Building.
4. Tenant shall not place objects against glass partitions or doors or
windows or adjacent to any common space which would be unsightly from the
exterior of the Building and will promptly remove the same upon notice
from Landlord.
5. Tenant shall not make noises, cause disturbances, create vibrations,
odors or noxious fumes or use or operate any electric or electrical
devices or other devices that emit sound waves or that would interfere
with the operation of any device or equipment or radio or television
broadcasting or reception from or within the Building or elsewhere, or
with the operation of roads or highways in the vicinity of the Building
and shall not place or install any projections, antennae, aerials, or
similar devices inside or outside of the Building, without the prior
written approval of Landlord.
6. Tenant shall not: (a) use the Building for lodging, or for any immoral or
illegal purposes; (b) use the Building to engage in the manufacture or
sale of spirituous, fermented, intoxicating or alcoholic beverages in the
Building; (c) use the Building to engage in the manufacture or sale of,
or permit the use of, any illegal drugs on the Building.
7. No awning or other projections shall be attached to the outside walls or
windows. No curtains, blinds, shades, screens or signs, other than those,
if any, furnished by Landlord, shall be attached to, hung in, or used in
connection with any exterior window or door of the Building without the
prior written consent of Landlord. No sign, advertisement, object, notice
or other lettering shall be exhibited, inscribed, painted or affixed on
any part of the outside or inside of the Building if visible from outside
of the Building without the prior written consent of Landlord.
57
8. Door keys for doors in the Building will be furnished on the Commencement
Date by Landlord. If Tenant shall affix additional locks on doors then
Tenant shall furnish Landlord with copies of keys for said locks.
10. Tenant shall cooperate and participate in all reasonable security
programs affecting the Building.
11. Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and other
means of entry to its space in the Building closed and secured.
12. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein.
13. Discharge of industrial sewage shall only be permitted if Tenant, at its
sole expense, shall have obtained all necessary permits and licenses
therefor, including without limitation permits from state and local
authorities having jurisdiction thereof.
14. Tenant shall not xxxx, paint, drill into, or in any way deface any part
of the Building or Premises. No boring, driving of nails or screws,
cutting or stringing of wires shall be permitted except with the prior
written consent of Landlord not to be unreasonably withheld, and as
Landlord may direct. Tenant shall not install any resilient tile or
similar floor covering in the Premises except with the prior written
approval of Landlord not to be unreasonably withheld. The use of asbestos
containing cement or other similar asbestos containing adhesive material
is expressly prohibited.
15. In the event of any conflict between the provisions of this EXHIBIT C and
the provisions of the Lease, the provisions of the Lease shall govern.
58
EXHIBIT D
SCHEDULE OF FLOOR LOAD LIMITS
59
EXHIBIT E
SCHEDULE OF EQUIPMENT TO BE REMOVED BY TENANT
(Tenant to Provide for Landlord's Approval)
60
