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EXHIBIT 10.11
METROWEST PLACE
00 XXXXXXXX XXXXXX XXXXXXXXX
XXXXXXXXXX, XXXXXXXXXXXXX
LEASE
BETWEEN
CONSOLIDATED GROUP SERVICE COMPANY
LIMITED PARTNERSHIP,
AS LANDLORD
AND
GENZYME CORPORATION,
AS TENANT
DATED: NOVEMBER 12, 1998
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LEASE
THIS LEASE TOGETHER WITH ALL THE EXHIBITS HERETO, is dated as of this
12th day of November, 1998 (the "Execution Date") between the Landlord and the
Tenant as identified in Article I below, and this Lease relates to certain
Premises in the Building located as indicated in Article I below. The parties
hereby agree as follows:
I. REFERENCE DATA
1.1 BASIC TERMS. All references in this Lease to any Exhibit
attached hereto are deemed to incorporate herein all the data and provisions
stated in such Exhibit, including the attached Rules and Regulations, as they
may be changed from time to time in the manner provided in this Lease.
Each reference in this Lease to any of the following basic terms shall
be deemed to have the meanings for that term as stated below in this Article:
LANDLORD: Consolidated Group Service
Company Limited Partnership, a
Massachusetts limited partnership
LANDLORD'S ADDRESS: c/o Crosspoint Associates, Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx and
Xxxxx X. Xxxxxx, III
TENANT: Genzyme Corporation, a
Massachusetts corporation
TENANT'S ADDRESS: One Xxxxxxx Square
Building 1400
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Vice President and Treasurer
TERM
COMMENCEMENT DATE: January 1, 1999 or such earlier date as
may be permitted under Section 4.1
hereof.
TERM EXPIRATION DATE: December 31, 2005 with one five (5)
year option to extend the Term.
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ANNUAL FIXED RENT: As set forth in Section 3.1
ADDITIONAL RENT: Tenant shall also pay such additional
rent (as defined in Section 3.1), including
without limitation, the Electricity
Component as set forth in Section 3.1 as
well as the Tax and Operating Expense
Increases in excess of their respective base
amounts as set forth in Sections 8.1 and
9.2.
BUILDING: The building located on the parcel of land
consisting of approximately 5.96 acres and
which is commonly known as and numbered 00
Xxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx (the "Land"). The Land and the
location of the Building thereon are as
shown on the Title Insurance Plan of Land in
Framingham and Southborough, Massachusetts,
dated March 4, 1996, as prepared by Xxxxx
Associates, Inc. (the "Site Plan"); however,
Tenant acknowledges that Landlord has
disclosed to Tenant that the parking areas
shown on the Site Plan have been restriped
and expanded and that certain other minor
changes have been made to the site shown on
the Site Plan.
TOTAL RENTABLE FLOOR
AREA OF BUILDING: 92,591 square feet
PREMISES: The Building.
PARKING: 379 parking spaces.
PERMITTED USE: General office use, employee cafeteria use
to the extent provided in Section 13.26, and
any other uses permitted as of right or by
special permit under applicable Framingham
and
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Southborough zoning laws if Tenant obtains
such special permit at its own expense and
the grant of such special permit is final
and not subject to further review or appeal.
EXPENSE REIMBURSEMENT: No more than $10.00 per rentable square feet
of the Premises for a total of $925,910.00
COMMERCIAL GENERAL LIABILITY
INSURANCE: $10,000,000.00
BROKER: CB Xxxxxxx Xxxxx Whittier Partners
PROPERTY: The Building and Land, including without
limitation all improvements on the Land,
parking areas, garages, drives, walks,
landscaped areas and other areas.
BASE REAL ESTATE TAXES: $1.45 per square foot for the Total Rentable
Floor Area of the Premises
BASE OPERATING EXPENSES: $5.76 per square foot for the Total Rentable
Floor Area of the Premises
1.2 EXHIBITS. The following is a list of Exhibits attached to
this Lease.
Exhibit A: Floor Plan of the Premises
Exhibit A-1: Site Plan
Exhibit B: Rules and Regulations
Exhibit C: Schedule of Cleaning Services
Exhibit D: Signage
Exhibit E: Base Year Operating Expenses Budget
Exhibit F: Required Capital Improvements
Exhibit G: Term Commencement Letter
II. PREMISES AND APPURTENANT RIGHTS
2.1 LEASE OF PREMISES. Landlord hereby leases to Tenant and Tenant
hereby accepts from Landlord, the Premises consisting of 92,591 square feet of
rentable area consisting of the entire Building as described in EXHIBIT A, for
the Term of this Lease and upon the terms and conditions hereinafter set forth.
The Term of the Lease shall be for seven (7) years, commencing on the Term
Commencement Date and expiring at the close of business of the Term Expiration
Date.
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2.2 APPURTENANT RIGHTS.
(a) Tenant shall have, as appurtenant to the Premises,
the exclusive right to use, and permit its invitees to use, parking areas,
public or common lobbies, hallways, stairways and elevators and common walkways
necessary for access to the Building, but such rights shall always be subject to
reasonable Rules and Regulations as set forth in Exhibit B hereto and as issued
pursuant to Section 13.5 hereof.
(b) Tenant agrees that Landlord shall have the right to
place in, over and through the Land, but not the Building or that portion of the
Land located underneath the Building unless the particular item is for the
specific benefit of the Building (but to the extent reasonably possible so as to
reduce to a minimum interference with Tenant's use of the Premises) utility
lines, pipes, equipment and the like. In no event shall Landlord's exercise of
this right reduce the number of parking spaces on the Land to less than 370. Any
such exercise of its rights by Landlord shall be undertaken in such manner and
at such times as to minimize any disruption to Tenant's business and use of the
Premises; shall not diminish the useful life of the parking surface; nor cause
any increase in Operating Expenses unless such exercise was undertaken for the
benefit of the Premises. Following any such exercise, Landlord shall remove all
construction materials and debris and restore the portion of the Land so
affected to substantially the same condition it was in prior to Landlord's
exercise.
III. ANNUAL TOTAL RENT
3.1 PAYMENT. Tenant agrees to pay to Landlord or to its Agent (as
may be identified by Landlord by written notice to Tenant), or as otherwise
directed by Landlord, Annual Fixed Rent for each year of the Term of the Lease
which shall be for the amounts set forth below, without offset, abatement,
deduction or demand except as expressly provided in this Lease, plus an
Electricity Component of eighty cents ($0.80) per square foot per year for the
Total Rentable Floor Area of the Premises:
MONTHS RENT/SQ.FT. ANNUAL RENT MONTHLY RENT
------ ----------- ----------- ------------
1-12 $19.00 $1,759,229.00 $146,602.42
13-24 $21.00 $1,944,411.00 $162,034.25
25-36 $22.00 $2,037,002.00 $169,750.17
37-48 $23.00 $2,129,593.00 $177,466.08
49-60 $23.50 $2,175,888.50 $181,324.04
61-72 $24.00 $2,222,184.00 $185,182.00
73-84 $24.50 $2,268,479.50 $189,039.96
Tenant shall pay the Annual Fixed Rent plus the Electricity Component
in equal monthly installments (and at that rate for a partial month), in
advance, on or within five (5) business days after the first day of each and
every calendar month during the Term of
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this Lease, at Landlord's Address, or at such other place as Landlord shall from
time to time designate by notice, in lawful money of the United States (Annual
Fixed Rent does not include the amount representing Tenant's share of increases
over Base Real Estate Taxes and Base Operating Expenses). Unless herein
otherwise provided, the Rent Commencement Date shall be the Term Commencement
Date; however, on the Execution Date the deposit paid by Tenant to Broker in
connection with the Letter of Intent dated August 7, 1998 between Landlord and
Tenant shall be released to Landlord and shall be applied to and deemed to
constitute payment in full of the first month's rent. If any installment of
Annual Fixed Rent is not paid when due or within any applicable grace periods,
Tenant shall pay, in addition to any charges under Section 13.14, upon demand of
Landlord, an administrative fee equal to five (5%) percent of the overdue
payment. Tenant shall pay all other costs, charges and assessments as may be
owed by it to Landlord under this Lease including, but not limited to, the
Electricity Component and increases over Base Real Estate Taxes and Base
Operating Expenses as additional rent ("Additional Rent"). Tenant's failure to
make any payment of Additional Rent upon the terms and conditions described
herein shall be treated as a default in the payment of Annual Fixed Rent, in
which event Landlord shall have all rights and remedies provided herein for the
non-payment of Annual Fixed Rent and for any other breach hereof.
IV. TERM COMMENCEMENT AND CONDITION
4.1 COMMENCEMENT DATE. The Term Commencement Date hereof shall be
the earlier of (i) January 1, 1999 or (ii) the date Tenant's personnel shall
(but only with the prior consent of Landlord) occupy all or any part of the
Premises for the conduct of any aspect of its business. Tenant's permitted
access to any part of the Premises for the purposes of installing wiring;
constructing Tenant's build-out of the Premises; installing furniture, fixtures,
equipment or personal property shall not in and of itself constitute occupying
all or any part of the Premises for the conduct of its business. In the event
that any of Tenant's personnel take occupancy prior to January 1, 1999, such
occupancy shall be governed by the terms which apply to the first twelve (12)
months of the Lease and shall be deemed to be part of the first twelve (12)
months which shall expire as of December 31, 1999 regardless of when Tenant
takes occupancy of the Premises; however, the Annual Fixed Rent due from Tenant
for such period prior to January 1, 1999 shall be based only on that portion of
the Premises then so occupied by Tenant. In no event shall the Term Expiration
Date be earlier than December 31, 2005.
V. USE OF PREMISES
5.1 PERMITTED USE. Tenant agrees that during the entire Term of
this Lease it shall use and occupy the Premises only for the Permitted Use
specified in Section 1.1 hereof and for no other use. Landlord agrees that it
shall, at Tenant's sole expense, cooperate with and support any efforts by
Tenant to obtain any special permits which Tenant may reasonably seek to obtain
under applicable Framingham and
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Southborough zoning laws; such cooperation shall be consistent with Landlord's
obligations under Section 15.6 below and shall include, without limitation, the
co-signing of required applications and providing any support required to be
provided by the title holder in connection with hearings before any appropriate
planning board , zoning board of appeals, or other permit granting authority.
Landlord agrees that it shall not, without Tenant's approval, which is not to be
unreasonably withheld, initiate or consent to any proposed changes of zoning
laws that would adversely affect the Premises during the Lease Term. Landlord
agrees, promptly upon Landlord's receipt thereof, to provide Tenant with a copy
of all notices of any proposed zoning law changes and all notices of any
proposed zoning petitions submitted by any abutter seeking any variances,
special permits, site plan approvals or the like.
5.2 INSTALLATIONS AND ALTERATIONS BY TENANT
(a) Landlord and Tenant acknowledge that Tenant intends
to make certain alterations and improvements to the Premises for Tenant's
initial occupancy thereof as generally described in and governed by Section 15.2
below. Tenant shall make no alterations, additions (including, for the purposes
hereof, wall-to-wall carpeting), or other improvements in or to the Premises
without Landlord's prior written consent (which shall not be unreasonably
withheld, conditioned or delayed) in each instance. Any such other alterations,
additions or improvements shall (i) be in accordance with complete plans and
specifications approved by Landlord within ten (10) days after receipt of such
complete set of plans and specifications (ii) be performed in a good and
workmanlike manner in compliance with all applicable laws, regulations, by-laws
or ordinances, (iii) be made only by "Approved Contractors", as hereinafter
defined., (iv) be made at Tenant's sole expense (but with the benefit of any
improvement allowance provided by the Landlord) and (v) become part of the
Premises and property of the Landlord unless Landlord and Tenant agree, at the
time of Landlord's approval of the alterations and additions, that the same
shall remain the property of, and shall be removable by, Tenant, in which event
Tenant shall restore any damage to the finished character of the Premises
created by such removal. If at any time the Tenant seeks Landlord's approval to
build-out any portion of the Building for any use other than office use, the
Tenant shall be obligated prior to the expiration or earlier termination of the
Lease to restore said portion of the Building to a typical open-floor office
layout unless Landlord and Tenant, at the time of Landlord's approval of that
build-out, agree otherwise.
For Purposes of this Lease, an "Approved Contractor" shall
mean a contractor or mechanic identified by Tenant in writing, who has been
approved by Landlord (such approval not to be unreasonably withheld or delayed).
Contractors may be approved in one of two ways. First, Tenant may submit to
Landlord in writing from time to time a list (or a revised list) of contractors
that Tenant anticipates using from time to time to make alterations, repairs and
improvements to the Premises. Unless Landlord makes any reasonable objection to
any of the contractors identified on such list within ten (10) days after
receipt of such list from Tenant, all contractors identified on such list shall
be deemed "Approved Contractors". Second, Tenant may submit to Landlord from
time
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to time requests for Landlord to approve specific contractors (not already on
the list of Approved Contractors) for work in the Premises. Landlord shall have
the right, upon written notice to Tenant to withdraw its approval of previously
approved contractors at any time for any cause as determined in Landlord's
reasonable judgment. A contractor's failure to provide or maintain adequate
insurance levels shall be a reasonable basis for Landlord to withhold or
withdraw approval unless Tenant notifies Landlord in writing that such
contractor shall be covered by insurance then being maintained by Landlord and
if Tenant provides documentary evidence that said Contractor is covered and of
the amount of coverage.
(b) All articles of personal property and all business
fixtures, machinery and equipment and furniture owned or installed by Tenant
solely at its expense in the Premises ("Tenant's Removable Property") shall
remain the property of Tenant and may be removed by Tenant at any time during,
and shall be removed prior to the expiration of this Lease, provided that
Tenant, at its expense, shall repair any damage to Premises and the Building
caused by any such installation or removal and provided that Tenant is not in
default hereunder beyond any applicable notice, grace or cure period.
(c) In no event shall Landlord be liable for any labor or
materials furnished or to be furnished to Tenant, and no mechanic's or other
lien for any such labor or materials shall attach to or affect the reversion or
other estate or interest of Landlord in or to the Premises. Whenever any
mechanic's lien shall have been filed against the Property based upon any act or
interest of Tenant or of anyone claiming through Tenant, Tenant shall within
fifteen (15) days after Tenant receives notice or has reason to know of such
filing take all such action, such as bonding, deposit or payment, as will result
in the removal of such lien within the said 15 days. If said lien has not been
removed upon the expiration of said fifteen days, Landlord may, but is not
obligated to, remove or satisfy such lien at Tenant's sole cost and expense, and
such cost or expense shall become part of the Additional Rent, payable by Tenant
upon demand of Landlord.
5.3 COMPLIANCE WITH LAWS. In its use and occupancy of the
Premises, Tenant shall comply with the requirements of all governmental laws,
codes, ordinances, rules and regulations, ("Laws") and any and all directions,
rules and regulations of Boards of Fire Underwriters, Rating Boards or the like
(or successor agencies); and Tenant shall obtain and maintain all permits,
licenses and the like, required by all applicable laws in respect of such use
and occupancy. Landlord agrees that it shall, at Tenant's expense, cooperate
with and support Tenant's applications for all such permits, licenses and the
like in the manner set forth in Section 15.6 below. If compliance with any Laws
enacted after the Execution Date requires alterations or improvements to the
Premises, the cost of which would constitute a "Capital Expenditure" as defined
in Section 9.1, such alterations and/or improvements shall start at the latest
date permitted by such Laws and shall be made over the longest period of time
permitted by such Laws unless Tenant elects an earlier and faster implementation
schedule; and the cost of such alterations and/or improvements shall be treated
and paid for as Capital Expenditure under Section 9.1. If, however, Landlord
determines, in its reasonable judgement, that to make any particular alterations
and/or improvements over
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the "longest period of time permitted" would result in making the total cost of
such particular alterations and/or improvements so significantly higher as to be
commercially unreasonable under the circumstances, Landlord may elect to make
such alterations and/or improvements over such earlier and faster implementation
schedule as is consistent with spreading the costs thereof over the longest
period commercially practicable. Promptly after Landlord makes any such
determination, Landlord shall provide Tenant with a reasonably detailed
statement describing such determination. Tenant shall have the right to raise
any reasonable good faith objections to any such determination by giving
Landlord notice of such objection within 15 days after receipt of the aforesaid
detailed statement. Nothing in this paragraph shall prohibit the Landlord from
making any such alterations or improvements when it deems appropriate; rather,
the provisions of this paragraph are simply meant to govern the timing of the
assignment of such costs to Tenant.
VI. ASSIGNMENT AND SUBLETTING
6.1 PROHIBITION.
(a) Notwithstanding anything to the contrary in the Lease
contained, Tenant shall at all times and in all events be and remain primarily
liable for its obligations under this Lease. Tenant covenants and agrees that,
whether voluntarily, involuntarily, by operation of law or otherwise, neither
this Lease nor the Term and estate hereby granted, nor any interest herein or
therein, will be assigned, mortgaged, pledged, encumbered or otherwise
transferred and that neither the Premises nor any part thereof will be
encumbered in any manner by reason of any act or omission on the part of Tenant,
or used or occupied or permitted to be used or occupied for any use other than
the Permitted Use, or by anyone other than Tenant. Tenant further covenants and
agrees not to sublet all or any part of the Premises (which term, without
limitation, shall include granting of concessions, licenses and the like), or
offer or advertise for assignment or subletting all or any part of the Premises
without the prior written consent of the Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. If any installations or
alterations are necessary in connection with any such sublease or assignment,
all such work shall be governed by the terms of Article V hereof, and if the
fact of such a sublease or assignment triggers compliance of any aspect of the
Property with Laws the cost of such compliance shall be borne by Tenant.
(b) The provisions of paragraph (a) of this Section 6.1
shall not, however, apply to transactions by Tenant if it involves twenty
percent (20%) or less of the Total Rentable Floor Area of the Building and is
with an entity into or with which Tenant is merged or consolidated or to which
substantially all of Tenant's assets, or substantially all of the assets of any
one or more of Tenant's divisions are transferred or to any entity which
controls or is controlled by Tenant or is under common control with Tenant (an
"Affiliate"). In the event of any sublet or assignment of this Lease to any
entity that is not an Affiliate of Tenant or which involves more than twenty
percent (20%) of the Total Rentable Floor Area, then (i) the successor or
assignee/sublessee
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Tenant shall have a net worth reasonably adequate to enable its successor or
assignee to perform its obligations hereunder as reasonably determined by
Landlord (in making such determination Landlord may also consider any material
adverse change in the financial strength of Tenant from its strength as of the
Execution Date); (ii) proof satisfactory to Landlord of such net worth shall
have been delivered to Landlord at least 10 days prior to the effective date of
any such transaction; then, in addition, in connection with any assignment or
sublet of this Lease (either to an Affiliate or a non-Affiliate of Tenant) the
assignee or subtenant shall agree directly with Landlord, by written instrument
in form reasonably satisfactory to Landlord, to assume and be bound by all the
obligations of Tenant hereunder including, without limitation, the covenant
against further assignment and subletting without the Landlord's prior written
consent pursuant to the terms hereof. Tenant shall notify Landlord in writing of
any such sublet or assignment regardless of whether Landlord's consent is
required.
(c) In the event Landlord consents to any assignment or
subletting to a non-Affiliate or to an Affiliate if for more than twenty percent
(20%) of the Total Rentable Floor Area, one half of any rent payable to Tenant
in excess of the Annual Fixed Rent and Additional Rent (i.e., Tax Increases and
Operating Cost Increase payable by Tenant under this Lease) shall be the sole
property of Landlord, payable as Additional Rent upon demand of Landlord;
however, prior to calculating the amount of such excess rent to be shared by
Landlord and Tenant, Tenant shall be entitled to net out (and retain) the
following of its out-of-pocket third-party costs of such transaction: reasonable
attorney's fees, broker's commission, and advertising/marketing costs.
VII. REPAIRS AND CONDITION OF PREMISES; BUILDING SERVICES
7.1 REPAIR AND MAINTENANCE. Landlord and Tenant agree that the
Premises, Building, public areas, roof (including gutters and downspouts),
exterior walls (including exterior glass), structure of the Building (including
all plumbing, mechanical, sewage, elevator and electrical systems) and the
interior of the Premises shall be kept neat and clean and shall be maintained
substantially in the same good order, working condition and repair as they were
in on the Commencement Date (unless they were put into better condition
thereafter, in which case they will be maintained substantially in such better
condition), reasonable wear and tear, and damage by fire, other casualty or a
taking by eminent domain only excepted, . Landlord shall not be responsible to
make any improvements or repairs to the Building other than as expressly
provided in Sections 7.2 (a) and 15.1 or elsewhere in this Lease.
7.2 RESPONSIBILITY FOR REPAIRS AND MAINTENANCE
(a) Landlord shall be responsible for performing, or
causing to be performed, all repairs and maintenance necessary to operate,
maintain and repair the Premises and the Building in the manner provided in
Sections 7.1 above and Section 7.3 below, except to the extent that Tenant
exercises its right under Section 7.6 to contract separately for the delivery of
certain services for the Premises and Building.
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(b) Except for Landlord's obligations under Section 15.1
to perform, at its expense, those capital improvements set forth on Exhibit F,
Tenant shall be responsible for paying all costs of operating, maintaining and
repairing the Building and Premises in the manner provided in Section 7.1 above
and Section 7.3 below, but only to the extent that such costs of so operating,
maintaining and repairing the Building and/or Premises exceed Base Operating
Expenses; Tenant's obligation to pay such costs are more particularly described
in, and governed by, the provisions of Article IX below; however, Tenant shall
also be responsible for the cost of repairs which may be made necessary by
reason of damage to the Building caused by any act or neglect of Tenant or its
agents, employees, contractors or invitees, subject, however, to the waiver of
subrogation provisions of Section 13.16.
(c) If Tenant becomes aware of the need of any repairs
that are required to be made pursuant to the terms hereof, Tenant shall promptly
give Landlord notice of such need. Landlord may elect to make any repairs
immediately and without notice to Tenant if Landlord reasonably believes that
there exists immediate danger to persons or property.
7.3 BUILDING SERVICES. Landlord shall operate and maintain the
Building and the Land in the same condition and quality as other comparable
buildings and parcels of land in first class suburban office parks in the
Framingham/Southborough area. Landlord shall make available to Tenant at all
times heating and cooling as normal seasonal changes may require, provide
reasonable comfortable space temperature and ventilation for occupants of the
Premises under normal business operation at an occupancy of not more than one
person per 250 square feet of rentable area and an electrical load not exceeding
2.5 xxxxx per square foot of rentable area. Tenant shall not introduce into the
Premises personnel or equipment which overloads the capacity of the Building
system or in any other way interferes with the system's ability to perform its
proper functions adequately, PROVIDED, however, if Tenant shall violate the
foregoing, Landlord may, at its option, but without being required to do so,
elect to provide supplementary systems or otherwise take steps to cure such
violation, at Tenant's sole cost and expense. This shall relate, not only to
system installation and removal, but also to continuing costs of operation and
related expenses.
Landlord shall also provide, without additional charge to Tenant:
(i) Passenger elevator service from the passenger
elevator system (if any);
(ii) Hot water for lavatory purposes and cold water
(at temperatures and otherwise as supplied by the
City, Town or other water provider) for drinking,
lavatory and toilet purposes.
(iii) Cleaning and janitorial services to the
Premises on Monday through Friday, excluding national
holidays, provided the same are
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kept in order by Tenant, in accordance with the
cleaning standards set forth from time to time in
EXHIBIT C attached hereto.
(iv) 24-hour access to the Premises subject to such
reasonable security systems, procedures and
restrictions as Tenant may install, but subject to
Landlord's reasonable approval.
7.4 ELECTRICITY. Landlord shall supply electricity, as supplied to
it by the electric utility, to the Premises to meet normal and usual demand
requirements of Tenant for premises lighting; typical office copier, computer
and related equipment and convenience outlets. Tenant agrees, in its use of the
Premises, not to unreasonably burden Building systems nor to exceed any limits
from time to time established under applicable governmental regulations.
7.5 INTERRUPTION OR CURTAILMENT OF BUILDING SERVICES. Landlord
shall have the right to interrupt, curtail, stop or suspend the furnishing of
any services and the operation of any of the Building's systems, in the case of
emergency or accident, or in the event of Force Majeure. In the event of such
emergency, accident or Force Majeure, Landlord shall attempt to notify Tenant of
such interruption, curtailment, stoppage or suspension as soon as reasonably
possible. Tenant shall have no claim of any type or nature whatsoever against
Landlord for any interruption, curtailment, stoppage or suspension of any
electrical or other service being provided hereunder, nor shall any of the same
result in any reduction of Tenant's obligations under this Lease. Landlord shall
not xxxxx or reduce the Annual Fixed Rent or other compensation of whatever form
or nature due from Tenant to Landlord hereunder on account of any such
interruption, curtailment, stoppage or suspension, and Landlord shall use
reasonable diligence, to the extent possible under the circumstances, to
eliminate the cause of such interruption, curtailment, stoppage or suspension.
Notwithstanding the foregoing, if the electrical service to the Premises is
completely discontinued for more than one full work day other than a weekend day
or National Holiday, then the Tenant shall receive a proportional abatement of
the Electricity Component based on the amount of time that electrical service to
the Premises is discontinued. If the delivery of electrical service to the
Premises is discontinued for in excess of five work days, as such work days are
described above, such discontinuation is due to Landlord's gross negligence, and
such discontinuation materially and adversely affects Tenant's ability to
conduct its business in the Premises, then Tenant's Annual Fixed Rent hereunder
shall be abated for each work day beyond such fifth day until such time as the
electrical service is restored.
7.6 TENANT'S CONTRACTS FOR SERVICES. Landlord hereby agrees to
permit Tenant to contract separately for the delivery of certain services to the
Building including, but not limited to, janitorial and cleaning services,
security services and/or snow removal services. However, in no event may Tenant
contract separately for the delivery of property management, maintenance or
repair services relating to the Premises. The Tenant shall deliver to Landlord a
copy of the proposed contract for services, which shall be subject to Landlord's
approval, which shall not be unreasonably withheld, delayed or conditioned.
Landlord agrees to cooperate with, and cause its employees,
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agents and contractors to cooperate with, any provider of such services selected
by Tenant and approved by Landlord. Any such contract must be terminable upon no
more than thirty (30) days prior notice. Landlord shall have the right to
terminate any such contract if Landlord is not reasonably satisfied with the
services delivered and shall do so by giving thirty days prior notice thereof to
both Tenant and the particular contractor. Upon Landlord's approval of any such
contract, Annual Fixed Rent and Base Operating Expenses shall be adjusted
downward by the amount to be paid by Tenant for such services under the
particular contract, which downward adjustment shall in no event be greater than
the amount of the line item for the services provided under such contract set
forth in the attached Exhibit E. If the services provided under such approved
contract are not identified as a separate line item on Exhibit E, but are
services being provided by Landlord under this Lease, then Annual Fixed Rent and
Base Operating Expenses shall be adjusted downward by the fair market value cost
as commonly charged for the delivery of such services in the Framingham-
Southborough area, but such downward adjustment may not exceed the reasonable
amount Landlord states it has budgeted for said service. Such payment by Tenant
for services shall be made in accordance with the payment schedule agreed upon
between Tenant and such service provider, as long as a copy thereof has been
provided to Landlord by Tenant. Landlord's related adjustments shall be made on
the same basis as long as Tenant remains in good payment standing under the
contract between Tenant and such service provider. Upon the request from
Landlord from time to time, Tenant shall provide Landlord with evidence,
reasonably satisfactory to Landlord, that Tenant is in good payment standing
under any such contract. Tenant agrees to pay for any such services at the time
or after they have been delivered but not prior to their delivery. Tenant hereby
agrees to indemnify and hold Landlord harmless from and against any and all
costs, expenses, damages and claims which may be incurred by Landlord in
connection with any such contract for services into which Tenant has entered.
VIII. REAL ESTATE TAXES
It being the intention of the parties hereto that the Annual Fixed Rent
be net of any increases (over Base Real Estate Taxes) in real estate taxes and
all other governmental impositions in the nature thereof or otherwise similarly
related to the Property, Tenant shall pay, as Additional Rent, an escalation
charge, calculated and payable as follows:
8.1 PAYMENT ON ACCOUNT OF REAL ESTATE TAXES.
(a) (i) "Tax Period" or "Tax Year" shall be any fiscal
tax period in respect of which Taxes are due and
payable to the appropriate governmental taxing
authority, any portion of which period occurs
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during the Term of this Lease, the first such period
being the one in which the Term Commencement Date
occurs.
(ii) "Taxes" shall mean the real estate taxes and
other taxes, levies and assessments imposed upon the
Property and upon any personal property of Landlord
used in the operation thereof, or Landlord's interest
in the Property or such personal property; charges,
fees, assessments and payments for transit, housing,
police, fire or other governmental services or
purported benefits to the Property; service or user
payments in lieu of taxes; and any and all other
taxes, levies, assessments and charges arising from
the construction, ownership, leasing, operation, use
or occupancy of the Property or based upon rentals
derived therefrom, which are or shall be imposed by
Municipal or other authorities. Betterment
Assessments and interest thereon shall be apportioned
equally over the longest period permitted by law. As
of the date of execution hereof, "Taxes" shall not
include any franchise, rental, income or profit tax,
capital levy or excise, provided, however, that any
of the same and any other tax, excise, fee, levy,
charge or assessment, however described, that may in
the future be levied or assessed as a substitute for
or an addition to, in whole or in part, any tax, levy
or assessment which would otherwise constitute
"Taxes," foreseen or unforeseen and whether or not
now customary or in the contemplation of the parties
on the date of execution of this Lease, shall
constitute "Taxes," but only to the extent calculated
as if the Building and the Land is the only real
estate owned by Landlord. "Taxes" shall also include
expenses of tax abatement or other proceedings
contesting assessments or levies.
(b) If for any reason, Taxes as allocated on a per square
foot basis for the Total Rentable Floor Area of the Premises shall be greater
for any Tax Year than Base Real Estate Taxes, Tenant shall pay to Landlord, as
Additional Rent, an Escalation Charge in an amount equal to (i) the excess of
Taxes on a square foot basis over Base Real Estate Taxes (the "Tax Increase"),
such amount to be prorated for any fraction of a Tax Year in which the
Commencement Date falls or the Term of this Lease ends.
(c) Tenant shall make reasonably estimated escalation
payments on account of the Tax Increase in monthly installments; such estimated
escalation payments shall be based upon the prior year's assessed Taxes in
comparison with the preliminary or estimated tax bills issued by the
municipality. Landlord shall provide Tenant with a copy of any preliminary
estimated and final tax xxxx issued by the municipality. Upon receipt by
Landlord of a final tax xxxx each Tax Year, Landlord shall advise Tenant of the
final amount of Taxes due and the calculation of the Tax Increase and Tenant's
share thereof. If the amount paid by Tenant under subsection (b) above exceeds
the estimated payments for such Tax Year then Landlord shall repay the Tenant
the amount of such overpayment within thirty (30) days after so advising Tenant
(or refund within 30 days such
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overpayment if the Term of this Lease has ended and Tenant has no further
obligation to Landlord). If, however, the amount payable by Tenant under
Subsection (b) above is greater than such estimated payments made by Tenant for
such Tax Year, Tenant shall pay the amount of such shortfall within 30 days
after being so advised by Landlord.
8.2 ABATEMENT. If Landlord shall receive a tax abatement or refund
of Taxes with respect to any Tax Year, which is not due to vacancies in the
Building, then, if Tenant shall have made any payments on account thereof,
Landlord shall pay to Tenant its share of any balance remaining thereof after
deducting Landlord's expenses reasonably incurred in obtaining such refund
provided (i) there does not then exist a Default of Tenant, and (ii) that in no
event shall Tenant either be entitled to receive more than the payments made by
Tenant on account of Tax Increases for such Year pursuant to paragraph (c) of
Section 8.1 or receive any repayment or abatement of Annual Fixed Rent if Taxes
for any year are less than Base Real Estate Taxes. Landlord is not currently
seeking an abatement of Taxes. If Landlord elects not to seek a tax abatement or
refund in a particular fiscal year, Tenant may elect to do so; however, Tenant
shall keep Landlord informed in writing of all aspects of the abatement
proceedings and Landlord shall have a right of approval over any abatement
settlement, which approval shall not be unreasonably withheld, delayed or
conditioned. In no event may Tenant seek an abatement on terms which would
allocate abated taxes or refunds disproportionately to years in which the Tenant
is responsible for the payment of a Tax Increase. Landlord agrees that it shall,
at Tenant's expense, cooperate with and support any application by Tenant for a
tax abatement or refund; such cooperation shall include, without limitation, the
co-signing of all applications, providing Tenant with historic operating cost
and tax data for the Premises, and providing such other support as may be
necessary and uniquely available from Landlord as the owner of the Property.
IX. OPERATING EXPENSES
It being the intention of the parties that the Annual Fixed Rent be net
of any Building Operating Expense increases, Tenant has agreed to pay, as
Additional Rent, an Escalation Charge, calculated and payable as follows:
9.1 DEFINITIONS, ETC. For the purposes of this Lease, the
following terms shall have the following respective meanings:
OPERATING YEAR: Each calendar year in which any part of the
Term of this Lease shall fall.
OPERATING EXPENSES: The aggregate costs and expenses incurred
by Landlord with respect to the cleaning, administration, insuring, repair and
replacements, ownership, management, landscaping and groundskeeping, maintenance
and operation of the Property, and all Building mechanical, electrical and other
systems and facilities including, without limitation, the lighting, plumbing,
heating, ventilation and air conditioning equipment serving the entire Building,
the elevators and all other electrical
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and other energy or utility service equipment serving the entire Building. In
the event of any loss, repair or damage to the Property or Building which is
covered by insurance, the portion of the cost of such loss, repair or damage
that must be paid for by Landlord due to the existence of the deductible (to the
extent that said deductible is for a reasonable amount compared to those
maintained for comparable buildings) shall be included in Operating Expenses.
Any replacements permitted hereunder shall be substantially the same in quality
and/or utility as the item being replaced (unless Tenant consents to any upgrade
in quality or utility) or shall be expected to reduce Operating Expenses or
otherwise provide some other economic benefit to the operation of Premises such
as the conserving of energy or environmental resources. Landlord agrees to
submit its annual projected Operating Expenses budget to Tenant for its review
not less than thirty (30) days prior to the beginning of each Operating Year;
however, as long as Landlord is not shown to have been unreasonable in
calculation of any items in said budget, Tenant shall have no right to object to
any such items. Landlord hereby agrees that the Operating Expense line item for
management fee and Landlord's off-site administrative costs, which are
subsections of the Management Services line item of the attached Exhibit E,
shall in no event exceed three and one half percent (3 1/2%) of the aggregate of
Annual Fixed Rent and Additional Rent.
If, during the Term of this Lease, Landlord shall make a Capital
Expenditure as hereafter defined, there shall be included in the Operating
Expenses for the Operating Year in which it was made and in Operating Expenses
for each succeeding Operating Year, a proportionate charge-off of such Capital
Expenditure. Annual proportionate charge-off percentages shall be reasonably
determined by Landlord by dividing the original Capital Expenditure plus an
interest factor equal to the interest rate yield on U.S. Treasury securities
then having a maturity closest to the useful life of the particular Capital
Expenditure item plus 250 basis points by the number of years of useful life of
the Capital Expenditure. Useful life shall be based on the industry standards
for the anticipated functional life expectancy of the particular item at issue.
If there is no industry standard, then Landlord shall consult with the
manufacturer of the particular item to determine its useful life. Promptly after
determining (as provided below) whether an item is a Capital Expenditure, the
useful life thereof, and the amount of any annual proportionate charge-off
percentage, Landlord shall provide Tenant with a reasonably detailed statement
describing such determination. Tenant shall have the right to raise any
reasonable, good faith objections to such determination by giving Landlord
notice of such objection within 15 days after receipt of the aforesaid detailed
statement.
For purposes of this Lease, whether any particular item (or series of
functionally related items or components which, in the aggregate, represent a
single repair or replacement project) constitutes a Capital Expenditure or an
Operating Expense, shall be determined in accordance with the following
principles:
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(a) Any single item costing less than $10,000, regardless of its
useful life and regardless of whether such item would be considered
capital under industry standards, shall not be treated as a Capital
Expenditure, but rather as an item of Operating Expense, the full cost
of which shall be included in Operating Expenses for the year incurred.
(b) Any single item either (i) costing $10,000 or more, which
industry standards customarily treat as an operating expense chargeable
against income even if its useful life is greater than one year (such
as, by way of example only, the painting of the exterior of the
Building), or (ii) which has a useful life of three years or less,
shall be treated as an item of Operating Expense, the full cost of
which shall be included in Operating Expenses for the year incurred.
(c) Any single item costing $10,000 or more and having a useful
life of more than three years, which industry standards customarily
treats as a capital item shall be treated as a Capital Expenditure, an
annual proportionate charge-off of which shall be included in Operating
Expenses as provided above in this Section 9.1.
(d) For purposes of determining whether the foregoing dollar
thresholds have been met, the cost of any series of functionally
related items or components which represent a single repair or
replacement project shall be aggregated.
Tenant shall not be charged the cost of any Capital Expenditure incurred in
connection with any expansion, or any material increase in the quality of
operation or the aesthetic appearance, of the Building unless Tenant has agreed
thereto in writing. However, any costs associated with any Capital Expenditures
required to be undertaken by the Landlord during the first twelve months of
Tenant's occupancy of the Premises shall not be included in Operating Expenses
and shall not be charged to Tenant, but rather shall be paid for solely by
Landlord. Capital Expenditures to be required in the first twelve months of
Tenant's occupancy shall be those expressly set forth in Exhibit F hereto or
those which are deemed necessary during said twelve month period in order to
remedy a failure in any of the following items as long as no such failure is
caused by Tenant or its agents, contractors or representatives: the Building's
roof (including gutters and downspouts; exterior walls including exterior
glass); structural and weight-bearing walls and members; floor slabs; base
building as to each of the following systems: HVAC, plumbing, sewage, mechanical
or electrical systems; elevators; and the structural integrity of the Building's
public areas, parking areas and walkways. Landlord's obligation to pay for such
Capital Expenditures during said twelve month period shall not include the
obligation to pay any Capital Expenditures necessary to cause the Premises to
comply with any statutory, regulatory or other similar set of guidelines, except
as otherwise expressly set forth in Exhibit F or elsewhere in this Lease.
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9.2 TENANT'S PAYMENTS.
(a) If for any Operating Year the Operating Expenses as
allocated on a per square foot basis for the Total Rentable Floor Area of the
Premises shall exceed the Base Operating Expenses, Tenant shall pay to Landlord,
as Additional Rent, an escalation charge in an amount equal to the excess of
such Operating Expenses as calculated for the entire Premises ("Operating
Expense Increase"), such amount to be apportioned for any Operating Year in
which the Term Commencement Date falls or the Term of this Lease ends.
(b) Tenant shall make reasonably estimated escalation
payments on account of any Operating Expense Increase in monthly installments
based on the budget described in Section 9.1. Within ninety (90) days after the
end of each Operating Year, Landlord shall submit to Tenant a reasonably
detailed statement (including a reasonably detailed statement of the expenses
included in the sub-sections of the Operating Expense line item for Management
Services which are not subject to the 3 1/2% cap) of Operating Expenses for such
Year, and Landlord shall certify to the accuracy thereof. If such estimated
payments exceed Tenant's share of such Operating Expense Increase, Landlord
shall repay to Tenant the amount of such overpayment within thirty (30) days
after so advising Tenant (or refund within thirty (30) days such overpayment if
the Term of this Lease has ended), and Tenant thereupon shall have no further
obligation to Landlord assuming Tenant is not in default hereunder. If, however,
the amount payable by Tenant under Subsection (a) above is greater than such
estimated payments made by Tenant for such Operating Year, Tenant shall pay
Landlord the amount of such shortfall within 30 days after being so advised by
Landlord. Landlord and Tenant agree that, notwithstanding, any exercise or
non-exercise by Tenant of its right to review and examine Landlord's books and
records of Operating Expenses and Taxes, Landlord and Tenant shall remain
obligated to repay the other for any over and underpayment of Operating Expense
Increases as aforesaid.
(c) Upon written request from Tenant to Landlord received
by Landlord within ninety (90) days after Tenant's receipt of the annual
statement of Operating Expenses, Tenant and its representatives or agents shall
be granted access to and the right to review and examine those of Landlord's
books and tapes and records which relate to the determination and computation of
Operating Expenses for the particular year at issue.
X. INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 TENANT'S INDEMNITY. Tenant agrees to defend, indemnify and
save harmless Landlord from and against all claims, loss, liability, costs and
damages of whatever nature whenever arising from any default by Tenant under
this Lease and from the following, occurring at any time after the execution
date of this Lease: (i) from any accident, injury or damage whatsoever to any
person, or to the property of any person, in or about the Property, except to
the extent due to Landlord's negligence; or (ii) from any accident, injury or
damage occurring outside of the Property, where such accident, damage or injury
results or is claimed to have resulted from an act or omission on the part of
Tenant or Tenant's agents, employees or invitees. Landlord hereby agrees to
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indemnify Tenant against and hold it harmless from all costs, expenses and
liabilities incurred by Tenant as a direct result of Landlord's gross
negligence. These indemnity and hold harmless agreements shall include an
indemnity against all costs, expenses and liabilities incurred in, or in
connection with, any such claim or proceeding brought thereon and the defense
thereof, including, without limitation, reasonable attorney's fees at both the
trial and appellate levels and shall survive the expiration or sooner
termination of the Term of this Lease.
10.2 COMMERCIAL GENERAL LIABILITY INSURANCE. Tenant agrees to
maintain in full force and effect from the date upon which Tenant first enters
the Property for any reason throughout the Term of this Lease, and thereafter so
long as Tenant is in occupancy of any part of the Premises, a policy of
commercial general liability and property damage insurance (including broad form
contractual liability, independent contractor's hazard and completed operations
coverage secured) from established reputable companies in the face amount of not
less than One Million Dollars ($1,000,000.) per person and Ten Million Dollars
($10,000,000.) per occurrence, for personal injury to any number of persons or
damage to property, or such greater amounts as Landlord shall from time to time
request, under which Landlord (and such other persons as are in privity of
estate with Landlord as may be designated in notice from time to time) are named
as additional insureds. Each such policy shall be noncancellable and
non-amendable with respect to Landlord and Landlord's designees without thirty
(30) days' prior notice to Landlord; and a duplicate original or certificate
thereof shall be delivered to Landlord. All insurance required to be carried by
Tenant pursuant to this Section 10.2 may be provided under one or more "blanket"
insurance policies covering other locations and facilities operated by Tenant or
any Affiliate of Tenant, provided that such blanket policies otherwise comply
with the provisions of this Section. In addition, Tenant may satisfy the
$10,000,000 per occurrence liability insurance coverage with excess liability
(so-called "umbrella") coverage, so long as Tenant maintains primary liability
coverage of not less than $5,000,000.
10.3 TENANT'S RISK. Tenant agrees that its use and occupancy of the
Property, and any and all of Tenant's property and leasehold improvements
located at the Property, (including, without limitation, Tenant's Removable
Property) shall be at Tenant's sole risk and hazard except to the extent caused
by Landlord's gross negligence or willful misconduct. Landlord shall have no
responsibility or liability for any injury to Tenant, its employees, invitees,
contractors or others and for any loss of or damage to any of Tenant's property
or leasehold improvements (including, without limitation, Tenant's Removable
Property), or for any inconvenience, annoyance, interruption or injury to
business, arising from any condition of the Property or any of the facilities or
services provided by Landlord or arising from Landlord's making of any repairs
or changes which Landlord is permitted by this Lease, or required by law, to
make in or to any portion of the Premises or other sections of the Property, or
in or to the fixtures, equipment or appurtenances thereof.
10.4 INJURY CAUSED BY THIRD PARTIES. Tenant agrees that Landlord
shall not be responsible or liable to Tenant, or to those claiming by, through
or under
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Tenant, for any loss or damage that may be occasioned by or through the acts or
omissions of persons other than Landlord, its agents, employees, contractors or
invitees, including, without limitation, other tenants or occupants of the
Property.
XI. FIRE AND EMINENT DOMAIN
11.1 DAMAGE BY FIRE OR CASUALTY. If the Premises or any part
thereof shall be damaged by fire or other casualty, then, subject to the last
paragraph of this Section 11.1, Landlord shall proceed with continuous
diligence, subject to then applicable statutes, building codes, zoning
ordinances and regulations of any governmental authority, and at the expense of
Landlord, to repair or cause to be repaired such damage. Landlord agrees to
insure the Building against fire and other casualty normally covered by a
casualty loss policy in an amount equal to the full replacement cost of the
Building. All such repairs made necessary by any act or omission of Tenant shall
be made at the Tenant's expense to the extent that the cost of such repairs are
not paid for by Landlord's insurer or to the extent the cost of such repairs are
less than the deductible amount in Landlord's insurance policy. Landlord agrees
to maintain a reasonable deductible consistent with standards normally
maintained for a building of the value and type of the Building. In the event
Tenant requests Landlord to obtain a lower deductible than it is otherwise
obtaining, the Tenant shall promptly pay to Landlord the additional premium
charge due as a result of the reduction of the deductible. All repairs to and
replacements of property which Tenant is entitled to remove shall be made by and
at the expense of Tenant unless such property is covered by Landlord's
insurance. If the Premises or any part thereof shall have been rendered unfit
for use and occupation hereunder by reason of such damage, the Annual Fixed Rent
or a just and proportionate part thereof, according to the nature and extent to
which the Premises shall have been so rendered unfit, shall be abated until the
Premises (except as to the property which is to be repaired by or at the expense
of Tenant) shall have been made tenantable and have been restored as nearly as
practicable to the condition in which they were immediately prior to such fire
or other casualty, provided, however, that if Landlord or any mortgagee of the
Premises shall be unable to collect the insurance proceeds (including rent
insurance proceeds) applicable to such damage solely because of some action or
inaction on the part of Tenant, or the employees, licensees or invitees of
Tenant, the cost of repairing such damage shall be paid by Tenant and there
shall be no abatement of rent. If such damage is not of a substantial nature and
does not render the Premises unfit for use and occupation by Tenant, then
Landlord agrees to commence repair work within 15 days after the date of the
casualty and diligently to pursue such repair work until completion.
Between 30 and 60 days after any casualty, Tenant may inquire of
Landlord as to Landlord's estimate of the time period necessary to complete
repair of the Premises. Within 30 days after such inquiry, Landlord shall
provide Tenant with Landlord's architect's good faith estimate of the time to
complete such repairs and if such estimate (which shall be non-binding) shall be
more than one year from the date of the casualty, then Tenant may terminate this
Lease by notice given to Landlord within 30 days after Tenant's receipt of
Landlord's architect's estimate.
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If Landlord fails to commence repairs within sixty (60) days after such
damage, and such failure is not due to causes beyond the control of Landlord, or
if Landlord's mortgagee refuses to release to Landlord sufficient insurance
proceeds to restore the Premises to substantially the condition they were in
prior to the damage, Tenant may elect to terminate this Lease by notice to
Landlord. If Landlord, having commenced such repair, has not completed the
repair of such damage within one year from the occurrence of such damage or by
the date given in any Landlord's architect's repair period estimate under the
prior paragraph, if later than one year (the later of such dates is referred to
below as the "Outside Restoration Date"),Tenant may elect to terminate this
Lease by notice to Landlord within twenty (20) days of the Outside Restoration
Date, the effective termination date pursuant to such notice shall not be less
than thirty (30) days after the date on which such termination notice is
received by Landlord. The Outside Restoration Date shall be extended by up to an
additional 90 days for delays caused by causes beyond the reasonable control of
Landlord as described in the next sentence. Landlord shall not be liable for
delays in the making of any such repairs which are due to government regulation,
casualties and strikes, unavailability of labor and materials, delays in
obtaining insurance proceeds, and other causes beyond the reasonable control of
Landlord, nor shall Landlord be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting from delays in repairing
such damage; however if such delays continue more than 90 days beyond the
initial Outside Restoration Date, Tenant may elect to terminate this Lease in
the manner provided above.
If (i) the Building is so damaged by fire or other casualty (whether or
not insured) at any time during the last twelve months of the Term that the cost
to repair such damage is reasonably estimated to exceed one-third of the total
Annual Fixed Rent payable hereunder for the period from the estimated completion
date of repair until the end of the Term, or (ii) at any time during the last
twelve months of the Term the Building (or any substantial portion thereof) is
so damaged by fire or other casualty (whether or not insured) that substantial
alteration or reconstruction or demolition of the Building (or a substantial
portion thereof) shall in Landlord's reasonable judgment be required, then and
in any of such events, this Lease and the term hereof may be terminated at the
election of Landlord by a notice from Landlord to Tenant within sixty (60) days
following such fire or other casualty; the effective termination date pursuant
to such notice shall be not less than thirty (30) days after the day on which
such termination notice is received by Tenant. In the event of any termination,
the Term shall expire as though such effective termination date were the date
originally stipulated in Section 1.1 for the end of the Term and the Annual
Fixed Rent and Additional Rent shall be apportioned as of such date.
11.2 CONDEMNATION - EMINENT DOMAIN. If, during the Term, all or any
substantial part of the Premises are actually taken away from Landlord or its
successors in title by eminent domain, this Lease shall terminate at either
Landlord's or Tenant's election, which may be made (notwithstanding that
Landlord's entire interest may have been divested) by notice given within 90
days after the event giving rise to the election to terminate arises, specifying
the effective date of termination. The effective date of termination specified
shall not be less than 60 days after the date of notice of such
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termination unless an earlier date is required by the terms of the taking.
Unless terminated pursuant to the foregoing provisions, this Lease shall remain
in full force and effect following any such taking, subject, however, to the
following provisions. If in any such case the Premises or any substantial part
thereof are rendered unfit for use and occupation and this Lease is not
terminated, Landlord shall use due diligence (following the expiration of the
period in which Landlord may terminate this Lease pursuant to the foregoing
provisions of this Section, or if Landlord and Tenant waive their right to
terminate, following such waiver) to put the Premises, or what may remain
thereof (excluding any items installed or paid for by Tenant which Tenant may be
required to remove hereunder), into proper condition for use and occupation, and
a just proportion of the Annual Fixed Rent and Additional Rent according to the
nature and extent of the injury shall be abated until the Premises or such
remainder shall have been put by Landlord in such condition, and in case of a
taking which permanently reduces the area of the Premises, a just proportion of
the Annual Fixed Rent and Additional Rent shall be abated for the remainder of
the Term.
11.3 EMINENT DOMAIN AWARD. Except for Tenant's relocation expenses
and any award for Tenant's personal property and fixtures (specifically so
designated by the court or authority having jurisdiction over the matter)
Landlord reserves to itself any and all rights to receive awards made for
damages to the Premises, or the leasehold hereby created, or any one or more of
them, accruing by reason of exercise of eminent domain or by reason of anything
lawfully done in pursuance of public or other authority. Tenant hereby releases
and assigns to Landlord all Tenant's rights to such awards, and covenants to
deliver such further assignments and assurances thereof as Landlord may from
time to time request, hereby irrevocably designating and appointing Landlord as
its attorney-in-fact to execute and deliver in Tenant's name and behalf all such
further assignments thereof.
XII. DEFAULT
12.1 TENANT'S DEFAULT.
(a) If at any time subsequent to the Execution Date of
this Lease any one or more of the following events (herein referred to as a
"Default of Tenant") shall happen:
(i) Tenant shall fail to pay the Annual Fixed Rent or
Additional Rent or other charges hereunder when due
and such failure shall continue for five (5) full
business days after notice thereof from Landlord ;
however, once such a notice has been given by
Landlord, no notice shall be required for any failure
to pay during the twelve (12) months after said
notice and Tenant shall be considered in default if
such failure to pay shall continue for five (5)
business days after such due date; or
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(ii) Tenant shall neglect or fail to perform or
observe any other covenant herein contained on
Tenant's part to be performed or observed or Tenant
shall desert or abandon the Premises or the Premises
shall become, or appear to have become vacant
(regardless of whether the keys shall have been
surrendered or the rent and all other sums due shall
have been paid) and Tenant shall fail to remedy the
same within thirty (30) days after notice to Tenant
specifying such neglect or failure, or if such
failure is of such a nature that Tenant cannot
reasonably remedy the same within such thirty (30)
day period, Tenant shall fail to commence promptly to
remedy the same and to prosecute such remedy to
completion with diligence and continuity; or
(iii) Tenant suffers financial difficulties such as
the issuing, filing or recording of unsatisfied liens
or judgments, bankruptcy, receivership or other
debtor-relief, creditors' rights or reorganization
proceedings (voluntary or involuntary, under State or
Federal law), which are not discharged, satisfied or
dismissed within sixty (60) days; or
(iv) If either a Default of the kind set forth in
clauses (i) or (ii) above occurs or if (whether or
not such Default has been cured, or the Default
waived by Landlord) an event which would constitute a
similar Default if not cured within the applicable
grace period occurs, more than once within the next
365 days.
then in any such case Landlord may invoke any remedy (including the remedy of
specific performance) allowed at law or in equity as if particular remedies were
not herein provided for and, in addition thereto: (1) if such Default of Tenant
shall occur prior to the Term Commencement Date, this Lease shall, at the option
of the Landlord, without further act on the part of Landlord, terminate, and (2)
if such Default of Tenant shall occur on or at any time after the Term
Commencement Date, Landlord may terminate this Lease by notice to Tenant; and
thereupon, this Lease shall come to an end on the date specified therein as
fully and completely as if such date were the date herein originally fixed for
the expiration of the Term of this Lease and Tenant will then quit and surrender
the Premises to Landlord, but Tenant shall remain liable as hereinafter
provided.
(b) If this Lease shall have been terminated as provided
in this Article, or if any execution or attachment shall be issued against
Tenant or any of Tenant's property whereupon the Premises shall be taken or
occupied by someone other than Tenant, then Landlord may, without notice,
re-enter the Premises, either by summary proceedings, ejectment or other legal
means, and remove and dispossess Tenant and all other persons and any and all
property from the same, as if this Lease had not been made, and Tenant hereby
waives the service of notice of intention to re-enter or to institute legal
proceedings to that end. In the event Landlord takes possession of the Premises,
it hereby agrees to exercise reasonable efforts to relet the Premises; however,
its failure to do so
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shall not constitute default hereunder nor shall this duty to exercise
reasonable efforts apply to any mortgagee who takes possession of the Premises.
(c) In the event of any termination, Tenant shall pay the
Annual Fixed Rent, Additional Rent and other sums payable hereunder up to the
time of such termination, and thereafter Tenant, whether or not the Premises
shall have been relet, shall be liable to Landlord for and shall pay to
Landlord, as liquidated current damages, the Annual Fixed Rent, Additional Rent
and other sums which would be payable hereunder if such termination had not
occurred, less the net proceeds, if any, of any reletting of the Premises, after
deducting all commercially reasonable expenses of Landlord in connection with
such reletting, including, without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' reasonable fees, advertising, expense of
employees, alteration costs and expenses of preparation for such reletting.
Tenant shall pay such current damages to Landlord monthly on the days on which
the Annual Fixed Rent would have been payable hereunder if this Lease had not
been terminated.
(d) At any time after such termination, whether or not
Landlord shall have collected any such current damages, at Landlord's election,
Tenant shall pay (in addition to such current damages as have accrued but may
not yet then have been collected) to Landlord upon demand, as liquidated final
damages and in lieu of all such further current damages beyond the date of such
demand, (in view of the uncertainty of prompt re-letting and the expense
entailed in re-letting the premises) either (i) an amount equal to the Annual
Fixed Rent, Additional Rent and other sums due hereunder and payable for and in
respect of the twelve (12) month period next preceding the date of termination,
as aforesaid; or (ii) an amount equal to THE EXCESS, IF ANY OF (x) the Annual
Fixed Rent, Additional Rent and other sums as in this Lease provided which would
be payable hereunder from the date of such demand for what would be the then
unexpired Term of this Lease if the same remained in effect, OVER (y) the then
fair rental value of the Premises for the same period, less reletting costs
reasonably projected by Landlord.
(e) In the case of any Default of Tenant, re-entry,
expiration and dispossession by summary proceedings or otherwise, Landlord may
(i) relet the Premises or any parts thereof, either in the name of Landlord or
otherwise, for any term(s), and may grant concessions or free rent to the extent
that Landlord considers it to be advisable in order to relet the same and (ii)
may make such reasonable alterations, repairs and decorations in the Premises as
Landlord in its sole judgment considers advisable or necessary for the purpose
of reletting the Premises. The making of such alterations, repairs and
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Landlord shall in no event be liable in any way
whatsoever for failure to relet the Premises, or , in the event that the
Premises are relet, for failure to collect the rent under such reletting.
(f) Should either Landlord or Tenant employ an attorney
to enforce any of the provisions of this Lease, the non-prevailing party in any
final judgment agrees to pay the other party's reasonable expenses, including
reasonable attorneys' fees and
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expenses in or out of litigation, and, if in litigation, trial, appellate,
bankruptcy or other proceedings, expended or incurred in connection therewith,
as determined by a court of competent jurisdiction.
XIII. MISCELLANEOUS PROVISIONS
13.1 WAIVER.
(a) Failure on the part of Landlord or Tenant to complain
of any action or non-action on the part of the other, no matter how long the
same may continue, shall not be a waiver by Tenant or Landlord, respectively, of
any rights hereunder. Further, no waiver at any time of any of the provisions
hereof by Landlord or Tenant shall be construed as a waiver of any of the other
provisions hereof. The consent or approval of Landlord or Tenant to or of any
action by the other requiring such consent or approval shall not be construed to
waive or render unnecessary Landlord's or Tenant's consent or approval to or of
any subsequent similar act by the other.
(b) Any payment by Tenant, or acceptance by Landlord, of
a lesser amount than shall be due from Tenant to Landlord shall in all events be
considered as a payment on account of the earliest installment of any payment
due from Tenant under the provisions hereof. The acceptance by Landlord of a
check for a lesser amount with an endorsement or statement thereon, or upon any
letter accompanying such check, that such lesser amount is payment in full,
shall be given no effect, and Landlord may accept such check without prejudice
to any other rights or remedies which Landlord may have against Tenant.
13.2 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
provisions of this Lease, on payment of the Annual Fixed Rent, Additional Rent
and other sums due hereunder and observing, keeping and performing all of the
other terms and provisions of this Lease on Tenant's part to be observed, kept
and performed shall lawfully, peaceably and quietly have, hold, occupy and enjoy
the Premises during the term hereof, without hindrance or ejection by any person
lawfully claiming by, under or through Landlord to have title to the Premises
superior to Tenant; the foregoing covenant of quiet enjoyment is in lieu of any
other such covenant, express or implied.
13.3 LANDLORD'S LIABILITY
(a) Tenant specifically agrees to look solely to
Landlord's then interest in the Property at the time owned, for recovery of any
judgment from Landlord, it being specifically agreed that in no event shall
Landlord, (original or successor), or any of the officers, trustees, directors,
partners, beneficiaries, joint venturers, members, stockholders or other
principals or representatives, and the like, disclosed or undisclosed, ever be
personally liable for any such judgment, or other liability or for the payment
of any monetary obligation to Tenant. In no event shall Landlord's officers,
trustees, directors, partners, beneficiaries, joint venturers, members,
stockholders or other principals or
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representatives, and the like, as aforesaid, ever be individually liable to
Tenant nor shall they or Landlord ever be liable for either (i) any indirect or
consequential damages suffered by Tenant from whatever cause or (ii) any loss or
damage that may accrue to Tenant's stock or business.
(b) With respect to any repair, restoration or other
services or utilities to be furnished by Landlord to Tenant, Landlord shall in
no event be liable for failure to furnish or to perform same when prevented from
doing so by reason of any matter beyond the reasonable control of Landlord, and
any measured time period shall be extended by the period during which Landlord
is so prevented provided that Landlord shall exercise reasonable efforts to
remove the cause of such delay.
(c) As used in this Lease, "Force Majeure" shall mean,
collectively and individually, strike, lockout or other labor trouble, fire or
other casualty, governmental pre-emption of priorities or other controls in
connection with a national or other public emergency or shortages of fuel,
supplies or labor; breakdown, accident; war or other emergency; any other cause
beyond Landlord's reasonable control; PROVIDED however, that no cause due to any
act or neglect of Tenant or Tenant's servants, agents, employees, licensees or
any person claiming by, through or under Tenant shall be considered an act of
Force Majeure unless it hinders or delays Landlord's performance hereunder.
13.4 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE.
(a) If, at any time and from time to time, Landlord
assigns this Lease or the rents payable hereunder to the holder of any mortgage
on the Building, or to any other party for the purpose of securing financing
(the holder of any such mortgage and any other such financing party are referred
to herein as the "Financing Party"), whether such assignment is conditional in
nature or otherwise, the following provisions shall apply:
(i) Such assignment to the Financing Party shall not
be deemed an assumption by the Financing Party of any
obligations of Landlord hereunder unless such
Financing Party shall, by written notice to Tenant,
specifically otherwise elect;
(ii) Except as provided in (i) above and (iii) below,
the Financing Party shall be treated as having
assumed Landlord's obligations hereunder only upon
foreclosure of its mortgage (or voluntary conveyance
by deed in lieu thereof) or the taking of possession
of the Premises and, with respect to obligations
regarding return of the security deposit, only upon
receipt of the funds constituting such security
deposit;
(iii) The Financing Party shall only be responsible
for such breaches under the Lease by Landlord which
occur during the period of ownership by the Financing
Party after such foreclosure (or
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voluntary conveyance by deed in lieu thereof) or
taking of possession, as aforesaid;
(iv) In the event Tenant alleges that Landlord is in
default under any of Landlord's obligations under
this Lease, Tenant agrees to give the holder of any
mortgage, by certified mail, a copy of any notice of
default which is served upon the Landlord, provided
that prior to such notice, Tenant has been notified,
in writing, (whether by way of notice of an
assignment of lease, request to execute an estoppel
letter, or otherwise) of the address of any such
holder. Tenant further agrees that if Landlord shall
have failed to cure such default within the time
provided by law or such additional time as may be
provided in such notice to Landlord, such holder
shall have forty-five (45) days after the last date
on which Landlord could have cured such default
within which such holder will be permitted to cure
such default. If such default cannot be cured within
such sixty day period, then such holder shall have
such additional time as may be necessary to cure such
default but not in excess of six (6) months, if
within such sixty day period such holder has
commenced and is diligently pursuing the remedies
necessary to effect such cure (including, but not
limited to, commencement of foreclosure proceedings,
if necessary, to effect such cure), in which event
Tenant shall have no right with respect to such
default while such remedies are being diligently
pursued by such holder.
In all events, any liability of a Financing Party shall be limited to
the interest of such Financing Party in the Land and Building, and in no event
shall a Financing Party ever be liable for any indirect or consequential
damages.
Tenant hereby agrees to enter into such agreements or instruments as
may, from time to time, be reasonably requested in confirmation of the
foregoing.
(b) In no event shall the acquisition of Landlord's
interest in the Property by a purchaser which, simultaneously therewith, leases
landlord's entire interest in the Property back to seller thereof be treated as
an assumption of Landlord's obligations hereunder, whether by operation of law
or otherwise, but Tenant shall look solely to such seller-lessee, and its
successors in title from time to time for performance of Landlord's obligations
hereunder until such time as such purchaser-lessor has assumed the Landlord's
position. In any such event, this Lease shall be subject and subordinate to the
lease to such purchaser, provided that any such purchaser-lessor agrees to
recognize Tenant's rights hereunder so long as Tenant is not in default beyond
any applicable notice, grace or cure period.
For all purposes, such seller-lessee, and its successors in title,
shall be the Landlord hereunder unless and until Landlord's position shall have
been assumed by such purchaser-lessor.
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(c) Except as provided in paragraph (b) of this Section,
in the event of any transfer of title to the Property by Landlord, Landlord
shall thereafter be entirely freed and relieved from the performance and
observance of all covenants and obligations hereunder arising thereafter and for
all liabilities asserted thereafter provided that if the transferee of title is
a party other than a mortgagee or other creditor of Landlord's, that said
transferee agrees to be bound by the covenants and obligations of Landlord
hereunder from and after the date of such transfer.
13.5 RULES AND REGULATIONS. Tenant shall abide by the Rules and
Regulations presently in effect, (a copy of which has been attached hereto as
Exhibit B) and as they may subsequently from time to time be amended by Landlord
as approved by Tenant, which approval shall not be unreasonably withheld,
delayed or conditioned. Tenant shall have such right of approval only if it is
in occupancy of at least eighty percent (80%) of the Total Rentable Floor Area
and as long as the particular rules and regulations are not for the purpose of
protecting Landlord's interest in the Premises or of addressing the reasonable
concerns of abutters or of responding to any instructions from public
authorities.
13.6 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision
of this Lease, or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
13.7 PROVISIONS BINDING, INC. Except as herein otherwise provided,
the terms hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant and, if Tenant
shall be an individual, upon and to his heirs, executors, administrators,
successors, and assigns. Each term and each provision of the Lease to be
performed by Tenant shall be construed to be both a covenant and a condition.
The reference contained to successors and assigns of Tenant is not intended to
constitute a consent to assignment by Tenant, but refers only to an assignment
expressly permitted under the terms of this Lease.
13.8 RECORDING. Tenant agrees not to record this Lease, but each
party hereto agrees, on the request of the other, to execute a memorandum or
notice of lease in recordable form, complying with applicable law and reasonably
satisfactory to Landlord's attorneys. In no other event shall such document set
forth the rent or other charges payable to Tenant under this Lease. Any such
document shall expressly state that it is executed pursuant to the provisions
contained in this Lease and that it is not intended to vary the terms and
conditions of this Lease.
13.9 NOTICES. Any notice, consent, request, xxxx, demand or
statement hereunder by either party to the other party shall be in writing, and,
if received at Landlord's or Tenant's address, shall be deemed to have been duly
given when either
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delivered or served personally or mailed in a postpaid envelope, deposited in
the United States mails addressed to Landlord at Landlord's Address, or if any
address for notices shall have been duly changed as hereinafter provided, if
mailed as aforesaid to the party at such changed addresses. A copy of notices to
Tenant should also be sent to Genzyme, Inc., One Xxxxxxx Square, Building 1400,
Xxxxxxxxx, Xxxxxxxxxxxxx, 00000, Attn: General Counsel. Either party may at any
time change the address or specify an additional address for such notices,
consents, requests, bills, demands or statements by delivering or mailing, as
aforesaid, to the other party a notice stating the change and setting forth the
changed or additional address, provided such changed or additional address is
within the continental United States.
13.10 BILLS AND CHARGES. All bills and statements for reimbursement
or other payments or charges due from Tenant to Landlord hereunder shall be due
and payable in full fifteen (15) days after submission thereof by Landlord to
Tenant unless otherwise provided herein. Tenant's failure to make timely payment
of any amounts indicated by such bills and statements, whether for work done by
Landlord at Tenant's request, reimbursement provided for by this Lease or for
any other sums properly owing by Tenant to Landlord, shall be treated as a
default in the payment of Annual Fixed Rent, in which event Landlord shall have
all rights and remedies provided in this Lease for the nonpayment of Annual
Fixed Rent.
13.11 PARAGRAPH HEADINGS. The paragraph headings throughout this
instrument are for convenience and reference only, and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Lease.
13.12 SUBORDINATION. This Lease shall be subject and subordinate to
all ground or underlying leases and any mortgages that may now or hereafter be
placed upon the Building and/or the Land and to any and all advances to be made
under such mortgages and to the interest thereon, and all renewals, extensions
and consolidations thereof. Prior to the Commencement Date hereunder Landlord
shall obtain a non-disturbance agreement from the sole mortgagee of the
Premises, such non-disturbance to be in a form and substance which is customary
for mortgagee such as Manufacturer's Life Insurance Company and is reasonably
satisfactory to Tenant. The receipt by Tenant of such a non-disturbance
agreement from any future ground lessor or mortgagee shall be a precondition of
Tenant's obligation to sign a subordination agreement for future ground lessors
or mortgagees. Any mortgagee may elect to give this Lease priority to its
mortgage, except that the Lease shall not have priority to (i) the prior rights
to insurance proceeds and the disposition thereof under the mortgage; (ii) the
prior rights to condemnation awards and the disposition thereof under the
mortgage; and (iii) intervening liens. In the event of such election and upon
notification by such mortgagee, this Lease shall be deemed prior in lien to the
said mortgage. This Section shall be self-operative, but in confirmation
thereof, Tenant shall execute and deliver whatever instruments may be reasonably
required by the lessor or the mortgagee (or mortgagees) to acknowledge such
subordination or priority in recordable form so long as the terms thereof are
consistent with the terms of the Lease, and if Tenant fails to do so within ten
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(10) days after demand, Landlord shall remind Tenant of its obligations to
execute and deliver said instrument; however, if Tenant fails to do so within
ten (10) days of such reminder, Tenant shall be deemed in default of this Lease.
Tenant's obligation to subordinate this Lease to any ground lease or mortgage is
subject to the condition that either the certificate or instrument to be
executed or a separate document executed at the same time provide that the
lessor or mortgagee execute and deliver to the Tenant an agreement not to
disturb the Tenant's possession as long as the Tenant is not in default
(continuing beyond any applicable notice, grace or cure period) with respect to
any of the covenants or conditions of this Lease to be performed and observed by
the Tenant.
13.13 STATUS REPORT. Recognizing that both parties may find it
necessary to establish to third parties, such as accountants, banks, mortgagees,
ground lessors, or the like, the then current status of performance hereunder,
either party, on the request of the other made from time to time, will promptly
furnish to Landlord, or the holder of any mortgage or ground lease encumbering
the Premises, or to Tenant, as the case may be, a statement of the status of any
matter pertaining to this Lease, including, without limitation, acknowledgements
that (or the extent to which) each party is in compliance with its obligations
under the terms of this Lease.
13.14 REMEDYING DEFAULTS. (a) Following a default by Tenant
continuing, other than in the case of emergencies, beyond any applicable notice,
grace or cure periods, Landlord shall have the right, but shall not be required,
to pay such sums or do any act which requires the expenditure of monies which
may be necessary or appropriate by reason of the failure or neglect of Tenant to
perform any of the provisions of this Lease, and in the event of the exercise of
such right by Landlord, following such default, Tenant agrees to pay to Landlord
forthwith upon demand all such sums as Additional Rent, together with interest
thereon at a rate equal to 3% over the base rate in effect from time to time at
the Bank of Boston as an additional charge. Any payment of Additional Rent or
other sums payable hereunder not paid when due or upon the expiration of any
applicable grace period shall, at the option of Landlord, be treated as
Additional Rent and shall bear interest at the rate as aforesaid from the date
thereof and shall be payable forthwith on demand by Landlord, as an additional
charge. If any payment of Annual Fixed Rent is not paid when due, then Tenant
shall pay to Landlord interest on such unpaid amount each month and for each
part thereof during which said delinquency continues at an annual rate three (3)
percentage points over the then Bank of Boston base rate; provided, however, in
no event shall such interest exceed the maximum permitted to be charged by
applicable law;
(b) In the event that Landlord fails to meet its
obligation hereunder to repair and maintain the Premises as expressly set forth
in Article VII hereunder, and if said failure continues for seven (7) days or
more after Tenant has so notified Landlord in writing, the Tenant shall have the
right, but not the obligation, to pay such sums or do any act which requires the
expenditure of monies which may be reasonably necessary or appropriate by reason
of the failure or neglect of Landlord to perform said obligation, and in the
event of the exercise of such right by Tenant, following such default, Tenant
shall have the right to set-off the reasonable amount expended by it in this
connection but only
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to the extent the Tenant's expenditures are equal to or less than the applicable
Base Year operating cost line item. In the event that Landlord fails to meet its
obligations hereunder as set forth in Section 9.1 with respect to the Capital
Expenditures required to be performed by Landlord under Exhibit F or during the
first twelve (12) months of Tenant's occupancy or if Landlord fails to perform
remediation work for which it is expressly responsible under the provisions of
Section 13.19 hereof, and if Landlord fails to commence and diligently pursue
such cure within seven (7) days or more after Tenant has so notified Landlord in
writing, then Tenant shall have the right, but not the obligation, to pay such
sums or do any act which requires the expenditure of monies which may be
reasonably necessary or appropriate by reason of the failure or neglect of
Landlord to perform said obligation, and in the event of the exercise of such
right by Tenant, following such default, Tenant shall have NO right of set-off
but shall be entitled to recover from Landlord the reasonable amounts expended
by it in this connection.
13.15 HOLDING OVER. Any holding over by Tenant after the expiration
of the term of this Lease shall be treated as a daily tenancy at sufferance at a
rate equal to the then (at the time of Lease expiration) fair market rental
value of the Premises but in no event less than 1-1/2 times the sum of (i)
Annual Fixed Rent then in effect plus (ii) Additional Rent, Escalation Charges
and other charges herein provided (prorated on a daily basis). Tenant shall also
pay to Landlord for all damages, direct and/or indirect (including, without
limitation, the loss of a tenant and of rental income) sustained by reason of
any such holding over. Otherwise, such holding over shall be on the terms and
conditions set forth in this Lease as far as applicable.
13.16 WAIVER OF SUBROGATION. Landlord and Tenant mutually agree that
(insofar as and to the extent that such agreement may be effective without
invalidating or making it impossible to secure insurance coverage obtainable
from responsible insurance companies doing business in Massachusetts at
commercially reasonable rates), with respect to any loss which is covered by
insurance then being carried by Landlord or Tenant, respectively, the party
carrying such insurance and suffering such loss releases the other of and from
all claims with respect to such loss (but not for any claims for any deductible
costs paid for by the party suffering such loss); and they further mutually
agree that their respective insurance companies shall have no right of
subrogation against the other on account thereof, even though extra premiums may
result therefrom.
Notwithstanding any provisions of this Lease to the contrary, Landlord
and Tenant each hereby waives any and all right of recovery which it may have
against the other party and its agents, employees, licensees and contractors for
any loss or damage to the Building or Premises and for any injury to or death of
persons occurring in, on or about the Building with respect to any hazard which
(a) would be covered under a standard "all-risk" property insurance policy
without regard to the amount of coverage other than a reasonable deductible with
malicious mischief and vandalism coverage, whether or not such policy is then
being carried by the Landlord or Tenant or (b) is covered by insurance then
being carried by the Landlord or Tenant, notwithstanding that such loss or
damage may result from the negligence or other fault of Landlord, Tenant or
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their respective, agents, employees, subtenants, licensees, invitees or
assignees. In the event that an 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
release and non-subrogation provision is waived, then the obligation of
reimbursement shall cease for a period of time as such waiver shall be
effective. If the release of either party provided above shall contravene any
law with respect to exculpatory agreements, the liability of the party for whose
benefit such release was intended shall remain but shall be secondary to that of
the other party's insurer.
13.17 SURRENDER OF PREMISES. Upon the expiration or earlier
termination of the Term of this Lease, Tenant shall peaceably quit and surrender
to Landlord the Premises in substantially the same good order, condition and
repair the Premises were in as of the Commencement Date, together with all
alterations, additions and improvements which may have been made or installed
in, on or to the Premises prior to or during the Term of this Lease, excepting
only ordinary wear and use and damage by fire, other casualty and taking by
eminent domain, for which, under other provisions of this Lease, Tenant has no
responsibility of repair or restoration. In the event Tenant changes any of the
space in the Building to a non-office character Tenant shall, at its own
expense, restore said space to an open-floor office lay-out as of the date of
expiration or earlier termination of the Lease. Tenant shall return all keys to
the Premises, remove all of the Tenant's Removable Property and, to the extent
specified by Landlord at the time Landlord approves the plans for the same, all
alterations and additions made by Tenant and all partitions wholly within the
Premises(however, in no event shall Tenant be required to remove any alterations
installed as part of its initial build-out); and shall repair any damages to the
Premises or the Building caused by such installation or removal. Any of the
Tenant's Removable Property which shall remain in the Building or on the
Premises after the expiration or termination of the Term of this Lease and
continues to remain there for five (5) days after notice thereof from Landlord
shall conclusively be deemed to have been abandoned, and either may be retained
by Landlord as its property or may be disposed of in such manner as Landlord may
see fit, at Tenant's sole cost and expense.
13.18 BROKERAGE. Tenant warrants that it has had no dealings with
any broker or agent in connection with this Lease except for any broker
designated in Section 1.1. Tenant covenants to pay, hold harmless and indemnify
Landlord from and against any and all costs, expense or liability for any
compensation, commission and charges claimed by any broker or agent other than
any such broker designated in Section 1.1 with respect to this Lease or the
negotiations thereof arising from a breach of the foregoing warranty. Landlord
shall be responsible for payment of any brokerage commission to any broker
designated in Section 1.1.
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13.19 HAZARDOUS SUBSTANCES.
13.19.1 Tenants Covenants Regarding Hazardous
Substances:
13.19.1.1 LANDLORD'S CONSENT REQUIRED. Tenant
shall not cause or permit any Hazardous Substances, as defined in Section
13.19.1.5 below, to be brought upon or kept or used in or about the Premises,
the Building, or the Property by Tenant, its agents, employees, contractors, or
invitees, unless (a) such Hazardous Substances are necessary for Tenant's
business (and such business is a permitted use under Section 5.1 above) and (b)
Tenant obtains the prior written consent of Landlord, which consent shall not be
unreasonably withheld provided that the net worth/environmental insurance
standards of the last sentence of Section 13.19.4 below are met.
13.19.1.2 COMPLIANCE WITH ENVIRONMENTAL LAWS.
Tenant shall at all times and in all respects comply with all local, state, and
federal laws, ordinances, regulations, and orders (collectively "Hazardous
Substances Laws" relating to industrial hygiene, environmental protection, or
the use, analysis, generation, manufacture, storage, disposal, or transportation
of any Hazardous Substances.
13.19.1.3 HAZARDOUS SUBSTANCES HANDLING.
Tenant shall at its own expense procure, maintain in effect, and comply with all
conditions of any and all permits, licenses, and other governmental and
regulatory approvals required for Tenant's use of the Premises, including,
without limitation, discharge of (appropriately treated) materials or wastes
into or through any sanitary sewer serving the Premises, the Building, or the
Property. Except as discharged into a sanitary sewer in strict compliance and
conformity with all applicable Hazardous Substances Laws, Tenant shall cause any
and all Hazardous Substances to be removed from the Premises or from the
Property and to be transported solely by duly licensed haulers to duly licensed
facilities for final disposal of such wastes. Tenant shall in all respects
handle, treat, deal with, and manage any and all Hazardous Substances in, on,
under, or about the Premises, the Building, or the Property in total conformity
with all applicable Hazardous Substance Laws and prudent industry practices
regarding management of such Hazardous Substances. Upon expiration or earlier
termination of the Term of the Lease, Tenant shall cause all Hazardous
Substances to be removed from the Premises (except such Hazardous Substances, if
any, as were located in the premises prior to the commencement of Tenant's
occupancy thereof) and the Property (if Tenant caused such Hazardous Substance
to located on the Property) and to be transported for use, storage, or disposal
in accordance and compliance with all applicable Hazardous Substances Laws;
PROVIDED HOWEVER, that Tenant shall not take any remedial action in response to
the presence of any Hazardous Substance in or about the Premises, the Building,
or the Property, nor enter into any settlement agreement, consent decree, or
other compromise in respect to any claims relating to any Hazardous Substances
in any way connected with the Premises, the Building, or the Property, without
first notifying Landlord of Tenant's intention to do so
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and affording Landlord adequate opportunity to appear, intervene, or otherwise
appropriately assert and protect Landlord's interest with respect thereto.
13.19.1.4 NOTICES. If at any time Tenant
shall become aware, or have reasonable cause to believe, that any Hazardous
Substance has come to be located on or beneath the Property, Tenant shall,
immediately upon discovering such presence or suspected presence of the
Hazardous Substance, give written notice of that condition to the Landlord. In
addition, Tenant shall immediately notify Landlord in writing of (i) any
enforcement, cleanup, removal, or other governmental or regulatory action
instituted, completed, or threatened pursuant to any Hazardous Substances Laws,
(ii) any claim made or threatened by any person against Tenant, the Premises,
the Building, or the Property relating to damage, contribution, cost recovery,
compensation, loss, or injury resulting from or claimed to result from any
Hazardous Substances, and (iii) any reports made to any local, state, or federal
environmental agency arising out of or in connection with any Hazardous
Substances in or removed from the Premises, the Building, or the Property,
including any complaints, notices, warnings, or asserted violations in
connection therewith. Tenant shall also supply to Landlord as promptly as
possible, and in any event within five (5) business days after Tenant first
receives or sends the same, copies of all claims, reports, complaints, notices
warnings or asserted violations related in any way to the Premises the Building,
the Property, or the Tenant's use thereof. Tenant shall promptly deliver to
Landlord copies of hazardous waste manifests reflecting the legal and proper
disposal of all Hazardous Substances removed from the Premises or the Property.
13.19.1.5 DEFINITION OF HAZARDOUS SUBSTANCES.
As used in this Agreement, the term "Hazardous Substance or Substances" means
any hazardous or toxic substances, materials or wastes, including, but not
limited to, those substances, materials, and wastes listed in the United States
Department of Transportation Hazardous Materials Table (49 CFR 172.101) or by
the Environmental Protection Agency as hazardous substances (40 CFR Part 302)
and amendments thereto, or such substances, materials, wastes which are or
become regulated under any applicable local, state, or federal law excluding,
however, small quantities of materials such as cleaning solvents,
computer/photocopier toner and similar substances typically used in the ordinary
course of a business office.
13.19.2 INDEMNIFICATION OF LANDLORD. Tenant shall
indemnify, defend (by counsel reasonably acceptable to Landlord), protect, and
hold harmless Landlord, and each of Landlord's partners, directors, officers,
employees, agents, attorney, successors, and assigns, from and against any and
all claims, liabilities, penalties, fines, judgements forfeitures, losses
(including without limitation, diminution in the value of the Premises, the
Building, or the Property, damages for the loss or restriction on use of
rentable or useable space or of any amenity of the Premises, the Building, or
the Property), costs or expenses (including attorney fees, consultant fees, and
expert fees) for the death of or injury to any person or damages to any property
whatsoever, arising from or caused in whole or in part, directly or indirectly,
by (A) the release or discharge by Tenant or any of its Affiliates in, on,
under, or about the Premises,
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the Building, or the Property, of any Hazardous Substances or Tenant's use,
analysis, storage, transportation, disposal, release, threatened release,
discharge, or generation of Hazardous Substances to, in, on, under, about, or
from the Premises, the Building, or the Property, or (B) Tenant's failure to
comply with any Hazardous Substances Law. Tenant's obligations under this
Section 13.19.2 shall include, without limitation, and whether foreseeable or
unforeseeable, any and all costs incurred in connection with any investigation
of site conditions, and any and all costs of any required or necessary repair,
cleanup, detoxification, or decontamination of the Premises, the Buildings or
the Property (including without limitation. the soil and ground water on or
under the Property), and the preparation and implementation of any closure,
remedial action, or other require plans in connection therewith. Tenant's
obligations under this Section 13.19.2 shall survive the expiration or earlier
termination of the term of the Lease. For purposes of the release and indemnity
provisions hereof, any acts or omissions of Tenant, or by employees, agents,
assignees, contractors, or subcontractors of Tenant or others acting for or on
behalf of Tenant (whether or not they are negligent, intentional, willful, or
unlawful), shall be strictly attributable to Tenant.
13.19.3 INDEMNIFICATION OF TENANT. Landlord shall
indemnify, defend (by counsel reasonably acceptable to Tenant), protect, and
hold harmless Tenant, and each of Tenant's partners, directors, officers,
employees, agents, attorney, successors, and assigns, from and against any and
all claims, liabilities, penalties, fines, judgements forfeitures, losses, costs
or expenses (including attorney fees, consultant fees, and expert fees) for the
death of or injury to any person or damages to any property whatsoever, arising
from or caused in whole or in part, directly or indirectly, by the presence
prior to Tenant's taking of possession of the Premises or the release or
discharge by Landlord in, on, under, or about the Premises, the Building, or the
Property, of any Hazardous Substances or Landlord's use, analysis, storage,
transportation, disposal, release, threatened release, discharge, or generation
of Hazardous Substances to, in, on, under, about, or from the Premises, the
Building, or the Property, or Landlord's failure to comply with any Hazardous
Substances Law. For purposes of the release and indemnity provisions hereof, any
acts or omissions of Landlord, or by employees, agents, assignees, contractors,
or subcontractors of Landlord or others acting for or on behalf of Landlord
(whether or not they are negligent, intentional, willful, or unlawful), shall be
strictly attributable to Landlord.
Tenant acknowledges having received certain environmental reports from Landlord
with respect to the Building, the Premises and the Land as prepared by GZA, Inc.
and Environmental Solutions; to the best of Landlord's knowledge, except as
disclosed in such environmental reports, there exist no Hazardous Substances in,
on or under the Premises or the Land. To the best of Landlord's knowledge there
are no material inaccuracies in such reports, but Landlord assumes no
responsibility for the accuracy, reliability or completeness of such reports and
Tenant assumes all risk in connection with the review and use thereof. Landlord
represents to Tenant that the reports as delivered to Tenant are complete and
true copies of the documents as received by Landlord. Landlord hereby agrees
that if any pre-existing asbestos not already disclosed to Tenant is discovered
anywhere in the Building, the Premises or the Land, and if the condition of
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such asbestos requires remediation of some kind under the applicable law, then
Landlord shall arrange for such remediation and shall pay the full cost of such
remediation. However, Landlord's remediation and payment obligations under this
paragraph shall be waived if remediation would not have been required but for
the performance of building improvements by Tenant on the Building or the area
at issue, or if due to actions taken by Tenant or its employees, agents,
contractors, invitees or representatives on the Premises.
13.19.4 WITHHOLDING CONSENT TO PROPOSED TRANSFEREES.
Tenant acknowledges and agrees that it shall not be unreasonable for Landlord to
withhold its consent to any proposed assignment, subletting, or transfer of
Tenant's interest in this Lease if the anticipated use of the Premises by the
proposed assignee, subtenant, or transferee (collectively, a "Transferee")
involves the generation, storage, use, treatment, or disposal of Hazardous
Substances; and (i) the proposed Transferee has been required to take remedial
action in connection with Hazardous Substances contaminating a property, if the
contamination resulted from such Transferee's actions or use of the property in
question; or (ii) the proposed Transferee is subject to an enforcement order
issued by any governmental authority in connection with the use, disposal, or
storage of a Hazardous Substance. Any Affiliate of Tenant shall be permitted to
make such use of the Premises if it does not fall under clauses (i) or (ii)
above and as long as such anticipated use is limited to no more than twenty
percent (20%) of the Total Rentable Floor Area of the Premises, and such use is
undertaken in full compliance with all applicable licenses, laws, regulations
and other governing rules, and both Tenant and the Affiliate fully and
unconditionally indemnify Landlord and hold Landlord harmless from and against
any and all cost, expenses, liabilities and damages which result directly or
indirectly from such use, as well as any consequential damages which may result
therefrom. Additionally, if Tenant or an Affiliate undertakes such a use of any
part of the Premises and if at any time while such use is ongoing Tenant's net
worth drops below $100,000,000.00, then at Landlord's request Tenant shall
purchase at its expense insurance in an amount of no less than $2,000,000.00
insuring Landlord against any loss caused by the presence of Hazardous
Substances on the Premises.
13.19.5 ADDITIONAL INSURANCE OR FINANCIAL CAPACITY.
If Tenant or its Affiliate is permitted to conduct the use described in Section
13.19.4 (i) and at any time it reasonably appears to Landlord that Tenant is not
maintaining sufficient insurance or other means of financial capacity to enable
Tenant to fulfill its obligations to Landlord under this Section 13.19.5,
whether or not then accrued, liquidated, conditional, or in contingent, Tenant
shall procure and thereafter maintain in full force and effect such insurance or
other form of financial assurance, with companies or persons and in forms
reasonably acceptable to Landlord, as Landlord may from time to time reasonably
request
13.20 GOVERNING LAW. This Lease shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
13.21 ACCESS TO PREMISES. The Landlord or the Landlord's agents
shall have the right to enter the Premises at all reasonable times throughout
the term hereof, to examine the same, and to show them to prospective purchasers
or lenders of the Building
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and to make such repairs as the Landlord may deem necessary or desirable,
provided that Landlord shall give Tenant reasonable notice other than in
emergency circumstances and, provided, further that such entry shall not
unreasonably interfere with normal business operations of Tenant. Landlord shall
have the same right of access as is set forth above during the last twelve
months of the Term hereof or of any extension of said Term for the purpose of
showing the Premises to possible future tenants or to real estate brokers.
13.22 SAFETY APPLIANCES. Tenant shall keep the Premises equipped
with all safety appliances and permits which, as a result of Tenant's particular
activities, are required by law or ordinance or by an order or regulation of any
public authority or are reasonably require by Landlord, shall keep the Premises
equipped at all times with adequate fire extinguishers, and, shall make all
repairs, alterations, replacements, or additions so required as a result of
Tenant's particular activities.
13.23 NO AGREEMENT UNTIL SIGNED. The submission of this Lease or a
summary of some or all of its provisions for examination does not constitute a
reservation of or option for the Premises or an offer to lease, and no legal
obligations shall arise with respect to the Premises or other matters herein
until this Lease is executed and delivered by Landlord and Tenant.
13.24 SIGNAGE. Any signage which Tenant may be permitted to place on
the interior and exterior of the Building or elsewhere on the Property shall be
governed by the terms of Exhibit D hereto.
13.25 AUTHORITY OF PARTIES. Landlord and Tenant each warrant to the
other that the person or persons executing this Lease on behalf of the Landlord
or Tenant, as the case may be, has authority to do so fully obligate Landlord or
Tenant, as the case may be, to all terms and provisions of this Lease. If
Landlord or Tenant is a corporation, each warrants that it has legal authority
to operate and is authorized to do business in the Commonwealth of
Massachusetts.
13.26 CAFETERIA. Landlord hereby consents to Tenant's operating a
cafeteria for the benefit of its employees, patrons and business visitors in the
space in the Building currently laid out for such use, and Landlord further
consents to Tenant's use of all equipment currently located in the cafeteria
area. Landlord makes no representations hereunder as to the fitness of such
cafeteria equipment for use nor as to the right to operate a cafeteria in the
Building. Tenant will be solely responsible for the establishment, licensing,
contracting and ongoing operations of said cafeteria and for all related costs
and expenses. To the extent that the cafeteria's kitchen and counter areas
(i.e., the area with stoves, sinks, and the like) are included within the
rentable square footage of the Premises, and if despite its good faith efforts
Tenant is unable to obtain all necessary permits for the operation of this area
as a cafeteria within the current space limitations and the Tenant does not
otherwise use said area, then such cafeteria kitchen and counter areas should be
excluded from the Premises and the appropriate rent adjustment should be made.
However, Landlord shall have the discretion, but not the obligation, to remove
any or all of such counters, stoves, sinks and other equipment so
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that the space at issue can be readily adapted for office use, whereupon there
will be no rental adjustment for the space so cleared.
13.27 OLD LEASE. Tenant acknowledges that it is aware that the
Premises are subject to a current lease with Healthplan Services, Inc. and that
Healthplan Services, Inc. has agreed to yield up its lease, at or prior to the
Tenant's entry permitted under Section 4.1 above, so that this Lease between
Landlord and Tenant would govern the use of the Premises.
XIV. EXTENSION OPTION
14.1 FIVE YEAR EXTENSION. The Tenant shall have the right to extend
the term hereof by one additional five (5) year term ("the Renewal Term") by so
notifying Landlord in writing by no later than twelve (12) months prior to the
Term Expiration Date; however, Tenant's option to extend will be void at
Landlord's option if Tenant is in default beyond any applicable notice, grace or
cure period orif Tenant and/or Tenant's Affiliates are not in possession of at
least eighty percent (80%) of the Total Rentable Floor Area of the Premises
either at the time the Tenant elects to extend the Term or at the time the
original Term would expire. Such Renewal Term shall apply to the entire Premises
and shall be subject to all the terms and conditions of this Lease as in effect
during the original seven year term hereof, except that during the Renewal Term
(Lease Years 8 through 13), the Annual Fixed Rent shall be set at ninety-five
percent (95%) of the prevailing fair market rents as of the date which is twelve
months prior to the Term Expiration Date, which 95% shall in no event be less
than the Annual Fixed Rent due in year 7 of the Lease. In determining fair
market rent, the parties and their arbitrators shall take the then condition of
the Building into account, but shall not consider any specialty laboratory or
similar special non-office space built out by Tenant at its expense, but rather
shall treat such areas as if Tenant restored them to open-floor office space.
Landlord shall notify Tenant of its estimate of the prevailing fair market rent
within thirty (30) business days after the Tenant exercises the Renewal Term
option. Tenant shall have the option, within twenty (20) business days of the
Landlord's notice, to accept the Landlord's estimate, to reject Landlord's
estimate and request arbitration or to withdraw its exercise of the extension
option. Failure by the Tenant to respond to the Landlord's notice within the
twenty (20) business day period shall be deemed an acceptance of the Landlord's
estimate. In the event Tenant rejects Landlord's estimate, then the prevailing
fair market rent shall be arbitrated in accordance with the following procedure.
The parties within ten (10) days after Tenant's rejection of Landlord's estimate
shall each identify an impartial third party to serve as an arbitrator and these
two arbitrators shall seek to identify one mutually acceptable impartial third
party to serve as the third arbitrator. If either party has not designated its
arbitrator to the other in a timely fashion, then the determination of the other
party's arbitrator shall be final. All such arbitrators shall be commercial real
estate brokers, having current and at least fifteen (15) years' prior experience
in appraising first class office space in the "Metro-West" area. If the two
arbitrators are unable to agree upon a third arbitrator within ten (10) days,
the third
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arbitrator shall be selected by J.A.M.S/ENDISPUTE, or any successor entity. If
neither J.A.M.S/ENDISPUTE nor any successor entity exists at the time of the
dispute, the third arbitrator shall be selected by the American Arbitration
Association ("AAA") or any successor entity. If neither AAA nor any successor
exists at the time of the dispute, the third arbitrator shall be selected by the
largest private provider of dispute resolution services then doing business in
the Greater Boston area. Within thirty (30) days after the parties are notified
as to the identity of the third arbitrator, each of the three arbitrators shall
submit its final determination of the prevailing market rate (the "Final Rent
Determination") to the other arbitrators. The two Final Rent Determinations
which are closest to each other shall be averaged and this average shall be
designated as the prevailing market rate. If the highest and lowest Final Rent
Determinations are equally close to the middle Final Rent Determination then the
middle one shall be designated as the prevailing market rate. If one of the
arbitrators has not submitted its Final Rent Determination to the other
arbitrators within the time limits set forth herein, the other arbitrators will
designate the average of their Final Rent Determinations as the prevailing
market rent. The arbitrators shall notify the parties of their decision in
writing within such thirty (30) day period. All costs incurred for the services
of the arbitrator shall be borne equally by the parties. The prevailing market
rate as designated by the arbitrator shall be final and binding and the parties
shall have no further recourse to such determination.
Promptly after rent is determined for the Renewal Term, Landlord and Tenant
shall enter into an amendment of this Lease confirming the extension of the Term
and the new rate for rent.
XV. CONDITION OF PREMISES AND
CONSTRUCTION OF LEASEHOLD IMPROVEMENTS
15.1 AS IS CONDITION. Tenant accepts the Premises and the Building
in their present "as is" condition, without representation or warranty, express
or implied, in fact or in law, by Landlord except as expressly provided herein
and without recourse to Landlord as to the nature, condition or usability
thereof, and Tenant agrees that Landlord has no work to perform in or on the
Premises to prepare the Premises for Tenant's occupancy, and that any and all
work, other than those capital improvements described in Exhibit F or required
to be performed by Landlord as Capital Expenditures in the first twelve months
as described in Section 9.1 hereof, to be done in or on the Premises will be
performed by Tenant at Tenant's sole cost and expense in accordance with the
terms of this Lease. Notwithstanding the foregoing, Landlord agrees to deliver
the Premises to Tenant vacant and in broom clean condition with all building
systems, roof, structure, exterior parking areas and walkways in good working
order and all exterior windows and walls in waterproof weather-tight condition.
15.2 TENANT IMPROVEMENTS. Tenant shall be responsible, at its sole
cost and expense, for the performance of all work, if any, necessary to prepare
the Premises for Tenant's occupancy, which work is currently anticipated to
consist solely of ordinary
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office tenant fit-out work (the "Tenant Improvements"). If Tenant's preparation
of the space for its usage necessitates a higher electrical capacity than is
customary for office use, the provision of such additional capacity shall be
undertaken by Tenant at Tenant's sole cost. Tenant agrees that the construction
of Tenant Improvements and the Tenant's use of the Premises may not overburden
the capacity of the Building's existing plumbing, mechanical, electrical,
elevator or sewage systems unless Tenant agrees to be responsible for the cost
of such expenditures. Tenant shall complete the Tenant Improvements
substantially in accordance with plans and specifications prepared by it,
submitted to Landlord and Landlord's current tenant, Health Plan Services, Inc.,
and is approved by Landlord and the aforesaid current tenant (such approval not
to be unreasonably withheld or delayed). Tenant shall complete the Tenant
Improvements in accordance with all applicable laws and with all applicable
requirements of this Lease relating to alterations; and such work shall only be
performed by contractors and subcontractors who have been approved in writing by
Landlord, such approval not to be unreasonably withheld. It shall be solely the
responsibility of Tenant to cause the Premises to comply with the Americans with
Disabilities Act ("ADA") and any other state or local laws, ordinances or
regulations relating thereto, except as otherwise expressly provided in Exhibit
F or elsewhere in this Lease. Any such alterations or modifications to the
Premises shall be performed by Tenant at its sole cost and expense, except as
set forth in Section 15.4 hereof.
15.3 DELIVERY DATE. During the period from and after the date on
which Landlord delivers the Premises to Tenant ("Delivery Date"), until the Term
Commencement Date, the Tenant shall have the right to enter and make use of the
Premises solely for the purpose of constructing the Tenant Improvements and
fitting out the Premises with its personal property and equipment, and not for
the conduct of business or operations, provided that during the period after the
Delivery Date, Tenant shall pay, perform and observe all its covenants and
obligations under this Lease (including, in particular, having liability and
other insurance policies in effect as herein required), except only that no
rental payments shall be due the Landlord for such period prior to the Lease
Commencement Date. Landlord shall notify Tenant when Premises are or expected to
be available for the purposes of this paragraph and the Delivery Date shall be
no less than five (5) days after Tenant's receipt of such notice.
15.4 REIMBURSEMENT. Landlord will reimburse Tenant for the cost of
Tenant Improvements in an amount up to, but not to exceed, the Expense
Reimbursement Amount specified in Section 1.1 above within thirty (30) days
after Landlord receives copies of invoices and receipts of payment from Tenant,
but in no event before January 1, 1999, and the Tenant's execution and delivery
to Landlord of the Commencement Letter attached hereto as Exhibit G. The Expense
Reimbursement shall be applied towards the cost of the following matters related
to the performance of the Tenant Improvements; material used and labor costs
incurred in construction, architectural and engineering planning, space planning
and construction services
15.5 LANDLORD'S REPRESENTATIONS. To the best of Landlord's
knowledge, the operating systems of the Building will not be subject to
interruption nor
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will they fail to operate properly due to the inability of any computer guided
system to recognize the year 2000 as a regular operating year of the Building.
To the best of Landlord's knowledge there are no new material matters on record
since March 28, 1996, which would adversely and substantially interfere with
Tenant's anticipated use of the Premises under this Lease. Landlord represents
that under applicable zoning laws, it is lawful to use the Building for general
business office use.
Landlord represents that, to the best of its knowledge, it has
delivered to Tenant true, correct and complete copies of the following plans,
reports, studies and records of the Building in Landlord's possession:
1. Environmental Reports referred to in Section 13.19.3;
2. Site Plan;
3. Internal air quality reports;
4. Lists of chemicals, fertilizers, pesticides, etc. used in lawn
maintenance programs;
5. Letter regarding floor load calculations; and
6. Floor plans of the Building and certain other architectural and
engineering documents.
To the best of Landlord's knowledge, except as disclosed in this Lease, the
aforesaid reports, plans, studies and records and/or in the several due
diligence inspection reports of the Building prepared for Tenant by Genzyme's
Health, Safety and Environmental Group, by CID Associates, Inc. and BR&A, there
exist no conditions that materially adversely affect the utility of this
Building, Premises or the Land for occupancy by Tenant under this Lease.
Landlord assumes no responsibility for the accuracy, completeness or reliability
of any of the aforesaid plans, reports, studies and records, and Tenant assumes
all risk in connection with the review and use thereof.
15.6 COOPERATION. Landlord agrees that it shall, at Tenant's
expense, cooperate with, support, consult with, and provide information in its
possession to Tenant in seeking, applying for and obtaining any and all
consents, permits, licenses, certificates, waivers, special permits, approvals
and the like required, or deemed necessary or appropriate by Tenant, in
connection with (a) Tenant's use and occupancy of the Premises for the Permitted
Use and/or (b) Tenant's exercise of its rights and/or performance of its
obligations under this Lease. Landlord agrees that such cooperation shall
include, without limitation, the co-signing of applications; the providing of
support and information that can reasonably be made available by the record
owner of the Premises but not by other parties; providing letters of support or
other supporting information or evidence for submission to hearings or
proceedings before any zoning,
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planning, land use, or regulatory board or authority, or any license or
permit-granting or permitting office board or authority
XVI. PARKING
16.1 PARKING. On and after Term Commencement Date Landlord agrees
to provide (without additional rent or charge to Tenant) automobile parking in
parking areas serving the Building for the benefit and use of customers and
employees of Tenant. Whenever the words "automobile parking areas" are used in
this Lease, it is intended that the same shall include, whether in a surface
parking area or parking structure, the automobile stalls, driveways, entrances,
exits, sidewalks, landscaped areas, pedestrian passageways in conjunction
therewith and other areas designated for parking as approximately shown on the
Site Plan and subsequently restriped and expanded as described in the definition
of Building set forth in Section 1.1.. Landlord shall keep the automobile
parking area neat, clean and in good repair, properly lighted and landscaped,
ordinary wear and tear excepted. Nothing contained herein shall be deemed to
create liability upon Landlord for any damage to motor vehicles of customers and
employees or from loss of property from within such motor vehicles, unless
caused by the gross negligence or reckless or willful misconduct of Landlord,
its agents, servants, and employees. Landlord shall have the right to establish
and enforce against all users of the automobile parking area, such reasonable
rules and regulations as may be deemed necessary and advisable for the proper
and efficient operation and maintenance of the automobile parking area; however,
to the extent that particular rules and regulations are not for the purpose of
protecting Landlord's interest in the Premises or of addressing the reasonable
concerns of abutters or of responding to any instructions from public
authorities, the Tenant shall have a right of approval of the parking area rules
and regulations, which approval may not unreasonably be withheld, delayed or
conditioned.
Landlord shall at all times during the term hereof have the sole and
exclusive control of the automobile parking areas, and may at any time during
the term hereof exclude and restrain any person from use thereof, excepting,
however, Tenant and its employees, bonafide customers, patrons and service
suppliers of Tenant.
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IN WITNESS THEREOF, Landlord and Tenant have caused this Lease to be
duly executed, under seal, by persons hereunto duly authorized, in multiple
copies, each of which is to be considered as an original, as of the Execution
Date stated herein.
Dated this 12th day of November, 1998. ("Execution Date").
LANDLORD TENANT
Consolidated Group Service Genzyme Corporation
Company Limited Partnership
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxx
------------------------------ --------------------------------
Xxxxxxx Xxxxxxx Xxxx X. Xxxxxx
President Vice President and Treasurer
Hereunto Duly Authorized Hereunto Duly Authorized
November 13, 1998 November 12, 1998
---------------------------------- ------------------------------------
Date Signed Date Signed
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EXHIBIT A
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FLOOR PLAN OF THE PREMISES
ATTACHED
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EXHIBIT B
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RULES AND REGULATIONS
The following Rules and Regulations constitute a part of the Lease and of
Tenant's obligations thereunder in respect of Tenant's use and occupancy of
the Premises in the Building.
I. BUILDING HOURS
1.1 Tenant's access to the Building shall be as provided in
Section 7.3 of the Lease.
1.2 Building security shall be installed and administered by
Tenant; however, Tenant's proposed security system shall be subject to Landlord
approval prior to installation, and said approval shall not be unreasonably
withheld by Landlord. Pass cards and other devices necessary for access to all
parts of the Premises shall be made available to Landlord by Tenant.
1.3 You are advised, for the protection and safety of your
personnel, to lock front doors at the end of each working day. Front doors
should also be locked whenever your receptionist leaves the area.
II. ELEVATORS, DELIVERIES AND PARKING
2.1 If you expect delivery of any bulky material, notify the
Building Management Office reasonably in advance so that elevators may be
scheduled and elevator pads may be installed. This protects both your shipment
and the elevators.
2.2 All larger deliveries must be made from the designated
Building loading dock area. The receiving area can accommodate only certain
types and sizes of vehicles. All hand trucks used for interior deliveries must
be equipped with rubber bumpers and tires.
2.3 The loading dock may be used only for deliveries. No vehicles
are allowed to stand or park in this area after unloading nor are vehicles
allowed to park at the loading dock for service calls. You should advise your
vendors and suppliers of this rule. Any vehicle abusing the truck dock
privileges are subject to being towed at the vehicle owner's expense.
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III. GENERAL USE OF BUILDING AND PREMISES
3.1 Property may not be placed or stored on the sidewalks,
passageway, parking areas or courtyards adjacent to the Building or in the
elevators, vestibules, stairways, or corridors (except as may be necessary for
brief periods during deliveries).
3.2 No animals may be brought into or kept in or about the
Building premises except if kept in cages.
3.3 Rubbish, rags, sweepings, acid and any and all harmful or
damaging substances may not be deposited in the lavatories or in the janitor
closets.
IV. FLOOR LOAD - HEAVY MACHINERY
4.1 You may not place a load upon any floor in the Premises or
Building exceeding the floor load which that section of floor was designed to
carry and which is allowed by law. Landlord reserves the right to prescribe the
weight and position of all business machines and mechanical equipment, including
safes, all of which shall be so placed as to distribute the weight. You shall
place and maintain your business machines and mechanical equipment in setting
sufficient to absorb and prevent vibration, noise and annoyance. You may not
move any safe, heavy machinery, heavy equipment, freight, bulky matter or
fixtures into or out of the Building without notice to Landlord. Notwithstanding
the foregoing, proper placement of all such business machines, etc., in the
Premises shall be your responsibility as Tenant.
4.2 If any such safe, machinery, equipment, freight, bulky matter
or fixtures requires special handling, you must employ only persons holding a
Master Rigger's license to do such work; and all work in connection therewith
must comply with applicable laws and regulations. Any such moving shall be at
your sole risk and hazard and you, as Tenant, will defend, exonerate, indemnify
and save Landlord harmless against and from any liability, loss, injury claim or
suit resulting directly or indirectly from such moving.
V. ELECTRICAL SYSTEM: ENERGY CONSERVATION: WATER
5.1 Notwithstanding anything to the contrary contained in the
Lease, Landlord reserves the right to implement policies and procedures it
deems, in its reasonable judgment, to be necessary or required in order to
comply with applicable government laws, rules, regulations, codes, orders and
standards.
VI. SIGNS AND ADVERTISING
6.1 Except as provided in Section 13.24 of the Lease, you may not
place on the exterior surfaces of the Premises without Landlord's express
consent, not to be unreasonably withheld, including both interior
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and exterior surfaces or doors and interior surfaces of windows, or on any part
of the Building outside the Premises, any signs, symbol, advertisement or the
like visible to public view outside of the Premises.
VII. EXTRA HAZARDOUS AND PROHIBITED USES
7.1 PROHIBITED USES. Notwithstanding any other provision of the
Lease, you may not use, or permit the use or occupancy of, the Premises or the
Building, or permit any act or practice to be done or anything to be brought
into or kept in or about the Premises or the Building or any part thereof: (i)
which would violate any of the covenants, agreements, terms, provisions and
conditions or the Lease or such other covenants, agreements, terms, provisions
and conditions otherwise applicable to or binding upon the Premises; (ii) for
any unlawful purposes or in any unlawful manner; (iii) which, in the reasonable
judgment of Landlord shall in any way (a) adversely affect the appearance of the
Building as a first-class office building, (b) adversely affect, directly or
indirectly any building services, or (c) cause any offensive odors or loud
noises or constitute a nuisance or a menace to any others outside the Building.
Without intending to limit the general applicability of the foregoing and other
than as permitted under Section 13.26 hereof, you may not use or permit the use
of any part of the Premises for the preparation or dispensing of food. You may,
nevertheless, install hot-cold water fountains, coffee makers and
refrigerator-sink-stove combinations for the preparation of beverages and foods,
provided that no cooking, frying, etc., are carried on that require special
exhaust venting. The Building contains no facilities to provide special venting.
VIII. LIFE SAFETY AND EMERGENCY PROCEDURES
8.1 In case of emergency situations such as power failure, water
leaks or serious injury, call the Building Management Office immediately. In
case of fire or smoke, pull the nearest alarm (located on your floor) and then
call the Building Management Office.
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EXHIBIT C
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SCHEDULE OF CLEANING SERVICE
Lessor shall provide at the Lessor's expense all labor, supervision, materials
and equipment for the satisfactory performance of the following services:
I. Daily Services
1. Empty waste receptacles.
2. Damp mop, or sweep with a chemically treated dust mop, all
uncarpeted areas. Vacuum all carpeted areas.
3. Spot clean carpets, wall surfaces, and other partition glass
as necessary.
4. Wash and polish all entrance glass doors.
5. Spray buff (buffing over a light spray of a mixture of
detergent and floor finish) uncarpeted floors in reception
area, lunchroom and corridors.
6. Damp clean all bright work.
7. Remove and dispose of all trash (wet and dry).
II. Weekly Services
1. Dust window ledges.
2. Dust tops of office furniture, furnishings, files, cabinets,
radiators, convectors, and baseboards.
III. Monthly Services
1. Machine buff all uncarpeted floors.
2. Deep vacuum (pile lifting) all carpeted areas.
IV. Every Three-Month Services
1. Wash baseboards, window xxxxx and remove smudges and marks
from radiators and convectors whenever possible.
2. Wash all interior windows and glass in private offices and
enclosures inside and out.
3. Vacuum drapes.
4. Vacuum ceiling diffusers.
5. Strip and refinish all uncarpeted (resilient tile) floors.
V. Toilet Rooms
1. Daily Services:
a. Empty all waste receptacles.
b. Sweep and wet mop floors.
c. Clean and disinfect all fixtures.
d. Polish mirrors.
e. Clean shelves, tops of tile edges and dispensers.
f. Refill paper towel, toilet paper and soap dispensers.
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2. Weekly Services:
a. Wash toilet partitions
b. Wash and disinfect all ceramic tile, fixtures and
waste receptacles.
VI. Shampooing of Carpets
1. Twice a year shampoo all high traffic areas such as
hallways.
2. All other carpets are to be shampooed once a year.
VII Cleaning of perimeter induction unit drain pans throughout the Building
and the exterior air intake areaways shall be performed in accordance
with a periodic schedule reasonably acceptable to Landlord and Tenant.
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EXHIBIT D
SIGNAGE CRITERIA AND RESTRICTIONS
Tenant will not erect any signs except in conformity with both (i) applicable
sign by-laws and codes and (ii) sign plans specifically approved in writing by
Landlord, such approval not to be unreasonably withheld. In event of a conflict
between the requirements of the by-laws or codes and the approved signage, the
more restrictive requirements shall control.
(a) Wording on large-scale signs shall be limited to business name
only. All signs shall be drawn up by Tenant and submitted to Landlord for
approval prior to fabrication.
(b) Signs with exposed neon tubing or exposed lamps and signs of
the flashing, blinking, rotating, moving or animated types are not permitted.
(c) Public safety decals or artwork on glass in minimum sizes to
comply with applicable Code, subject to the approval of Landlord, may be used,
as required by building codes or other governmental regulations.
Tenant will be permitted, subject to Landlord's approval which is not to be
unreasonably withheld, to install exterior signage on the Building in accordance
with applicable sign by-laws, and Landlord agrees to cooperate with Tenant, if
so requested, to apply for such signage. Such agreement to cooperate shall in no
event require the expenditure of money by Landlord.
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EXHIBIT E
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BASE YEAR OPERATING EXPENSES BUDGET
ATTACHED
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EXHIBIT F
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REQUIRED CAPITAL IMPROVEMENTS
ATTACHED
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Management Services shall include the following:
Management Fee
Salary, benefits and other direct and indirect costs of on-site
building management.
Direct and indirect costs of all labor providing services for the
operation, maintenance and management of the Premises.
All direct and indirect administrative costs of Landlord in operating,
maintaining and managing the Premises.
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