EXHIBIT 10.17
OFFICE LEASE
THE CAMPUS AT MARLBOROUGH
by and between
MARLBOROUGH CAMPUS LIMITED PARTNERSHIP
as landlord
and
CYTYC CORPORATION,
as tenant
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THE CAMPUS AT MARLBOROUGH
OFFICE LEASE
This Office Lease (the "LEASE"), dated as of the date set forth in SECTION 1 of
the Summary of Basic Lease Information (the "SUMMARY"), below, is made by and
between MARLBOROUGH CAMPUS LIMITED PARTNERSHIP, a Massachusetts limited
partnership ("LANDLORD"), and CYTYC CORPORATION, a Delaware corporation
("TENANT").
SUMMARY OF BASIC LEASE INFORMATION
TERMS OF LEASE DESCRIPTION
1. Effective Date: ____________, 200__
2. Premises
(Article 1)
2.1 Building: That certain three-story building
located at 000 Xxxxxx Xxxxx, The Campus
at Marlborough, Marlborough,
Massachusetts in the "Project," commonly
referred to in the Project as "BUILDING
3" and referred to herein as the
"BUILDING" or as "BUILDING 3".
2.2 Premises: Building 3, which contains 216,218
rentable square feet of space.
2.3 Project: The Building is part of that certain
building Project (the "PROJECT") known
as The Campus at Marlborough, consisting
of four (4) buildings comprising
approximately 530,895 rentable square
feet of space, and other improvements,
as depicted on EXHIBIT B, and located on
the land described in EXHIBIT J.
3. Lease Term
(Article 2)
3.1 Initial Term: The fifteen year period commencing as of
the Lease Commencement Date and ending
as of the Lease Expiration Date.
Lease Commencement Date: January 1, 2004
3.3 Rent Commencement Date:
RENTABLE AREA LOCATION RENT COMMENCEMENT DATE*
Space A 29,832 RSF** Building 3, January 1, 2004
Floor3 South
Space B 35,168 RSF** Building 3 October 1, 2004
Space C 77,229 RSF** Building 3 February 1, 2005
Space D 73,989 RSF** Building 3 June 1, 2006
*or such earlier date as shall be required pursuant to SECTION 14.5.
** Space A is shown on Exhibit B attached hereto. Space B, Space C and
Space D refer to a number of RSF and not to a particular area within the
Building. Space A, Space B, Space C and Space D are sometimes referred to
as a "SPACE" or as a "PORTION OF THE PREMISES".
3.4 Lease Expiration Date: 11:59 p.m. EST on December 31, 2018,
unless sooner terminated pursuant to the
provisions hereof.
3.5 Option(s) to Extend Two options to extend for five years
each, as more particularly set forth in
SECTION 2.2.
4. Base Rent (Article 3):
4.1 Base Rent During Initial Term:
Annual Monthly Installment
Period Base Rent of Base Rent
-------------------- -------------------- --------------------
1/1/04-9/30/04 $ 417,648 $ 34,804
10/1/04-12/31/04 $ 910,000 $ 75,833
1/1/05-1/31/05 $ 975,000 $ 81,250
2/1/05-6/30/05 $ 2,133,435 $ 177,786
7/1/05-5/31/06 $ 2,365,268 $ 197,106
6/1/06-6/30/09 $ 3,595,705 $ 299,642
7/1/09-6/30/11 $ 3,675,706 $ 306,309
7/1/11-6/30/13 $ 3,783,815 $ 315,318
7/1/13-12/31/18 $ 3,891,924 $ 324,327
4.2 Base Rent During Option 95% of the prevailing market rental
Term(s): rate, as more particularly set forth in
SECTION 3.1.1.
5. Intentionally omitted
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6. 6.1 Tenant's Share (of Project) Initially 5.62%;
(Article 4):
12.24% from October 1, 2004 through
December 31, 2004 (subject to increase
during 2004 as follows: If the Tenant
occupies more than 29,832 RSF in the
Building at any time between January 1,
2004 and September 30, 2004, and/or more
than 65,000 RSF in the Building at any
time between October 1, 2004 and
December 31, 2004, Tenant's Share shall
be increased to reflect such additional
square footage on said earlier date);
12.24% from January 1, 2005 through
January 31, 2005 (regardless of the
percentage of space actually occupied);
26.79% from February 1, 2005 through May
31, 2006 (regardless of the percentage
of space actually occupied); and
40.73% as of June 1, 2006.
Tenant's Share is subject to the
provisions of this Lease, including
without limitation, SECTION 29.32.1,
below.
6.2 Tenant's Building Share: Initially 13.80%;
30.06% from October 1, 2004 through
December 31, 2004 (subject to increase
during 2004 as follows: If the Tenant
occupies more than 29,832 RSF in the
Building at any time between January 1,
2004 and September 30, 2004, and/or more
than 65,000 RSF in the Building at any
time between October 1, 2004 and
December 31, 2004, Tenant's Share shall
be increased to reflect such additional
square footage on said earlier date);
30.06% from January 1, 2005 through
January 31, 2005 (regardless of the
percentage of space actually occupied);
65.78% from February 1, 2005 through May
31, 2006 (regardless of the percentage
of space actually occupied); and
100% as of June 1, 2006.
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7. Permitted Use Any lawful use other than a Prohibited
(Article 5): Use (as defined in Article 5), subject
to the TCC of this Lease.
8. Security Deposit $5,000,000, subject to reduction in
(Article 21): accordance with SECTION 21.3 of this
Lease.
9. Parking 580 spaces as set forth in Article 28 of
(Article 28): this Lease.
10. Address of Tenant See SECTION 29.16 of this Lease.
(Section 29.16):
11. Address of Landlord See SECTION 29.16 of this Lease.
(Section 29.16):
12. Broker(s) Xxxxxxx & Xxxxxxxxx of
Massachusetts,
(Section 29.22): Inc. and LPC Commercial Services, Inc.
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ARTICLE 1
PREMISES, BUILDING, PROJECT, AND COMMON AREAS
1.1 THE PREMISES. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the premises set forth in SECTION 2.2 of the Summary (the
"PREMISES") and shown on EXHIBIT A, attached hereto. For purposes of SECTIONS
6.1 AND 6.2 of the Summary and SECTIONS 3.1, 4.7 AND 14.4.1 of this Lease, the
parties have agreed that the Building shall be deemed to include four portions
of space referred to as Space A, "SPACE B", "SPACE C" and "SPACE D", each of
which is sometimes referred to as a "SPACE" or as a "PORTION OF THE PREMISES".
Space B, Space C and Space D refer to a number of RSF and not to a particular
area within the Building. The parties have agreed that Space B will be deemed to
consist of 35,168 RSF, Space C will be deemed to consist of 77,229 RSF, and
Space D will be deemed to consist of 73,989 RSF. Tenant currently has access to
Space A pursuant to the Prior Lease (as defined in ARTICLE 34, below), and
commencing on the Effective Date, Tenant shall also have access to the entire
Premises. Tenant shall give Landlord advance written notice if Tenant intends to
occupy or to commence business operations (i) in any portion of the Building
other than Space A prior to October 1, 2004, and/or (ii) in more than 65,000 RSF
of space in the Building prior to December 31, 2004, stating in any such case,
the number of square feet, the location of such space and the date of which
Tenant intends to occupy or to commence such business operations. Landlord shall
have the right to monitor Tenant's use of the Premises prior to December 31,
2004 to determine whether Tenant has occupied or commenced business operations
in any Portion of the Premises other than Space A prior to October 1, 2004,
and/or in more than 65,000 RSF prior to December 31, 2004. In the event that
Landlord believes that Tenant has commenced business operations in any of such
Space prior to January 1, 2005, Landlord shall give written notice to Tenant,
and if such commencement of business operations was inadvertent and the result
of fewer than five employees utilizing such space on an impromptu basis (without
the installation of telecommunications and/or other office equipment or
devices), contrary to the Tenant's management decision, then, provided that
Landlord has not given Tenant written notice of such an event two or more times
in the prior twelve (12) month period and that Tenant vacates such space and
ceases business operations therein within two (2) business days after receipt of
Landlord's notice, Tenant shall be deemed not to have commenced business
operations by reason of such inadvertent action.
The Premises and the Building shall be deemed to be the number of rentable
square feet as set forth in SECTION 2.2 of the Summary, and neither party shall
have the right to remeasure the Premises. The parties hereto agree that this
Lease is upon and subject to the terms, covenants and conditions (the "TCCs")
herein set forth, and Landlord and Tenant covenant as a material part of the
consideration for this Lease to keep and perform each and all of such terms,
covenants and conditions by it to be kept and performed and that this Lease is
made upon the condition of such performance. Tenant also acknowledges that
neither Landlord nor any agent of Landlord has made any representation or
warranty regarding the condition of the Premises, the Building or the Project or
with respect to the suitability of any of the foregoing for the conduct of
Tenant's business, except as specifically set forth in this Lease.
1.2 PREMISES ACCEPTED "AS-IS; TENANT IMPROVEMENTS. Tenant
acknowledges that it is in possession of Space A and agrees to accept the entire
Building on an "as is" basis, and
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Landlord shall have no obligation to perform any tenant improvements or to
provide Tenant with any allowance for tenant improvements, except as follows:
(a) Landlord has installed six windows on the south side of the second floor and
six windows on the south side of the third floor of the Building ("Landlord's
Window Work"), and (b) Landlord has performed or shall perform the work
described on EXHIBIT I attached hereto ("Landlord's Repair Work"). Landlord's
Window Work and Landlord's Repair Work are hereinafter referred to collectively
as "Landlord's Work". Landlord's Work shall be performed in a good and
workmanlike manner and in compliance with all applicable laws, rules,
regulations and other requirements of all governmental authorities having
jurisdiction thereover. In performing Landlord's Repair Work, Landlord shall:
(y) complete Landlord's Repair Work on or before the applicable date(s) set
forth in Exhibit I-2, subject to force majeure, and (z) perform Landlord's
Repair Work in a manner which will not unreasonably interfere with Tenant's use
of the Premises or with any work which Tenant may perform to prepare the
Premises and/or the Building for Tenant's occupancy, provided, however, Tenant
understands and agrees that such work will be conducted during normal business
hours. Tenant shall pay Landlord, as Additional Rent under this Lease, one-half
of the cost of Landlord's Window Work ($39,692), within thirty (30) days after
Tenant's receipt of Landlord's request for such payment, which request shall be
submitted together with reasonable evidence of the total cost of such work.
Tenant acknowledges that the Portions of the Premises have not been "demised" or
separated from the rest of the Building, and Landlord shall have no obligation
to add demising walls, or any other tenant improvements to the Premises, except
as expressly set forth above.
1.2.1 Tenant shall be responsible, at its sole cost and
expense, for making any tenant improvements to the Premises and the Building
which Tenant determines, in Tenant's sole judgment, are necessary to prepare the
Premises and Building for Tenant's occupancy (the "Tenant Improvements") at its
sole cost and expense in accordance with the provisions of this Lease,
including, without limitation, Articles 8, 9 and 24. Said construction shall be
performed in a good and workmanlike manner and subject to and in accordance with
all applicable laws, rules, regulations and other requirements of all
governmental authorities having jurisdiction thereover, free of any liens or
other claims. Tenant shall apply for and obtain all permits, licenses and
certificates necessary for the construction of the Tenant Improvements and for
the use and occupancy thereof for the purposes set out in this Lease; however,
Landlord hereby represents to Tenant that there is an existing Certificate of
Occupancy issued to 3Com Corporation. Landlord shall, at no cost to Landlord,
cooperate with Tenant, in such manner as Tenant may reasonably request, in
assisting Tenant in obtaining such permits, license and certificates.
1.2.2 Landlord and its authorized representatives shall have
the right, upon reasonable advance oral notice (except that no notice shall be
required in an emergency) to enter at all reasonable times upon the Premises and
the Building for the purpose of inspecting the construction of the Tenant
Improvements as such construction progresses, it being understood, however, that
neither such inspection nor failure to inspect shall operate as approval of such
construction by Landlord. In making any such entry, Landlord and its
representatives shall comply with the reasonable safety requirements of Tenant
and Tenant's contractor.
1.2.3 Tenant warrants the Tenant Improvements will be
constructed (i) in a good and workmanlike manner, (ii) in compliance with all
Applicable Laws (as defined in ARTICLE 24) existing at the time of construction,
and (iii) in a manner that will not cause the
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Premises or the Building to fail to be in compliance with Applicable Laws.
Tenant will be fully responsible for making all alterations and repairs to the
Tenant Improvements, at its sole cost and expense, resulting from or
necessitated by the failure of Tenant and/or Tenant's contractor to comply with
all Applicable Laws in effect at the time of such construction. In the event
that Tenant performs any tenant improvements that require the issuance or
re-issuance of a certificate of occupancy, then Tenant agrees to obtain and
deliver to Landlord a permanent Certificate of Use and Occupancy from the Town
of Marlborough,
Massachusetts upon the completion of the Tenant Improvements (or
a temporary certificate of use and occupancy, with any conditions to be
satisfied by Tenant within a commercially reasonable time, and a permanent
certificate of use and occupancy delivered to Landlord promptly thereafter).
1.3 THE BUILDING AND THE PROJECT. The Building is part of a complex
of buildings located on the Property consisting of four (4) buildings and other
improvements. The term "PROJECT," as used in this Lease, shall mean (i) the
Building and the Common Areas (as such term is defined in SECTION 1.4 below),
(ii) the land (which is improved with landscaping, parking areas, access roads
and other improvements) upon which the Building and the Common Areas are located
as shown on the Project Site Plan, (iii) the three other office buildings
(including without limitation, "BUILDING 1", "BUILDING 2" and "BUILDING 4")
located adjacent to the Building and the land upon which such adjacent office
buildings are located, all substantially as shown on the Project Site Plan
attached hereto as EXHIBIT B; and (iv) any other improvements that may be
constructed by Landlord as part of the Project.
1.4 COMMON AREAS. Tenant shall have the non-exclusive right to use in
common with Landlord and other tenants in the Project, and subject to the Rules
and Regulations (as defined in ARTICLE 5 of this Lease), those portions of the
Project which are provided, from time to time, for non-exclusive use in common
by Landlord, Tenant and any other tenants of the Project (such areas, including
without limitation parking areas, driveways, access roads and sidewalks on the
Project, whether or not shown on the Project Site Plan, and common facilities
within the Project such as lobbies, corridors, connectors, stairwells,
elevators, loading docks, and restrooms, the Conference Facilities (as defined
in SECTION 1.4.1, below), Cafeteria (as defined in SECTION 1.4.2, below) and
Fitness Center (as defined in SECTION 1.4.2, below), together with such other
portions of the Project designated to Tenant in writing by Landlord to be shared
by Landlord and certain tenants, all of which are collectively referred to
herein as the "COMMON AREAS"). Landlord shall maintain and operate the Common
Areas in a manner consistent with Comparable Buildings (as defined in SECTION
6.1). Landlord reserves the right to close temporarily or permanently, make
alterations or additions to, or change the location of elements of the Project
and the Common Areas, including, without limitation, the right to (a) make
changes in the location, size, shape and number of driveways, entrances, parking
spaces, parking areas, loading and unloading areas, ingress, egress, direction
of traffic, landscaped areas and walkways; (b) to close temporarily any of the
Common Areas for maintenance purposes so long as reasonable access to the
Premises remains available; (c) to add additional improvements to the Common
Areas; (d) to use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Project, or any portion thereof; (e)
to do and perform such other acts and make such other changes in, to or with
respect to the Project, Building and Common Areas as Landlord may deem to be
appropriate; and (f) to remove temporarily or permanently areas from use as
Common Areas any portion of the Common Areas; provided, however, that: (i)
Landlord's exercise of the foregoing rights shall not materially, adversely
interfere with either Tenant's use of, occupancy
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of, or access to the Premises or the Common Areas, other than and excluding the
Common Areas of Building 4, which may be withdrawn from Common Areas subject to
the provisions set forth in SECTIONS 1.4.1, 1.4.2 AND 1.4.3, below, (ii) no
structure other than a "connector" which is not more than one story in height,
linking one or more buildings or structures, shall be constructed in the "Low
Build Area" as shown on EXHIBIT B, (iii) if a parking structure is built within
the area shown as "Preferred Parking Area" on the plan attached hereto as
EXHIBIT B, Tenant shall have non-exclusive use of at least the number of parking
spaces that are displaced by the construction of said parking structure, within
said parking structure, or in another location as close to Building 3 as the
lost parking, without additional charge, and (iv) except as shown on the plan
attached hereto as EXHIBIT M, there shall be no change or alteration to the
configuration of the "RESTRICTED PARKING AREA" shown on EXHIBIT B without
Tenant's prior written consent, which consent shall not be unreasonably
withheld. In the event of any such change in the Project or the Common Areas, an
equitable adjustment to the Tenant's Share of Operating Expenses and Tax
Expenses, if appropriate, shall be made.
1.4.1 CONFERENCE FACILITIES. Subject to availability, and
prior reservation in accordance with any reasonable procedures implemented by
Landlord and provided in writing to Tenant, Tenant shall have the right to use
the meeting and training rooms and the auditorium located in Building 4
(collectively, the "CONFERENCE FACILITIES") in common with Landlord and other
tenants of the Project, to the extent otherwise permitted by Landlord. The use
of such facilities shall be subject to such reasonable, non-discriminatory rules
and requirements as Landlord may establish and provide in writing to Tenant, and
to all other provisions of this SECTION 1.4. Tenant shall have the right to use
the Conference Facilities subject to the conditions set forth in this Lease,
without payment of any additional fee, for a period of time equal to Tenant's
Share of the business hours use of the Conference Facilities, so long as its use
does not exceed Tenant's Share of the available days per week and/or per month,
with Landlord reserving the right to monitor and limit to Tenant's Share
Tenant's utilization during normal working hours (versus other hours) or
business days (versus holiday and/or weekend days), in its reasonable business
judgment. The foregoing shall not limit Landlord's right to include costs of
operating the Conference Facilities in Operating Expenses, subject to, and in
accordance with, Section 4.2 below, or to charge Tenant for Excess Usage Fees in
accordance with the provisions of this Section 1.4.1. In addition, Tenant may
use the Conference Facilities for periods of time that exceed Tenant's Share on
a space available basis, and subject to said rules and regulations, including,
without limitation, payment of a fee ("Excess Usage Fee") for such usage based
on Landlord's then current schedule, and the other provisions of this SECTION
1.4. Notwithstanding any other provision herein to the contrary, Landlord
reserves the right, upon written notice to Tenant, (a) to retain a third party
operator to operate the Conference Facilities, or (b) to lease the Conference
Facilities to a third party, provided, however, in either such case, Landlord
shall provide for the right of Tenant to rent, or otherwise use, the Conference
Facilities listed below on the same basis as set forth in this Lease.
1.4.2 CAFETERIA. Tenant and its employees, contractors,
visitors and consultants shall have the right to use the cafeteria (the
"CAFETERIA") located in the Project provided such parties shall be responsible
for payment of all charges for meals and other items purchased at the Cafeteria.
The use of such facilities by Tenant and/or its employees, contractors, visitors
and consultants shall be subject to compliance with the other provisions of this
SECTION 1.4. A third party provider currently provides food and beverage service
in the
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Cafeteria. Subject to the last two sentences of this SUBSECTION 1.4.2, Landlord
shall have the right to discontinue or change cafeteria service, provided,
however, Landlord shall continue to provide cafeteria service substantially in
its current form (including hot food service) so long as there are at least 500
employees working in Buildings 1, 2 and 3, and Landlord shall use commercially
reasonable efforts to continue to provide cafeteria service substantially in its
current form so long as CYTYC has at least 400 employees working in Building 3
(even if there are fewer than 500 employees working in Buildings 1, 2 and 3).
Subject to the foregoing, Landlord, in its reasonable discretion, may change the
size, configuration or location of the Cafeteria area. In the event that
Landlord has the right to discontinue cafeteria service in accordance with this
SECTION 1.4.2, if Landlord is unable to locate an operator that will operate the
Cafeteria on terms acceptable to Landlord, in its reasonable business
discretion, Landlord shall have the right and option, in its sole discretion, to
take any steps necessary to reduce or eliminate such costs, including, without
limitation, modification or reduction of the food service, provided, however,
(i) prior to discontinuing hot food service, Landlord shall discuss with Tenant
other options for food service; and (ii) if Landlord discontinues cafeteria
service during the Term, Landlord shall provide an alternative fresh food
(including breakfast items, sandwiches, and salads, but not hot food) and
vending service and a seating area or facility similar to that which currently
exists at the Project sufficient to reasonably accommodate Tenant's employees
located at the Project. If the total cost of providing cafeteria service exceeds
$100,000 per year, Landlord may discontinue cafeteria service (and, at Tenant's
request, Landlord will consider discontinuing such service), but prior to such
change(s), Landlord shall discuss with Tenant options to reduce such costs.
1.4.3 FITNESS CENTER. Tenant and its employees, contractors
and consultants shall have access to and the right to use the fitness center
(the "FITNESS CENTER") located in the Project provided such parties shall be
responsible for payment of all charges customarily charged by Landlord to
tenants of the Project for the use of the fitness center (currently $25.00 per
month). The use of such facilities by Tenant and/or its employees, contractors,
visitors and consultants shall be subject to compliance with the other
provisions of this SECTION 1.4. Landlord shall have the right to require that
Tenant's employees sign customary waivers of claims and comply with all
reasonable safety and other procedures applicable to use of the Fitness Center.
Notwithstanding any other provision herein to the contrary, Landlord reserves
the right, upon written notice to Tenant, (a) to retain a third party operator
to operate the Fitness Center, (b) to lease the Fitness Center to a third party
who agrees to operate a fitness facility which shall be available to tenants of
the Project and their employees upon payment of standard charges, and/or (c) to
provide a Fitness Center which is unattended, and does not provide amenities
such as towels, provided, however, in any such case, Landlord shall provide for
the right of Tenant to rent, or otherwise use, the Fitness Center on the same
basis as set forth in this Lease. Subject to the last sentence of this Section
1.4.3, Landlord shall have the right to terminate Tenant's use of the Fitness
Center upon ten (10) days prior written notice to Tenant if the Fitness Center
is closed. Landlord shall continue to provide a fitness facility at the Project
during the Term of the Lease (which facility need not be attended nor provide
amenities such as towels) so long as there are at least 500 employees working in
Buildings 1, 2 and 3, and Landlord shall use commercially reasonable efforts to
continue to make a fitness facility available at the Project during the Term of
the Lease (which facility need not be attended nor provide amenities such as
towels) so long as CYTYC has at least 400 employees working in Building 3 (even
if there are fewer than 500 employees working in Buildings 1, 2 and 3).
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1.4.4 EQUITABLE CHARGE IF TENANTS OF NEW BUILDINGS ARE GIVEN
RIGHTS TO USE BUILDING 4 AMENITIES. Landlord agrees that if other buildings are
built at the Project and the tenants of such buildings have access to the
Building 4 amenities, an equitable charge shall be assessed against such tenants
for the use of such facilities.
1.5 FURNITURE. For no additional charge, Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord those items of furniture and
artwork situated in the Premises and the Building (the "FURNITURE") and
described on the inventory list attached hereto as EXHIBIT C (the "INVENTORY
LIST"). Landlord and Tenant acknowledge that prior to the Lease Commencement
Date the parties will conduct a "walk-through" inspection of the Premises and
the Building in order to confirm the completeness and accuracy of the furniture
shown on the Inventory List, and to give Tenant the opportunity to confirm that
the Furniture is in acceptable condition and repair. Subject to such
"walk-through" inspection, Tenant accepts the Furniture in its "as-is"
condition, without any representation or warranty by Landlord. LANDLORD
SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS AND/OR WARRANTIES, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE FURNITURE. During the Term of this Lease, Tenant
shall maintain and repair the Furniture as reasonably necessary, reasonable wear
and tear, damage caused by fire or other casualty, and damage caused by Landlord
Fault, as defined in SECTION 6.4.3 excepted. Provided there is no Default
Condition (as defined in SECTION 2.2, below) the Furniture shall become the
property of Tenant, for nominal consideration, on December 31, 2010. During the
Term of the Lease, Tenant shall be permitted to reconfigure and/or move the
Furniture within the Premises, and shall not be required to restore the
Furniture to its original location within the Premises. Prior to the date Tenant
acquires title to the Furniture, Tenant shall be permitted to store the
Furniture outside the Premises in a commercially reasonable manner at a location
approved by Landlord (which approval shall not be unreasonably withheld or
delayed), provided that Tenant shall relocate the Furniture into the Premises
prior to the expiration or earlier termination of the Lease (unless the
Furniture has theretofore been conveyed to Tenant in which case Tenant shall
remove the Furniture from the Premises). Upon termination of this Lease, if the
Furniture has not theretofore been conveyed to Tenant and Landlord is not then
required to, and/or does not then convey the Furniture to Tenant, Tenant shall
surrender the Furniture to Landlord in the same condition and repair as on the
Lease Commencement Date, reasonable wear and tear, damage by fire or other
casualty, and damage caused by Landlord Fault excepted.
1.6 CARD KEY ACCESS. Tenant shall have the right to use the Project
card key access system, subject to the Rules and Regulations set forth on
EXHIBIT D, attached hereto. If Tenant replaces the card key access system in
Building 3 with its own card key access system, the Rules and Regulations
concerning the Project card key access system shall not be applicable to the
Tenant's card key access system in Building 3. Except as expressly provided
herein, and subject to the TCC's of this Lease, Tenant shall not have access to
those portions of the Project not comprising the Common Areas or the Building,
which shall remain subject to Landlord's sole and exclusive control (and/or
subject to the control of other tenants to whom such space has been leased).
Nothing herein shall preclude Landlord from accessing the Premises and the
Building, subject to the requirements of ARTICLE 27, for purposes of undertaking
maintenance or repairs or as otherwise provided in this Lease. Landlord makes no
representations or warranties, (and hereby expressly disclaims any
representations and warranties, INCLUDING, WITHOUT
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LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF
MERCHANTABILITY) regarding the suitability of any key card access system for
Tenant's particular purposes. In no event shall Landlord be responsible or
liable to Tenant or its employees for any unauthorized entry upon the Premises
or the Building or for any failure of the access system to prevent such entry.
ARTICLE 2
LEASE TERM
2.1 LEASE TERM. The TCCs of this Lease shall be effective as of the
date of this Lease as set forth in SECTION 1 of the Summary (the "EFFECTIVE
DATE"). The initial term of this Lease (the "INITIAL TERM") shall be as set
forth in SECTION 3.1 of the Summary, shall commence on the date set forth in
SECTION 3.2 of the Summary (the "LEASE COMMENCEMENT DATE"), and shall expire on
the date set forth in SECTION 3.4 of the Summary (the "LEASE EXPIRATION DATE")
unless this Lease is sooner terminated as hereinafter provided.
2.2 OPTION TO EXTEND. Subject to there being no "Default Conditions"
(as that term is defined below) as of the date of exercise of the option, and as
of the commencement date of the applicable Option Term, Tenant shall have two
(2) options to extend (each, an "OPTION TO EXTEND") the term of the Lease for a
period of five (5) years (each, an "Option Term") upon the same terms and
conditions herein set forth except that the Base Rent during each such Option
Term shall be adjusted in accordance with SECTION 3.1.1, below. Tenant may
exercise each such option by giving Landlord written notice at least twelve
months and not more than eighteen months prior to the expiration of the then
current Term of the Lease, time being of the essence, provided however, that
Tenant's extension option shall not lapse unless Tenant fails to exercise its
option prior to the later of: twelve months prior to the expiration of the then
current Term of the Lease or within ten (10) business days after Landlord gives
Tenant a written notice stating that "Tenant has an extension option which must
be exercised prior to the later of: ten (10) business days after the date of
this letter, or on or before ________" (stating the applicable date), which
notice shall not be given more than two years prior to the expiration of the
then current Term of the Lease. At Landlord's option, Tenant's exercise of its
option shall be void and of no effect if a Default Condition exists as of the
date of exercise of the option or as of the first day of the Option Term.
As used in this Lease, "DEFAULT CONDITIONS" shall mean the following,
collectively: Tenant being in default of its obligations under the Lease beyond
any applicable notice and grace periods, Tenant having defaulted more than twice
in the payment of any monetary obligation in excess of $50,000 under the Lease
(beyond applicable notice and grace periods) during the prior twenty-four month
period, Tenant being the subject of any bankruptcy or insolvency proceedings,
and Tenant being insolvent.
As used in this Lease, "TERM" or "LEASE TERM" shall mean the Initial Term, and
any Option Term that is duly exercised.
ARTICLE 3
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BASE RENT
3.1 BASE RENT. Commencing on the Rent Commencement Date with respect
to each Portion of the Premises, Tenant shall pay, without prior notice or
demand, to Landlord or Landlord's agent at the management office of the Project,
or, at Landlord's option, at such other place as Landlord may from time to time
designate in writing, by a check or wire transfer for currency which, at the
time of payment, is legal tender for private or public debts in the United
States of America, base rent ("BASE RENT") as set forth in SECTION 4 of the
Summary, payable in equal monthly installments as set forth in SECTION 4 of the
Summary in advance on or before the first day of each and every calendar month
during the Lease Term, without any setoff or deduction whatsoever, except as
otherwise expressly set forth herein. The Base Rent for the first full month of
the Initial Term in which rent is due shall be paid upon execution of this
Lease. If any Rent payment date (including the Rent Commencement Date) falls on
a day of the month other than the first day of such month or if any payment of
Rent is for a period which is shorter than one month, the Rent for any
fractional month shall accrue on a daily basis for the period from the date such
payment is due to the end of such calendar month or to the end of the Lease Term
at a rate per day which is equal to l/365 of the applicable annual Rent. All
other payments or adjustments required to be made under the TCCs of this Lease
that require proration on a time basis shall be prorated on the same basis.
The "RENT COMMENCEMENT DATE" shall be the applicable date set forth in SECTION
3.3 of the Summary with respect to each Portion of the Premises, except as set
forth in SECTION 14.4.1, below.
3.2 BASE RENT DURING OPTION TERM. If Tenant exercises either Option
to Extend, the Base Rent for the Premises during each Option Term shall be equal
to 95% of the then prevailing market rental rate in Comparable Buildings (the
"PMRR"); the PMRR shall not take into account any leasehold improvement work
paid for by Tenant, and no rate "floor" will be established. Within thirty days
after the date that Landlord receives written notice of Tenant's interest in
exercising its Option to Extend, Landlord shall give Tenant written notice of
its determination of the PMRR and the Base Rent for the Option Term. If Tenant
does not accept the Base Rent proposed by Landlord, the parties agree to
negotiate in good faith for a period not to exceed thirty days. Provided that
Tenant has given Landlord written notice of its interest in exercising its
option at least sixteen months prior to the expiration of the then current Term,
if Tenant believes that agreement cannot be reached, Tenant shall have the
right, within forty days after receipt of Landlord's determination of Base Rent
for the Option Term to demand that the PMRR be determined by appraisal, in which
case, Landlord and Tenant shall each select a Qualified Appraiser to determine
the PMRR, and if the two appraisals are no more than 10% apart the PMRR shall be
the average of the two, and if the difference is greater than 10%, the two
appraisers shall select a third Qualified Appraiser and the PMRR shall be the
average of the two appraisals that are closest (or if neither is closer to the
third appraisal, the PMRR shall be based on the third appraisal). The first two
appraisals shall be completed within thirty days, and if a third appraisal is
required, it shall be completed within thirty days thereafter. Each party shall
be responsible for the timely completion of the appraisal by its selected
appraiser. If either party fails to designate a Qualified Appraiser within ten
days after notice, the first party may request its appraiser to designate the
second appraiser.
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Nothing herein shall be deemed to have extended the time within which Tenant
must exercise its Option to Extend, provided, however, Tenant shall have the
right to withdraw the exercise of its Option to Extend with respect to the
Option Term by written notice to Landlord within thirty days after the
determination of the PMRR (time being of the essence), provided that the Term of
the Lease shall continue for a period of twelve months after Tenant withdraws
such option exercise, and during the period following the expiration of the
prior Term and continuing to the expiration of the twelve month extension,
Tenant shall pay Base Rent equal to 95% of the PMRR as determined by appraisal,
plus all Additional Rent due in accordance with the TCCs of this Lease.
ARTICLE 4
ADDITIONAL RENT
4.1 GENERAL TERMS. In addition to paying the Base Rent specified in
ARTICLE 3 of this Lease, Tenant shall pay "TENANT'S SHARE" of the annual "DIRECT
EXPENSES," as those terms are defined in SECTIONS 4.2.4 and 4.2.1 of this Lease,
respectively. In addition to the foregoing obligations, Tenant shall also pay
"TENANT'S ELECTRICITY COST," as set forth in SECTION 4.7 of this Lease,
separately from any Direct Expenses. Such payments by Tenant, together with any
and all other amounts payable by Tenant to Landlord pursuant to the TCCs of this
Lease, are hereinafter collectively referred to as the "ADDITIONAL RENT," and
the Base Rent and the Additional Rent are herein collectively referred to as
"RENT." All amounts due under this ARTICLE 4 as Additional Rent shall be payable
for the same periods and in the same manner as the Base Rent without any setoff
or deduction whatsoever, except as otherwise expressly set forth herein. The
obligations of Tenant to pay the Additional Rent provided for in this ARTICLE 4
shall survive the expiration or earlier termination of the Lease Term for such
period of time as is required to reconcile the Estimated Direct Expenses and
Overpayment of Direct Expenses pursuant to SECTION 4.4.1 hereof; provided,
however, that any other contingent or unliquidated contractual claims of
Landlord or Tenant (e.g., indemnity) shall survive the expiration or earlier
termination of this Lease only for so long as any applicable statute of
limitations would permit such actions under
Massachusetts law.
4.2 DEFINITIONS OF KEY TERMS RELATING TO ADDITIONAL RENT. As used in
this ARTICLE 4, the following terms shall have the meanings hereinafter set
forth:
4.2.1 "DIRECT EXPENSES" shall mean the sum of "Operating
Expenses" plus "Tax Expenses".
4.2.2 The parties acknowledge that, subject to the provisions
forth in SECTION 4.8, Tenant may elect to provide certain services to the
Building. Therefore, notwithstanding anything to the contrary herein contained,
with respect to any period of time during which such election is in effect,
Operating Expenses allocable to Tenant shall not include expenses incurred by
Landlord for the services which Tenant has elected to provide with respect to
the Building, for any other space in the Project (other than Building 4 and
Common Areas) which is leased or used, or is intended to be leased or used, for
the exclusive benefit of any tenant or tenants. Subject to the foregoing,
"OPERATING EXPENSES" shall mean, except as otherwise provided in this SECTION
4.2.2 or otherwise in this Lease, all expenses, costs and amounts of every kind
and
13
nature which Landlord pays or accrues during any calendar year because of or in
connection with the operation, management, maintenance, security, repair,
replacement, restoration or operation of the Project, or any portion thereof,
subject to the allocation thereof as set forth in SECTION 4.3, below. Without
limiting the generality of the foregoing, Operating Expenses shall specifically
include any and all of the following: (i) the cost of supplying utilities
(excepting any utility, including, without limitation, electricity, which is
metered directly to Tenant), operating, repairing, maintaining, and renovating
the utility, telephone, and all other systems and equipment and components
thereof of common portions of the Project, and the cost of maintenance and
service contracts in connection therewith and payments under any equipment
rental agreements (subject to the limitation set forth in clause (Z) of this
SECTION 4.2.2);; (ii) the cost of all insurance which, pursuant to SECTION 10.6,
Landlord is required or permitted to carry in connection with the Building and
any other portion of the Project; (iii) the cost of landscaping the Project, or
any portion thereof; (iv) costs incurred in connection with the parking areas
servicing the Project; (v) fees and other costs, including management fees
(which management fees shall not to exceed three percent (3%) of gross receipts
with respect to the Project exclusive of reimbursement for on-site personnel),
(vi) subject to clauses (A), (V), and (AA) of this SECTION 4.2.2, consulting
fees, legal fees and accounting fees, of all contractors and consultants in
connection with the management, operation, maintenance and repair of the
Project; (vi) wages, salaries and other compensation and benefits, including
taxes levied thereon, of all persons engaged in the operation, maintenance and
security of the Project; provided, however, that wages and/or benefits
attributable to personnel above the level of property manager for the Project or
property engineer for the Project shall not be included in Operating Expenses;
(vii) the cost of janitorial, alarm, security and other services, replacement of
wall and floor coverings, ceiling tiles and fixtures in common areas,
maintenance and replacement of curbs and walkways, and repair to roofs in Common
Areas; (viii) excepting the items that are at Landlord's sole cost under SECTION
7.1, repairs or replacements and other costs incurred in connection with the
Project that are capital in nature under generally accepted accounting
principles; provided, however, that any such capital expenditure shall be
amortized (with interest at a commercially reasonable rate) over its useful life
(determined in accordance with Treasury Regulations) and only the annual
amortized portion and interest applicable to the respective calendar year shall
be included in Operating Expenses; (ix) the amount of any payments, payments in
lieu of taxes, or other consideration (in cash or otherwise) that Landlord is
required to make in connection with any tax abatement or tax exemption
agreements benefiting the Project, including, without limitation, payments
pursuant to the TIF Agreement (as defined in SECTION 29.34, below) that are not
included in Tax Expenses; and (x) costs, fees, charges or assessments imposed
by, or resulting from any mandate imposed on Landlord by, any federal,
commonwealth, state or local government for fire and police protection, trash
removal, community services, or other services which are not duplicative of "Tax
Expenses" as that term is defined in SECTION 4.2.3, below.
Notwithstanding anything in this SECTION 4.2.2 to the contrary, for
purposes of this Lease, Operating Expenses shall not, however, include the
following:
(A) marketing costs, costs of leasing commissions, renovations,
attorneys' fees and other costs and expenses incurred in connection with
negotiations or disputes with present or prospective tenants or other
occupants of the Project;
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(B) interest, principal, points and fees on debts or amortization
on any mortgage or mortgages or any other debt instrument encumbering the
Building or the Project;
(C) the original costs of constructing the Building and the
Project, or any capital additions (such as additional buildings or
connectors) thereto, and the cost of correcting any defect in the original
construction of any portion or component of the Building or Project;
(D) expenses to the extent Landlord will be reimbursed by another
source (excluding Operating Expense reimbursements by tenants), including
without limitation replacement of any items covered by warranties;
(E) costs incurred to benefit (or resulting from) a specific
tenant or items and services selectively supplied to any tenant other than
Tenant (e.g., excess or separately metered utilities);
(F) expenses for the defense of Landlord's title to the Project;
(G) expenses incurred in the maintenance, repair and replacement
of the Building Structure (as defined in SECTION 7.1) and/or the structural
portions of other buildings in the Project, including without limitation
the foundation, floor/ceiling slabs, roof structure, exterior walls,
structural load bearing walls, columns, beams and shafts (including
elevator shafts) thereof;
(H) charitable or political contributions;
(I) expenses incurred to comply with governmental laws,
ordinances, regulations (including without limitation all environmental
laws and the Americans with Disabilities Act of 1990, as amended), court
order, decree or judgment in effect prior to the Effective Date (as defined
in SECTION 2.1, above), except to the extent any noncompliance results from
Tenant's use and occupancy of the Premises and/or the Building;
(J) any expenses incurred in repair, restoration or other work
necessitated by fire or other casualty to the extent covered by insurance
proceeds;
(K) rent and other charges payable under any ground leases or
other underlying leases;
(L) costs associated with maintaining Landlord's existence as a
corporation or other legal entity;
(M) All electrical charges included in Tenant's Electricity Cost;
(N) the cost of environmental testing, monitoring, remediation,
and compliance performed in, on, and around the Project, other than
ordinary environmental monitoring and testing (for purposes of this
subsection, "ordinary environmental monitoring and testing" shall include
those conditions which arise from the normal use of the Building, for
example, items such as air quality monitoring and filtration in the
Building, but shall
15
not include monitoring and/or testing for Hazardous Materials brought onto
the Project, Building or Premises by Landlord or by any other tenant or
occupant (that is, other than Tenant, and any occupants claiming by,
through, or under Tenant) of space in the Project other than the Building);
provided, however, nothing in this clause (N) shall limit Tenant's
liability under SECTION 29.31 for violations of Environmental Law caused
by, or contributed to by Tenant;
(O) Costs and expenses in connection with leasehold improvements,
alterations and decorations which are made in connection with the
preparation of any portion of the Project for occupancy of that portion of
the Project by a new or existing tenant or in connection with the
development or construction of additional buildings in the Project;
(P) Costs incurred in connection with the making of repairs or
replacements which are the obligation of another tenant or occupant of the
Project;
(Q) Salaries, wages, benefits and other expenses or employment of
officers and executives of Landlord and other employees of Landlord to the
extent such other employees are not directly involved in the operation,
repair, maintenance and management of the Building and/or the Project; or
where such employees devote time to properties other than the Project, the
portion properly allocable to such other properties;
(R) Landlord's general overhead and profit paid to partners,
subsidiaries or affiliates of Landlord (excluding payment for services
provided subject to clause (U) below);
(S) Depreciation;
(T) Costs and expenses related to vacant spaces intended for
occupancy by tenants which would not be included in Operating Expenses if
the space were occupied;
(U) Payments to subsidiaries or affiliates of Landlord for
services rendered to the Building to the extent such amounts exceed
competitive costs therefor if not provided by such related parties;
(V) Costs (including without limitation attorneys fees and
disbursements) incurred in connection with any judgment, settlement or
arbitration award resulting from any tort liability;
(W) any fees, fines and penalties arising from violation by
Landlord or Landlord's employees or authorized agents of Applicable Law (as
defined in Article 24), including costs of litigation and attorney's fees
related thereto;
(X) Costs to acquire or rent sculpture, paintings and other works
of art;
(Y) Reserves;
16
(Z) Rental payable by Landlord for items that are needed on a
recurring basis and which remain on the Project site when not being used
with respect to any improvement or equipment which, if purchased, would be
considered to be a capital item, to the extent that such rental exceeds the
amortization which could have been included for such item had such item
been purchased rather than leased;
(AA) Except for those legal, auditing, consulting and
professional fees and other costs incurred in connection with the normal
and routine maintenance and operation of the Common Areas of Project,
legal, auditing, consulting and professional fees and other costs
including, without limitation, those: (i) paid or incurred in connection
with financings, refinancings or sales of any Landlord's interest in the
Building or the Project, (ii) relating to specific disputes with tenants,
and (iii) relating to any special reporting required by securities laws;
and
(BB) Increases in insurance premiums caused by the conduct or use
of any tenant in the Project in using their premises for other than office
purposes.
4.2.3 TAXES.
4.2.3.1 "TAX EXPENSES" shall mean all federal, state,
commonwealth, county, or local governmental or municipal taxes, fees, charges or
other impositions of every kind and nature, whether general, special, ordinary
or extraordinary, (including, without limitation, real estate taxes, general and
special assessments, transit taxes, leasehold taxes or taxes based upon the
receipt of rent, measured as if the Project were the only property owned by
Landlord, including gross receipts, service tax, value added tax or sales taxes
applicable to the receipt of rent or services provided herein, and unless
required to be paid by Tenant, personal property taxes imposed upon the
fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances,
furniture and other personal property used in connection with the Project, or
any portion thereof), which shall be paid or accrued during any calendar year
because of or in connection with the ownership, leasing and operation of the
Project, or any portion thereof. Landlord hereby represents that, as of the
Effective Date, the only costs included in Tax Expenses are real estate taxes
assessed by the City of Marlborough, as affected by the TIF Agreement, as
defined in SECTION 29.34. Special and extraordinary assessments and impositions
shall only be included in Tax Expenses as if paid by Landlord over the longest
period of time permitted by Applicable Laws, in which case all interest and
other charges applicable because of the choice of method of payment shall also
be included in Tax Expenses. Tax Expenses shall not include any betterments or
assessments arising in connection with the development of additional buildings
in the Project.
4.2.3.2 Subject to the last sentence of Section
4.2.3.3, Tax Expenses shall include, without limitation: (i) any tax on the
rent, right to rent or other income from the Project, or any portion thereof, or
as against the business of leasing the Project, or any portion thereof (measured
as if the Project were the only property owned by Landlord); (ii) any
assessment, tax, fee, levy, or charge allocable to or measured by the area of
the Premises or the Rent payable hereunder, including, without limitation, any
business or gross income tax or excise tax with respect to the receipt of such
rent, or upon or with respect to the possession, leasing, operating, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Building, or
any
17
portion thereof (measured as if the Project were the only property owned by
Landlord); (iii) any assessment, tax, fee, levy or charge, upon this
transaction; (iv) the amount of any payments, payments in lieu of taxes, or
other consideration (in cash or otherwise) that Landlord is required to make to
any taxing authority in connection with any tax abatement or tax exemption
agreements benefiting the Project, including, without limitation, payments
pursuant to the TIF Agreement (as defined in SECTION 29.34, below); and (v) if
Tenant fails to pay timely Tenant's Share of Tax Expenses as requested by
Landlord, any penalties or interest caused by late payment of Tax Expenses by
Landlord to the extent they exceed the late charge, if any, paid by Tenant under
Article 25 of this Lease with respect to Tenant's late payment of Tenant's Share
of Tax Expenses.
4.2.3.3 Any reasonable costs and expenses (including,
without limitation, reasonable attorneys' fees) incurred in attempting to
protest, reduce or minimize Tax Expenses shall be included in Tax Expenses in
the calendar year such expenses are paid. Any refunds of Tax Expenses shall be
credited against Tax Expenses for the year in question, and Tenant's Share of
any excess applicable to any period within the Lease Term shall be credited
against Additional Rent due from Tenant or refunded to Tenant regardless of when
received, based on the year to which the refund is applicable, provided that in
no event shall the amount to be refunded to Tenant for any such year exceed the
total amount paid by Tenant as Tenant's Share of Tax Expenses under this ARTICLE
4 for such year. If, subject to the last sentence of this Section 4.2.3.3, Tax
Expenses for any period during the Lease Term or any extension thereof are
increased after payment thereof for any reason, including, without limitation,
error or reassessment by applicable governmental or municipal authorities,
Tenant shall pay Landlord within thirty (30) days after receipt of Landlord's
written demand Tenant's Share of any such increased Tax Expenses included by
Landlord as Tax Expenses pursuant to the TCCs of this Lease. Notwithstanding
anything to the contrary contained in this SECTION 4.2.3, there shall be
excluded from Tax Expenses (i) all excess profits taxes, franchise taxes,
corporate excise taxes, gift taxes, capital stock taxes, inheritance and
succession taxes, estate taxes, federal and commonwealth/state income taxes, and
other taxes to the extent applicable to Landlord's general or net income (as
opposed to rents, receipts or income attributable to operations at the Project),
(ii) any items included as Operating Expenses, (iii) any items paid by Tenant
under SECTION 4.5 of this Lease, (iv) any increases in Tax Expenses which are
not allocable to Tenant pursuant to Section 4.2.3.5, and (v) provided that
Tenant has timely paid Tenant's Share of Tax Expenses as requested by Landlord,
any penalties or interest caused by late payment of Tax Expenses by Landlord.
4.2.3.4 Landlord shall use commercially reasonable
efforts to provide copies of any invoices or other notices from the taxing
authorities evidencing the Tax Expenses to Tenant within ten (10) business days
after Tenant's request therefor, provided however, Landlord shall have no
liability to Tenant based upon Landlord's failure timely to deliver a copy of
any such invoice to Tenant.
4.2.3.5 If the Premises or the Building are not
assessed as a separate tax parcel, then the allocation of Tax Expenses to the
Premises, as applicable, shall be on a pro rata basis, based on rentable square
feet in the Premises, compared to the total rentable square feet in the Project,
provided, however, if it is determinable from the records of the tax assessor
that the assessment for the Project is being increased solely because of
improvements to a building other
18
than Building 3 (and not as a general reassessment or increase for the Project
as a whole), and such records indicate the amount of increase allocable to each
of the buildings in the Project, then Tenant shall have no obligation to pay
such increase to the extent it is allocable to a building other than Building 3
or Building 4. If the Premises are assessed as a separate tax parcel, Tenant
shall remain liable for a pro rata share of Tax Expenses on the Common Areas of
the Project, including, without limitation, Building 4.
4.2.4 Subject to the provisions of SECTION 4.2.3.5, "TENANT'S
SHARE" of Operating Expenses and Tax Expenses shall mean the applicable
percentage set forth in SECTION 6.1 of the Summary.
4.2.5 "TENANT'S BUILDING SHARE" shall mean the applicable
percentage set forth in SECTION 6.2 of the Summary.
4.3 ALLOCATION OF DIRECT EXPENSES. The parties acknowledge that the
Building is a part of a multi-building project and that the costs and expenses
incurred in connection with the Project (i.e. the Direct Expenses) will be
shared between the tenants and occupants of the Building and the tenants and
occupants of the other buildings in the Project. Accordingly, as set forth in
SECTION 4.2 above, Direct Expenses shall be determined for the Project as a
whole, and Tenant shall be responsible for paying Tenant's Share of the Direct
Expenses, provided, however, Landlord in its sole discretion, may, in a
reasonable manner, determine and allocate some or all Direct Expenses which are
incurred for the benefit of only one building to that building individually, in
which case, if said expenses are allocated to the Building, Tenant's Share of
such Direct Expenses shall be based on Tenant's Building Share. To the extent
the entire Project is not fully occupied, Landlord may adjust (i) the variable
components of Operating Expenses for cleaning, janitorial, trash, utilities,
HVAC maintenance, and window washing for areas intended for lease and occupancy
by tenants which vary based on occupancy, and (ii) the variable components of
Operating Expenses for Common Areas, for any calendar year, based on Landlord's
reasonable, good faith estimate and reasonable data available to Landlord, to
equitably allocate the Direct Expenses for the Project to the tenants; and the
amount so determined shall be deemed to have been the amount of Operating
Expenses for such year attributable to the Project. In no event shall Landlord
be entitled to collect from tenants more than 100% of Direct Expenses.
4.4 CALCULATION AND PAYMENT OF ADDITIONAL RENT. Tenant shall pay to
Landlord, in the manner set forth in SECTIONS 4.4.1 AND 4.4.2, below, and as
Additional Rent, an amount equal to Tenant's Share (as the same may vary from
time to time) of Direct Expenses.
4.4.1 STATEMENT OF ACTUAL DIRECT EXPENSES AND PAYMENT BY
TENANT. Within one hundred fifty (150) days after the end of each applicable
calendar year during the Lease Term, Landlord will deliver to Tenant a statement
(the "STATEMENT"), which shall state the Direct Expenses incurred or accrued for
such preceding calendar, and which shall indicate the amount of the Tenant's
Share thereof. Upon receipt of the Statement for each applicable calendar year,
if the amount of Tenant's Share exceeds the estimated amounts paid by Tenant for
such year (the amount of such excess, the "EXCESS"), then Tenant shall pay, with
its next installment of Base Rent due, the full amount of the Excess for such
calendar year. In the event the Statement shows that the amount paid by Tenant
under SECTION 4.4.2, below, exceeded
19
Tenant's Share of Direct Expenses for the calendar year in question (the
"OVERPAYMENT AMOUNT"), then Landlord shall credit the Overpayment Amount against
the next due installments of Additional Rent; provided, however, that with
respect to the final year of the Lease Term, Landlord shall pay to Tenant the
Overpayment Amount, if any, within thirty (30) days after Tenant's receipt of
such Statement. The failure of Landlord to timely furnish the Statement for any
calendar year shall not prejudice Landlord or Tenant from enforcing its rights
under this ARTICLE 4. Even though the Lease Term has expired and Tenant has
vacated the Premises, when the final determination is made of Tenant's Share of
Direct Expenses for the calendar year in which this Lease terminates, if an
Excess if present, Tenant shall pay such amount to Landlord within thirty (30)
days after Tenant's receipt of such final determination. If Tenant provides a
written request to Landlord within one hundred and eighty (180) days after
receipt of the Statement provided in this SECTION 4.4.1, Tenant shall be
entitled, during reasonable business hours, to review Landlord's books and
records on which Landlord has calculated Direct Expenses and shall promptly
thereafter provide its written analysis of Direct Expenses and calculation
related thereto to Landlord. Notwithstanding the foregoing, if, in performing
any such audit, Tenant discovers any errors, Tenant shall have the right to
review Landlord's books and records for the two years immediately preceding the
year in question solely for the purpose of determining whether such errors were
made in such preceding years. If Tenant's review establishes any overpayment by
Tenant, Landlord shall either, at Landlord's option, credit such amount to
Tenant's next payment of Additional Rent, or refund such amounts within thirty
(30) days after receipt of Tenant's calculations; if Tenant's review discloses
any underpayment by Tenant, Tenant shall pay such amounts within thirty (30)
days from the time it calculates, or receives the calculation of such amounts.
Tenant's audit shall be conducted by either Tenant or a certified public
accountant. Tenant's audit may not be conducted by an individual or entity that
is retained by Tenant primarily on a contingent fee basis. If, after performing
any such audit, it is determined that Landlord has overbilled Tenant by more
than 5% for the year in question, Landlord shall reimburse Tenant for its
reasonable out-of-pocket costs incurred in performing such audit. The results of
the audit shall be kept confidential by Tenant and shall remain a private matter
between Landlord and Tenant; provided however, the foregoing shall not prohibit
Tenant from disclosing any information: (i) if required by law (including,
without limitation, any security laws), (ii) if required by court order, (iii)
if required by order of governmental authority, (iv) in connection with any
dispute resolution proceeding between Landlord and Tenant, (v) to any subtenant
of the Premises who is required to pay the Operating Expenses which were subject
to such audit, or (vi) to its attorneys, accountants or auditors. Any dispute
between Landlord and Tenant concerning any item of Direct Expenses shall not
relieve Tenant of liability for payment of all other Excess amounts of Direct
Expenses. The provisions of this SECTION 4.4.1 shall survive the expiration or
earlier termination of the Lease Term.
4.4.2 STATEMENT OF ESTIMATED DIRECT EXPENSES. Landlord shall
have the right to deliver from time to time (but not more than two times with
respect to any calendar year) an expense estimate statement (the "ESTIMATE
STATEMENT") which shall set forth Landlord's reasonable estimate (the
"ESTIMATE") of what the total amount of Direct Expenses for the current or
upcoming calendar year shall be and Tenant's Share thereof. The failure of
Landlord to furnish an Estimate Statement for any calendar year shall not
preclude Landlord from enforcing its rights to collect Tenant's Share of Direct
Expenses under this ARTICLE 4, nor shall Landlord be prohibited from revising
any Estimate Statement theretofore delivered to the extent necessary; provided
however, that Landlord shall have no right to xxxx Tenant on account of Direct
Expenses
20
incurred in any calendar year later than the date that is two years after the
end of such calendar year. Upon receipt of any Estimate Statement, Tenant shall
pay, with its next installment of Base Rent due, one-twelfth of Tenant's Share
of the Direct Expenses for the then current calendar year indicated on the
Estimate Statement. Until a new Estimate Statement is furnished (which, subject
to the provisions of this SECTION 4.4.2, Landlord shall have the right to
deliver to Tenant at any time), Tenant shall continue to pay monthly, with the
monthly Base Rent installments, the monthly amount set forth in any previous
Estimate Statement delivered by Landlord to Tenant.
4.5 TAXES AND OTHER CHARGES FOR WHICH TENANT IS DIRECTLY RESPONSIBLE.
4.5.1 Tenant shall be liable for and shall pay before
delinquency taxes levied against Tenant's equipment, furniture, fixtures and any
other personal property located in or about the Premises (including without
limitation taxes levied against the Furniture, if any). If any such taxes on
Tenant's equipment, furniture, fixtures and any other personal property are
levied against Landlord or Landlord's property or if the assessed value of
Landlord's property is increased by the inclusion therein of a value placed upon
such equipment, furniture, fixtures or any other personal property and if
Landlord pays any properly assessed taxes based upon such increased assessment,
which Landlord shall have the right to do if the same are past due upon fifteen
(15) business days prior written notice to Tenant, including reasonably
satisfactory backup documentation evidencing such expenses, Tenant shall upon
thirty (30) days notice to Tenant repay to Landlord the taxes so levied against
Landlord or the proportion of such taxes resulting from such increase in the
assessment, as the case may be.
4.5.2 If, based upon the records of the tax assessing
authority, the Alterations in the Building, whether installed and/or paid for by
Landlord or Tenant and whether or not affixed to the real property so as to
become a part thereof, are assessed for real property tax purposes at a
valuation higher than the valuation at which tenant improvements conforming to
Landlord's standard tenant improvements in other space in the Project leased to
or offered to lease to other tenants, which improvements are substantially
similar to those in the Building as of the Lease Commencement Date (the
"BUILDING STANDARD"), are assessed (as reasonably determined by Landlord), then
the Tax Expenses levied against Landlord or the property by reason of such
excess assessed valuation shall be deemed to be taxes levied against personal
property of Tenant and shall be governed by the provisions of SECTION 4.5.1,
above. Similarly, if, based upon the records of the tax assessing authority,
alterations made after November 26, 2002 in other spaces within the Project
leased to tenants other than Tenant, whether or not affixed to the real property
so as to become a part thereof, are assessed for real property tax purposes at a
valuation higher than the valuation at which tenant improvements conforming to
Building Standard are assessed (as reasonably determined by Landlord), then the
Tax Expenses levied against Landlord or the property by reason of such excess
assessed valuation shall be deemed to be taxes levied against personal property
of such other tenants and shall not be included in Tax Expenses for purposes of
calculating Tenant's Share of Tax Expenses.
4.6 INTENTIONALLY OMITTED.
4.7 TENANT'S WATER COST AND ELECTRICITY COST. Tenant shall be
responsible for all water usage in the Building and shall cause the water meter
for the Building to be placed in Tenant's name on or before January 1, 2004, and
Tenant shall pay all charges for water directly
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to the supplier and/or the local distribution company. For any period that water
usage is not directly metered to Tenant as set forth above, Landlord shall have
the right to charge Tenant for Tenant's water use as reflected by the meter(s)
now in the Building, or added by Landlord or Tenant to the Building. Each floor
within the Building has two electric panels. Tenant shall be responsible for
electrical costs for the third floor of Building 3 commencing on the Rent
Commencement Date for Space A. Tenant shall be responsible for the electrical
costs for the balance of the Building on a floor by floor basis beginning on the
earlier of January 1, 2004 or the date that Tenant commences construction of any
tenant improvements or other Alterations on each such floor. On or before
January 1, 2004, Tenant shall cause both electric meters for the Building to be
placed in Tenant's name and thereafter, Tenant shall pay all charges for
electricity directly to the supplier and/or the local distribution company. For
any period that electrical usage is not directly metered to Tenant as set forth
above, Landlord shall have the right to charge Tenant for Tenant's electrical
use as reflected by the meters and submeters now in the Building, or added by
Landlord or Tenant to the Building.
4.8 TENANT'S RIGHT TO CONTRACT DIRECTLY FOR CERTAIN DIRECT EXPENSES.
Notwithstanding the foregoing, Tenant shall have the right to contract for, and
pay directly, certain operating costs for the Premises, including janitorial,
trash removal, window washing and HVAC maintenance for the Premises (the "Direct
Services"), upon written notice given to Landlord on or before September 1, with
respect to the following calendar year. Any such election shall continue in
effect unless Tenant gives written notice to Landlord prior to September 1 that
Landlord should assume responsibility for providing such services for the
following calendar year. Notwithstanding the foregoing, the parties agree that
Tenant has elected to contract for and pay directly for all janitorial services
for the Premises through and including December 31, 2004 (Tenant will be deemed
to have elected to continue to provide janitorial services for the Premises
unless Tenant gives Landlord written notice prior to September 1, 2004 that
Tenant wants Landlord to assume responsibility for providing janitorial services
for calendar year 2005). In the event that Tenant exercises such election,
notwithstanding anything to the contrary contained in this Lease, Landlord shall
have no obligation to furnish such services to Tenant, and the corresponding
costs for Xxxxxxxx 0, Xxxxxxxx 0, and any other tenanted building in the Project
(other than Building 4) shall not be included in the calculation of Operating
Expenses for Building 3.
4.8.1 COMPLAINT NOTICE. If Tenant has not elected the option
set forth in Section 4.8 within the time limit set forth therein, but is, in
good faith, reasonably dissatisfied with the quality of any Direct Services
provided by Landlord, Tenant may give written notice of such dissatisfaction
("Complaint Notice"), stating its specific complaints, that such complaints are
being made pursuant to this SECTION 4.8.1, and what changes would make the
quality of such Direct Services acceptable to Tenant, and if Landlord fails to
cause such services to meet Tenant's satisfaction within thirty (30) days after
the receipt of the Complaint Notice, then, upon an additional thirty (30) days
advance written notice to Landlord, given within sixty (60) days after the
Complaint Notice, Tenant may elect to contract directly for the Direct Services
for the Premises identified in the Complaint Notice (notwithstanding that such
election was not made within the time limit set forth in SECTION 4.8).
4.8.2 HVAC. If Tenant elects to contract for HVAC
maintenance, Tenant shall, at Tenant's sole cost and expense, and using
vendor(s) reasonably acceptable to Landlord,
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maintain a contract (the "Maintenance Contract") providing for inspection of the
HVAC system at least four times per year, and including without limitation
periodic changing of any and all filters, changing of belts, lubricating of
equipment and maintenance of operating levels of freon in accordance with
manufacturers specifications. Tenant shall deliver a copy of the Maintenance
Contract to Landlord annually. Tenant shall also, at its sole cost and expense,
pay for all repairs and replacements to the HVAC system not covered by the
Maintenance Contract. If Tenant fails to maintain the Maintenance Contract or to
perform repairs or maintenance required pursuant to this Lease, and if Tenant
fails to cure such failure within the period ("Cure Period") which is ten (10)
days after written notice from Landlord (provided however, that the Cure Period
shall be such longer period as Tenant may reasonably require to cure such
failure so long as Tenant commences to cure such failure within such ten (10)
day period and diligently prosecutes such cure to completion), Landlord is not
obligated to but may, at its sole option, obtain such Maintenance Contract
and/or make such repairs and perform such maintenance to the HVAC system as
Landlord, in its bona fide business judgment, determines to be necessary, in
which event the Tenant shall repay the reasonable cost thereof to Landlord
within thirty (30) days after demand. Further, if Tenant fails to perform any of
the foregoing services within the Cure Period, Landlord shall have the right if
Tenant fails to perform any of the foregoing services (in order to insure
uniform cleaning, maintenance of the HVAC system, preservation of the Project
and systematic and orderly refuse disposal) at its option to provide said
services for a reasonable fee to be paid by Tenant as Additional Rent. If Tenant
incurs any expenses to replace portions of the HVAC system during the two years
prior to the Lease Expiration Date (as extended in the event that Tenant
exercises one or more Options to Extend), provided that Tenant gives Landlord
written notice of the nature, date and cost of such replacements prior to
completing said replacements, then the cost of such replacements shall be
amortized over the period determined by Landlord in conformity with generally
accepted accounting principles or income tax accounting principles pursuant to
Internal Revenue Code and upon expiration of the term of the Lease, provided
that Tenant or any Affiliate of Tenant or transferee pursuant to a Permitted
Transfer does not acquire title to the Premises on or within thirty days after
the Lease Expiration Date, Landlord shall reimburse Tenant for the unamortized
cost of such replacements, minus any sums owed by Tenant to Landlord, within
thirty days after the Lease Expiration Date.
4.9 TENANT'S ADDITIONAL AIR CONDITIONING COST. Notwithstanding
anything to the contrary contained in this Lease, Tenant acknowledges that in
order to provide HVAC to various Portions of the Premises that do not constitute
full floors, as the HVAC system is currently designed, Landlord may be required
to supply HVAC to other portions of the floor by, INTER ALIA, running the second
of the two rooftop units that service that floor (rather than just the one roof
top unit that would be required if Tenant's space were demised and air
conditioning ductwork reconfigured in connection with such demising). During the
portion of the Lease Term prior to January 1, 2004, Tenant agrees that Landlord
shall have the right to submeter the roof top units, and that Tenant shall pay
to Landlord as Additional Rent, the cost of operating all roof top units
required to be run to provide HVAC to space occupied by Tenant, as reasonably
estimated by Landlord (if Landlord does not submeter said rooftop unit), or on
the basis of such meter readings (if Landlord does submeter said rooftop units).
23
ARTICLE 5
USE OF PREMISES
5.1 PERMITTED USE. Tenant shall be permitted to use the Premises for
any lawful use other than a Prohibited Use (as defined in SECTION 5.2, below),
subject to applicable laws and Tenant's obtaining all approvals required by law.
Tenant covenants that it shall not use the Premises in any manner that will
constitute an unreasonable annoyance to any occupant of the Project, or a
nuisance, or that will injure the reputation of the Project or any part thereof,
or in any manner that will knowingly violate, suspend, void or make inoperative,
any policy or policies of insurance of any kind whatsoever at any time carried
on any property, buildings or improvements in the Project or any part thereof,
including the Premises. Landlord agrees that Tenant's Initial Use, as
hereinafter defined, is not in violation of the foregoing sentence. Tenant's
Initial Use is defined as: general office use, administrative use, customer
training, biology lab, research and development, as currently conducted by
Tenant in its facility in Boxborough,
Massachusetts. If any future use of the
Premises by Tenant conflicts with Landlord's insurance, as aforesaid, then
Landlord shall use reasonable efforts to obtain insurance which will enable
Tenant to use the Premises for such use. In addition, Tenant will not use the
Premises in any manner which will cause an increase or increases of premiums on
insurance carried by Landlord on the Premises, unless Tenant pays such increase.
Landlord agrees that Tenant's Initial Use, in and of itself, will not cause an
increase in Landlord's insurance premiums. Tenant shall not exceed the
acceptable floor loading (based on design load of 100 pounds per square foot of
live load within the Building) and weight distribution requirements unless
Tenant, at the sole cost and expense of Tenant, makes any necessary Alterations
(which Alterations shall be subject to the TCCs of Articles 8 and 9 of this
Lease).
5.1.1 USE OF THE ROOF. Notwithstanding anything to the
contrary contained in this Lease, Tenant's access to and use of the roof of the
Building shall be subject to the provisions of ARTICLE 30.
5.1.2 TENANT'S ACCESS. Landlord agrees that, subject to
Landlord's reasonable security requirements and causes beyond Landlord's
reasonable control, subject to the provisions of Section 30.1.2, Tenant and its
employees and visitors shall have access to the Premises twenty-four hours per
day, seven days per week throughout the Term of this Lease.
5.2 PROHIBITED USES. So long as Tenant occupies all or a portion of
Building 3, the following uses will be prohibited in Xxxxxxxx 0, Xxxxxxxx 0 and
Building 3 unless consented to in writing by Landlord and Tenant: (i) offices of
any agency or bureau of the United States or any commonwealth or state or
political subdivision thereof that may utilize additional parking in excess of
the typical number of visitor spaces in Comparable Buildings or parking in
excess of the tenant's pro rata share of parking to accommodate public visitors,
or is principally a law enforcement agency; (ii) offices or agencies of any
foreign governmental or political subdivision thereof; (iii) offices of any
health care professionals or service organization that may utilize additional
parking in excess of the typical number of visitor spaces in Comparable
Buildings or parking in excess of the tenant's pro rata share to accommodate
public visitors; (iv) schools or other training facilities which are not
ancillary to corporate, executive or professional office use; (v) retail,
restaurant or bar uses; (vi) telemarketing or call center that would require
additional
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parking in excess of the parking allocated to such space ; (vii) collection
agency; (viii) offices for an employment agency; (ix) a warehouse, other than
for storage incidental to a business operation conducted on the same premises,
(x) music hall, cinema, theatre, auditorium, or other similar place of public
entertainment or general assembly; (xi) health/exercise spa or club or sporting
event or other sports facility; (xii) any assembly or manufacturing operation
which creates excessive noise or vibration; (xiii) a factory; (xiv) an off-track
betting club or facility, (xv) a church or other house of worship, (xvi) the
storage of explosives, or (xvii) a funeral parlor. Tenant further covenants and
agrees that Tenant shall not use, or suffer or permit any person or persons to
use, the Premises or any part thereof for any use or purpose which is contrary
to the provisions of this Lease, or which is in violation of the laws of the
United States of America, the Commonwealth of
Massachusetts, or the ordinances,
regulations or requirements of the local municipal or county governing body or
other lawful authorities having jurisdiction over the Project including, without
limitation, any such laws, ordinances, regulations or requirements relating to
Hazardous Materials as defined in Subsection 29.31.1 below.
5.3 ELECTRONIC EQUIPMENT. If Tenant installs or operates any
Electronic Equipment, as hereinafter defined, which emanates electrical waves
which interfere with or impair the operation of the Electronic Equipment of
other occupants of the Project, then Tenant shall cooperate with Landlord,
Landlord shall use reasonable efforts to cause the Existing Tenants, as
hereinafter defined, to cooperate with Tenant, and Landlord shall use reasonable
efforts to cause any New Tenants, as hereinafter defined, to cooperate with
Tenant, so that any such interference can be eliminated. Tenant acknowledges and
agrees, however, that the rights (as such rights exist on the Effective Date of
this Lease) of any Existing Tenants to operate Electronic Equipment in the
Project are superior to Tenant's right to operate Electronic Equipment in the
Project. "Electronic Equipment" shall be defined as: (a) radio receivers or
transmitters, TV receivers or transmitters, antennas, or similar devices, and
(b) antennas, aerials, wires and other electronic devices, whether located
inside or outside any building within the Project. "Existing Tenants" shall be
defined as any tenant of the Project whose lease is in force and effect as of
the Effective Date of this Lease. "New Tenants" shall be defined as any tenant
of the Project whose lease first becomes in force and effect after the Effective
Date of this Lease.
5.4 CC&RS. Tenant acknowledges that the Project, but not the
Building, may be subject to future covenants, conditions, and restrictions (the
"CC&RS"), to the extent that Landlord, in its reasonable discretion, deems
reasonably necessary or appropriate, and Tenant agrees that this Lease shall be
subject and subordinate to such CC&Rs to the extent they apply to the Building
or the Common Areas; provided, however, that this Lease shall only be
subordinate to any future CC&Rs if such CC&Rs do not materially interfere with
Tenant's use and occupancy of the Premises and, subject to the terms and
conditions of this Lease, the Common Areas. In the event of any conflict with
any future CC&R and the provisions of this Lease, the provisions of this Lease
shall control.
5.5 CONDITION OF PREMISES. Except as expressly set forth in this
Lease, Tenant has accepted, or shall accept the Premises and the Building in
their "AS IS" condition (including, but not limited to HVAC (as hereinafter
defined), mechanical, electrical, plumbing, sewer and other Building systems,
and the exterior walls, roof, parking area, landscaping and walkways) as of the
Effective Date. To Landlord's knowledge, as of the Effective Date, all
electrical, plumbing, sewer, HVAC and other Building Systems servicing the
Building and exterior walls are in good
25
operating condition. In the event that any electrical, plumbing, sewer, HVAC or
other Building Systems servicing the Building are not in good operating
condition as of the Effective Date, provided that Tenant has not performed any
Alterations to such Building Systems and Tenant gives Landlord written notice of
the nature of the problem promptly after Tenant becomes aware of such condition
and, in any event, prior to the earlier of: (i) Tenant's commencing any changes,
alterations or construction in the Building, or (ii) thirty (30) days after the
Effective Date, time being of the essence, Landlord shall cause such systems to
be placed into good operating condition. Other than as expressly set forth in
this Lease, Tenant acknowledges that neither Landlord nor any agent of Landlord
has made any representation or warranty with respect to the Premises or the
Building or with respect to the present or future suitability of any part of the
Premises or the Building for the conduct of Tenant's business or the uses
proposed by Tenant. Tenant hereby accepts the Premises, the Building, and all
improvements thereon, in their existing condition, subject to all applicable
zoning, municipal, county and state (commonwealth) laws, ordinances and
regulations governing and regulating the use of the Premises and/or the
Building, and any covenants or restrictions of record, and accepts this Lease
subject to all of the foregoing and to all matters disclosed in this Lease.
Except as expressly set forth in this Lease, Landlord shall be not be
responsible for any latent or other defect or change of condition in the
Premises or the Building or the Project whether or not such condition materially
or adversely affects Tenant's use and occupancy thereof, and the Rent hereunder
shall in no case be withheld or diminished because of any such latent or other
defect, any change in the condition thereof or the existence with respect
thereto of any violations of Applicable Laws. Notwithstanding the foregoing: (i)
Landlord hereby represents to Tenant, based solely on the title policy issued to
Landlord by First American Title Insurance Company that to Landlord's knowledge,
there are no matters of record, affecting the Premises or the Project which
would materially adversely affect Tenant's right to use the Premises as general
business offices, and (ii) Landlord is not subject to any agreement with any
tenant of the Project which would materially adversely affect Tenant's right to
use the Premises for Tenant's Initial Use, as defined in SECTION 5.1.
5.6 DEMISING PLAN. Space A and the balance of the Building are shown
on the space plan attached hereto as EXHIBIT A and hereby made a part hereof.
Tenant shall pay all costs associated with the installation of Tenant's network
and other cabling, telecommunications infrastructure, and all of its moving
costs incurred in connection with Tenant's occupancy of the Premises.
5.7 RULES AND REGULATIONS. Tenant shall comply with Landlord's
reasonable rules and regulations respecting the management, care, use and safety
of the Project, including without limitation, parking areas, landscaped areas,
walkways, elevators, loading docks, hallways and other Common Areas and
facilities of the Project provided for the common use and convenience of
tenants. Such rules and regulations are attached hereto as EXHIBIT D and may be
amended from time to time at Landlord's reasonable discretion, upon reasonable
prior written notice to Tenant (as amended from time to time, the "RULES AND
REGULATIONS"). Landlord agrees that any future Rules and Regulations shall be
reasonable and non-discriminatory in effect, and that any enforcement of all
Rules and Regulations shall be done in a reasonable, uniform and
non-discriminatory manner. In the event of any conflict between any Rules and
Regulations and the provisions of the Lease, the provisions of the Lease shall
control. Notwithstanding the foregoing, Landlord shall not have the right to
impose additional Rules and Regulations concerning Tenant's use of the Building.
26
ARTICLE 6
SERVICES AND UTILITIES
6.1 STANDARD TENANT SERVICES. Landlord shall maintain and operate the
Building in a manner consistent with other Comparable Buildings (as defined
below), and provide ingress and egress control services to the Building in a
first-class manner consistent with Comparable Buildings, shall keep the Building
Structure and Building Systems in first-class condition and repair consistent
with Comparable Buildings. (As used in this Lease, the term "COMPARABLE
BUILDINGS" means Class A office buildings which are comparable to the Building
in terms of age, quality of construction, level of service and amenities, size
and appearance and located in Southborough, Northborough, Marlborough and
Westborough,
Massachusetts.) During the Lease Term, Landlord shall provide the
following utilities and services, and the cost thereof shall be included in
Operating Expenses:
6.1.1 Landlord shall provide city water from the regular
Building outlets for drinking, lavatory and toilet purposes in the Common Areas
within the Building, subject to Tenant's obligation to pay all charges for water
usage in the Building.
6.1.2 Unless Tenant has elected to provide such services
pursuant to SECTION 4.8, above, Landlord shall provide janitorial services to
Space A and any other Space within which Tenant has commenced business
operations, such services to be performed on weekdays during the Lease Term,
excluding the dates of observation of the Holidays.
6.1.3 Landlord shall provide nonexclusive, non-attended
automatic passenger elevator service for all elevators in the Building and,
subject to closures for routine maintenance or repair, shall have one (1)
elevator available at all other times to provide service to the Premises;
provided, however, Landlord shall use reasonable efforts to schedule the timing
of such routine maintenance or repair, and shall otherwise use commercially
reasonable efforts to minimize any interference with Tenant's Permitted Use and
enjoyment of the Premises.
6.1.4 Landlord shall provide for electricity to be provided
to the two meters now located in the Building, as currently provided by National
Grid and/or Constellation NewEnergy, Inc., subject to Tenant's obligation to pay
Tenant's Electricity Charge. Tenant agrees and acknowledges that it shall be
bound by the provisions of the existing contract with Constellation NewEnergy,
Inc. with respect to the Project, and Tenant shall not have the right to select
its own service provider.
6.1.5 Unless Tenant has elected to provide such services
pursuant to SECTION 4.8, above, Landlord shall provide window washing of the
exterior and interior of all exterior windows, with frequency as reasonably
determined by Landlord.
6.1.6 Unless Tenant has elected to provide such services
pursuant to SECTION 4.8, above, Landlord shall provide disposal of garbage,
trash and refuse from the office areas of Space A and any other Space within
which Tenant has commenced business operations, (other than and excluding
Tenant's laboratories, if any) and from the Property, excluding the disposal of
Hazardous Materials (as defined in SECTION 29.31) and other hazardous or medical
wastes or
27
substances used, stored or generated by Tenant or in connection with Tenant's
use of the Premises, which materials shall be disposed of in accordance with all
Applicable Laws by Tenant at Tenant's sole cost and expense, and excluding the
disposal of any construction debris or materials used by Tenant in the
construction of tenant improvements or other Alterations. The services to be
performed by Landlord under this SECTION 6.1.6 shall be performed only on
weekdays during the Lease Term, excluding the dates of observation of the
Holidays.
6.1.7 Landlord shall provide for the clearance and removal of
snow and ice from the parking areas, driveways and walkways of the Property.
6.1.8 Landlord shall provide a security guard to patrol the
Project between the hours of 6 p.m. and 8 a.m., Monday through Thursday,
excluding Holidays, and, if requested by Tenant, Landlord shall provide a
security guard to patrol the Project during the months of October through March,
between the hours of 6 a.m. and 8 a.m. on Mondays and between the hours of 6
p.m. and 8 p.m. on Fridays, excluding Holidays.
For the purposes of this Lease the term "HOLIDAY" shall mean and refer to New
Year's Day, Presidents' Day, Memorial Day, Independence Day, Labor Day, Columbus
Day, Veterans' Day, Thanksgiving Day, day after Thanksgiving Day and Christmas
Day.
6.2 REQUIREMENTS OF TENANT. At all times during the Lease Term,
Tenant shall take all reasonable steps to ensure the proper functioning and
protection of the Building HVAC, electrical, mechanical and plumbing systems.
Tenant shall not install, operate or maintain in the Premises or in any other
area of the Building, any electrical equipment which does not bear the U/L
(Underwriters Laboratories) seal of approval, or which would overload the
electrical system or any part thereof beyond its capacity for proper, efficient
and safe operation, taking into consideration the overall electrical system and
the present and future requirements therefor in the Building. Tenant shall not
operate personal electronic devices for individual use such as coffeepots,
toasters, and/or space heaters, without Landlord's prior written approval, which
approval shall not be unreasonably withheld, conditioned or delayed.
6.3 INTERRUPTION OF USE. Except as expressly provided herein, Tenant
agrees that Landlord shall not be liable for damages, by abatement of Rent or
otherwise, for failure to furnish or delay in furnishing any service (including
telephone and telecommunication services), or for any diminution in the quality
or quantity thereof, when such failure or delay or diminution is occasioned, in
whole or in part, by breakage, repairs, replacements, or improvements, by any
strike, lockout or other labor trouble, by inability to secure electricity, gas,
water, or other fuel at the Building or Project after reasonable effort to do
so, by any riot or other dangerous condition, emergency, accident or casualty
whatsoever, by act or default of Tenant or other parties, or by any other cause;
and such failures or delays or diminution shall never be deemed to constitute an
eviction or disturbance of Tenant's use and possession of the Premises or the
Building or relieve Tenant from paying Rent with respect to the Premises or
performing any of its obligations under this Lease. Furthermore, Landlord shall
not be liable under any circumstances for a loss of, or injury to, property or
for injury to, or interference with, Tenant's business, including, without
limitation, loss of profits, however occurring, through or in connection with or
incidental to a failure to furnish any of the services or utilities as set forth
in this ARTICLE 6.
28
6.4 TENANT'S RIGHTS IN THE EVENT OF UNTENANTABILITY CAUSED BY
LANDLORD FAULT.
Notwithstanding anything to the contrary in this Lease contained:
6.4.1 If, as the result of Landlord Fault (as defined in
SECTION 6.4.3, below), the Premises, or a material portion thereof, are rendered
untenantable such that Tenant is unable to operate its business in the Premises
for a period of more than ten (10) consecutive days after Tenant gives Landlord
written notice of such condition and of Tenant's allegations that such condition
renders the Premises, or a material portion thereof, untenantable, and that
Landlord's failure to cure such conditions within said ten (10) day period shall
constitute "Landlord Fault" under SECTION 6.4 of this Lease, then Tenant's
obligation to pay Base Rent due under the Lease shall be equitably abated during
the period commencing as of the fifth day after the date that Landlord receives
such written notice (or, if earlier, on the date for which Landlord is entitled,
by reason of such condition, to receive rent interruption insurance proceeds;
provided that if Landlord does not actually receive insurance proceeds with
respect to any period of time (the "Early Period") prior to the tenth (10th) day
after Landlord's receipt of such notice, Tenant shall have no right to an
abatement of rent with respect to the Early Period, the parties hereby
acknowledging and agreeing, however, that they intend that Landlord's rent
interruption insurance shall cover the Early Period if the cause of such
untenantability is a casualty or other event covered by property insurance which
Landlord is required to carry pursuant to Section 10.6, and Landlord shall use
reasonable efforts to recover such insurance proceeds) and ending as of the date
that such condition is cured or the Premises become tenantable. The ten day
notice period under this SECTION 6.4.1 shall run concurrently with the notice
periods set forth in SECTION 6.4.3.
6.4.2 If, as the result of Landlord Fault, the Premises, or a
material portion thereof, are rendered untenantable such that Tenant is unable
to operate its business in the Premises for a period of more than ninety (90)
consecutive days after Tenant gives Landlord written notice of such condition,
then Tenant shall have the right, to be exercised upon written notice to
Landlord, to terminate this Lease, unless Landlord cures such condition within
ten days after receipt of such notice from Tenant. The ninety (90) day notice
period under this SECTION 6.4.2 shall run concurrently with the notice periods
set forth in SECTION 6.4.3
6.4.3 "LANDLORD FAULT" shall be defined as (x) Landlord's
failure to perform any maintenance, repairs or other services which Landlord is
required to provide pursuant to the provisions of this Lease within ten (10)
days after written notice from Tenant of the maintenance, repairs or other
services which are required, or (y) Landlord's breach of any other obligation of
Landlord under this Lease and Landlord's failure to cure such breach within ten
(10) days after written notice from Tenant of the nature of such breach.
6.4.4 The provisions of this SECTION 6.4 shall not apply in
the event of untenantability arising from fire, other casualty or taking (see
Articles 11 and 13).
29
ARTICLE 7
REPAIRS
7.1 LANDLORD'S OBLIGATIONS. Except as otherwise provided in this
Lease, Landlord shall maintain, repair and replace as necessary the structural
portions of the Building, including the foundation, floor/ceiling slabs, roof
membrane, roof structure, exterior walls, exterior windows, columns, beams and
shafts (including elevator shafts) (collectively, "BUILDING STRUCTURE") at its
sole cost and expense. Except as otherwise provided in this Lease, Landlord
shall also maintain, repair and replace as necessary the parking areas,
sidewalks and access roads (including snow and ice removal), landscaping,
fountains, water falls, exterior Project signage (excluding signage installed by
Tenant), exterior glass and mullions, stairs and stairwells, elevator cabs and
equipment, plazas, art work and sculptures in Common Areas (other than and
excluding any artwork or sculptures included on the Inventory List attached
hereto as EXHIBIT C), men's and women's washrooms now existing in the Building,
Building mechanical, electrical and telephone closets, and all other common and
public areas and the existing Building security, mechanical, electrical, life
safety, plumbing, sprinkler systems and HVAC systems (collectively, the
"BUILDING SYSTEMS") and all other Common Areas within the Project, and the costs
thereof shall, subject to the provisions of SECTION 4.2.2, be included in
Operating Expenses. Landlord shall undertake reasonable efforts to perform all
maintenance, repairs and replacements pursuant to this SECTION 7.1 promptly
after Landlord learns of the need for such maintenance, repairs and
replacements, but in any event within thirty (30) days after Tenant provides
written notice to Landlord of the need for such maintenance, repairs and
replacements or if such work cannot be completed within thirty (30) days despite
Landlord's commercially reasonable efforts, as promptly as possible under the
circumstances; provided, however, that in cases of emergency (i.e.,
circumstances which, if not addressed promptly, could result in material damage
to persons and property), Landlord shall perform any maintenance, repairs and
replacements as soon as reasonably practicable after it learns of the need for
such maintenance, repairs and replacements. The provisions of the immediately
preceding sentence shall not extend or delay Tenant's rights under SECTION 6.4.
7.1.1 HVAC SYSTEM. Landlord warrants that the HVAC system for
the Building shall be in good operating condition on the Effective Date. In the
event that the HVAC system servicing the Building is not in good operating
condition on the Effective Date, provided that Tenant has not performed any
Alterations to the HVAC system and Tenant gives Landlord written notice of the
nature of the problem promptly after Tenant becomes aware of such condition and,
in any event, prior to the earlier of: (i) Tenant's commencing any changes,
alterations or construction in the Building, or (ii) thirty (30) days after the
Effective Date, time being of the essence, Landlord shall cause the HVAC systems
to be placed into good operating condition within thirty days thereafter.
7.2 TENANT'S OBLIGATIONS. Tenant shall maintain the Premises and the
fixtures and appurtenances therein (other than those portions of the Premises
the maintenance of which are Landlord's responsibility in accordance with the
provisions of the Lease) in as good repair as exists on the Effective Date, at
all times, normal wear and tear, damage by fire or other casualty or eminent
domain, and damage caused by Landlord Fault excepted. Tenant shall reimburse
Landlord for all direct costs and expenses of repairing and replacing all damage
or injury to the
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Premises and the Building and to fixtures and equipment caused by Tenant or its
employees, agents, licensees, subtenants, or contractors, or as the result of
all or any of them moving in or out of the Building or by installation or
removal of furniture, fixtures or other property. Such costs and expenses shall
be collectible as Additional Rent and paid by Tenant within thirty (30) days
after rendition of a xxxx therefor. Notwithstanding anything in this Lease to
the contrary, but subject to SECTION 10.5, Tenant shall be required to reimburse
Landlord for the cost of repairing any damage to the Building Structure and/or
the Building Systems to the extent caused due to the negligence or willful
misconduct of Tenant or Tenant's agents, employees or contractors. Tenant shall,
at Tenant's own expense, pursuant to the TCCs of this Lease, including without
limitation ARTICLE 8 hereof, maintain all Alterations, Furniture and other
personal property of Tenant within the Building in good order, repair and
condition at all times during the Lease Term, subject to reasonable wear and
tear, and damage by fire or other casualty, or eminent domain, and subject to
damage caused by Landlord Fault. Except as expressly set forth in this Lease,
Tenant hereby waives any and all rights to terminate this Lease, complete
repairs, and off-set the rent as may be provided under the laws of the
Commonwealth of
Massachusetts, now or hereafter in effect.
ARTICLE 8
ADDITIONS AND ALTERATIONS
8.1 LANDLORD'S CONSENT TO ALTERATIONS. Tenant may not make any
improvements, alterations, additions or changes to the Premises or the Building
or any mechanical, plumbing or HVAC facilities or systems pertaining to the
Premises or the Building which affect the Building Structure, Building Systems
or exterior appearance of the Building (collectively, the "ALTERATIONS") without
first procuring the prior written consent of Landlord to such Alterations, which
consent shall be requested by Tenant not less than ten business (10) days prior
to the commencement thereof, and which consent shall not be unreasonably
withheld, conditioned or delayed by Landlord, provided it shall be deemed
reasonable for Landlord to withhold its consent to any Alteration which
adversely affects the Building Structure, Building Systems or exterior
appearance of the Building, unless Tenant implements such reasonable conditions
as Landlord may require to eliminate, or mitigate, to Landlord's reasonable
satisfaction, such adverse affect. Notwithstanding the foregoing sentence,
Landlord's consent shall not be required for decorative changes to the Premises,
which do not affect the Building Structure, Building Systems or exterior
appearance of the Building. Tenant shall use Landlord's mechanical, electrical
and plumbing engineer(s) for all mechanical, electrical and plumbing design(s)
for the Building, provided that the cost of the services provided by such
engineer(s) is competitive. Notwithstanding anything to the contrary, Landlord's
"consent" to any Alterations shall only constitute permission for Tenant to
proceed with the requested work, and shall not be deemed to constitute a
representation or agreement on the part of Landlord that it has reviewed the
plans and/or specifications for any such Alterations or approved the methods by
which Tenant proposes to construct or install such work. No additional locks
shall be placed upon any doors, windows or transoms in or to the Premises or the
Building, nor shall Tenant change existing locks or the mechanism thereof,
without Landlord's consent, which consent shall be given if Tenant provides to
Landlord keys and/or access cards for use only in emergency situations
threatening injury to persons and damage to property. Notwithstanding anything
to the contrary, no awnings or other projections shall be attached to the
outside walls (building perimeter) of the
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Building without Landlord's written consent, which consent may be withheld in
Landlord's sole discretion.
8.2 MANNER OF CONSTRUCTION. Tenant shall utilize only competent
contractors, subcontractors, materials, mechanics and materialmen reasonably
approved by Landlord for the construction of any Alterations, which approval
shall not be unreasonably withheld, conditioned or delayed; provided, however,
that Landlord's approval of such contractors, subcontractors, mechanics and
materialmen shall not be required or, alternatively, Tenant shall be entitled to
use its employees to make Alterations which do not affect the Building Systems
or the Building Structure (as such terms are defined in SECTION 7.1, above) so
long as Tenant complies with all other provisions of this ARTICLE 8. Upon
Landlord's request (unless Landlord waived, at the time of Landlord's consent
for any Alterations pursuant to the provisions of SECTION 8.5, below, its right
to make such request), Tenant shall, at Tenant's expense, remove such
Alterations upon the expiration or any early termination of the Lease Term;
provided however, that Tenant shall not be required to remove Alterations which
are Building Standard, as defined in SECTION 4.5.2. Tenant shall construct such
Alterations and perform such repairs in a good and workmanlike manner, in
conformance with any and all applicable federal, commonwealth, county or
municipal laws, rules and regulations and pursuant to a valid building permit,
issued by the City of Marlborough, and in conformance with Landlord's
construction requirements attached hereto as EXHIBIT L. In the event Tenant
performs any Alterations in the Building which require or give rise to
governmentally required changes to the Base Building (as defined below),
Landlord's written consent shall be required, and it shall be deemed reasonable
for Landlord to condition its consent on such changes to the Base Building being
performed at the sole cost and expenses of Tenant, and by a contractor
reasonably acceptable to Landlord. The "BASE BUILDING" shall include the
Building Structure, and the public restrooms and the systems and equipment
located in the internal core of the Building. In performing the work of any such
Alterations, Tenant shall have the work performed in such manner so as not to
obstruct access to the Project or any portion thereof, by any other tenant of
the Project, and so as not to obstruct the business of Landlord or other tenants
in the Project.
Tenant shall not use (and promptly after notice from Landlord shall cease using)
contractors, services, workmen, labor, materials or equipment that, in
Landlord's reasonable judgment, would disturb labor harmony with the workforce
or trades engaged in performing other work, labor or services in or about the
Building or the Common Areas. Tenant shall not take any action which would
violate Landlord's labor contracts affecting the Project or which would cause
any work stoppage, picketing, labor disruption or dispute, or any interference
with the business of Landlord or any other tenant or occupant of the Project or
with the rights and privileges of any person lawfully in the Project; if there
is any problem involving Tenant and other tenants, at Tenant's request, Landlord
will assist Tenant in resolving such issue, at no cost or expense to Landlord.
In addition to Tenant's obligations under ARTICLE 9 of this Lease, upon
completion of any Alterations which affect the Building Systems and/or Building
Structures, Tenant agrees to cause such notices as may be necessary to evidence
completion of any work undertaken by Tenant to be recorded in the office of the
Recorder of the County of Middlesex in accordance with the laws of the
Commonwealth of
Massachusetts or any successor statute, and Tenant shall deliver
to Landlord or Landlord's property manager a copy of the "as built" drawings of
the Alterations
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(Landlord agreeing that a copy of the drawings for such work that were submitted
to Landlord for its consent, which is marked-up by the Tenant's contractor to
show field changes, shall satisfy the requirement to deliver "as built"
drawings) as well as all permits, approvals and other documents issued by any
governmental agency in connection with the Alterations.
8.3 PAYMENT FOR IMPROVEMENTS. If payment is made directly to
contractors, Tenant shall comply with all Applicable Laws relating to final lien
releases and waivers in connection with Tenant's payment for work to
contractors. Whether or not Tenant orders any work directly from Landlord,
Tenant shall reimburse Landlord for Landlord's reasonable out-of-pocket costs
and expenses reasonably incurred in connection with Landlord's review of any
plans for Alterations submitted to Landlord on or after December 31, 2004.
8.4 CONSTRUCTION INSURANCE. In addition to the requirements of
ARTICLE 10 of this Lease, in the event that Tenant makes any Alterations, prior
to the commencement of such Alterations, Tenant shall provide Landlord with
evidence that Tenant carries "BUILDER'S ALL RISK" insurance in an amount
reasonably related to the value of such Alterations, it being understood and
agreed that all of such Alterations (other than Building Standard Alterations,
which shall be insured by Landlord as part of the property insurance for the
Building) shall be insured by Tenant pursuant to ARTICLE 10 of this Lease
immediately upon completion thereof.
8.5 LANDLORD'S PROPERTY. All Alterations (except Building Standard
Alterations), improvements, fixtures, equipment and/or appurtenances other than
Tenant's trade fixtures and equipment which may be installed or placed in or
about the Premises and/or the Building, from time to time, shall be and become
the property of Landlord upon the expiration or earlier termination of this
Lease, subject to the requirements of SECTION 8.2 and Landlord's right to
require Tenant to remove such items as provided in this SECTION 8.5. Building
Standard Alterations shall be and become the property of Landlord upon
installation. Upon the expiration or within ten (10) days after the earlier
termination of this Lease and vacation of the Premises by Tenant, Tenant may
remove any equipment or fixtures installed by Tenant other than Building
Standard Alterations, provided Tenant repairs any damage to the Premises and
Building caused by such removal and returns the affected portion of the Building
to the condition in which they were delivered to Tenant. Furthermore, subject to
the provisions of this SECTION 8.5, Landlord may, by written notice to Tenant
prior to the end of the Lease Term, or given following any earlier termination
of this Lease, require Tenant, at Tenant's expense, to remove any Alterations in
the Premises and/or the Building and to repair any damage to the Premises and
Building caused by such removal (reasonable wear and tear excepted) and return
the affected portion of the Building to Building Standard (as defined in SECTION
4.5.2, above) condition; provided, however, if, in connection with its request
for Landlord's consent for particular Alterations, (1) Tenant requests
Landlord's decision with regard to the removal of such Alterations, and (2)
Landlord thereafter agrees in writing to waive the removal requirement when
consenting to such Alterations, then Tenant shall not be required to so remove
such Alterations; provided further, however, that if Tenant specifically
requests in writing such a determination from Landlord and Landlord, in its
consent to any Alterations, fails to address the removal requirement with regard
to such Alterations, Landlord shall be deemed to have agreed to waive the
removal requirement with regard to such Alterations. Notwithstanding anything to
the contrary herein contained, Tenant shall have no obligation to remove any
Alterations which are Building Standard. If Tenant is required to remove
Alterations, but fails to complete such removal and/or to repair any
33
damage caused by the removal of any Alterations in the Building and return the
affected portion of the Building to Building Standard condition, then Landlord
may do so and may charge the cost thereof to Tenant, and Tenant shall reimburse
Landlord for such costs within ten (10) days after receipt of Landlord's invoice
therefore. At all times during the Term of this Lease, Tenant shall be entitled
to remove, and Landlord shall have no interest in, Tenant's trade fixtures and
equipment.
8.6 ROOF. Notwithstanding anything to the contrary contained in this
Lease, Tenant shall not be permitted to penetrate the roof of the Building
without Landlord's prior written consent, which consent shall not be
unreasonably withheld, but may be conditioned upon, among other things, such
work being performed by a contractor approved by Landlord (which approval shall
not be unreasonably withheld) and/or in a manner that will not void or impair
any roof warranty that may then exist. Tenant shall be responsible for the
repair of roof leaks caused by such penetration even though Tenant has obtained
Landlord's written consent thereto.
ARTICLE 9
COVENANT AGAINST LIENS
Tenant shall keep the Project and Building free from any liens or
encumbrances arising out of the work performed, materials furnished or
obligations incurred by or on behalf of Tenant, and shall protect, defend,
indemnify and hold Landlord harmless from and against any claims, liabilities,
judgments or costs (including, without limitation, reasonable attorneys' fees
and costs) arising out of same or in connection therewith. Tenant shall remove
any such lien or encumbrance by bond or otherwise within ten (10) days after
notice by Landlord, and if Tenant shall fail to do so, Landlord may bond over
such lien or encumbrance, without being responsible for investigating the
validity thereof. The amount paid by Landlord (to obtain the bond and/or if the
bond is collected upon) shall be deemed Additional Rent under this Lease payable
by Tenant within thirty (30) days of demand, without limitation as to other
remedies available to Landlord under this Lease. Nothing contained in this Lease
shall authorize Tenant to do any act which shall subject Landlord's title to the
Building or Premises to any liens or encumbrances whether claimed by operation
of law or express or implied contract.
ARTICLE 10
INSURANCE
10.1 INDEMNIFICATION AND WAIVER. As between Landlord and Tenant,
Tenant hereby assumes all risk of damage to property or injury to persons in,
upon or about the Building from any cause whatsoever and agrees that Landlord,
its partners, subpartners and their respective officers, agents, servants,
employees, and independent contractors (individually, a "LANDLORD PARTY", and
collectively (including Landlord), "LANDLORD PARTIES") shall not be liable for,
and are hereby released from any responsibility for, any damage either to person
or property or resulting from the loss of use thereof, which damage is sustained
by Tenant or by other persons claiming through Tenant, except, subject to
SECTION 10.5, to the extent such damage results from the negligent acts or
omissions or willful misconduct of a Landlord Party, or from Landlord's failure
to perform its obligations under this Lease. Subject to SECTION 10.5, Tenant
shall
34
indemnify, defend, protect, and hold harmless the Landlord Parties from any and
all loss, cost, damage, expense and liability (including without limitation
reasonable court costs and reasonable attorneys' fees) incurred in connection
with or arising from any cause in the Building, and to the extent arising from
the negligent act or omission of Tenant or of any person claiming by, through or
under Tenant, or of the contractors, agents, servants, employees or licensees of
Tenant or any such person, in, on or about the Project, either prior to, during,
or after the expiration or earlier termination of the Lease Term, except to the
extent such damage results from the negligent acts or omissions or willful
misconduct of any Landlord Party, or from Landlord's failure to perform its
obligations under this Lease. Subject to SECTION 10.5, Landlord shall indemnify,
defend, protect, and hold harmless Tenant and its officers, agents, employees
and contractors from any and all loss, cost damage, expense and liability
(including without limitation court costs and reasonable attorneys' fees) to the
extent arising from the negligent acts or omissions or willful misconduct of
Landlord, its agents, employees and contractors in, on or about the Project,
except to the extent such damage results from the negligent acts or omissions or
willful misconduct of Tenant, its agents, employees and contractors or from
Tenant's failure to perform its obligations under this Lease. Further,
Landlord's and Tenant's agreements to indemnify pursuant to this SECTION 10.1
are not intended and shall not relieve any insurance carrier of its obligations,
to the extent such policies cover the matters subject to the foregoing
indemnification obligations; nor shall they supersede any inconsistent agreement
of the parties set forth in any other provision of this Lease. The provisions of
this SECTION 10.1 shall survive the expiration or sooner termination of this
Lease with respect to any claims or liability arising in connection with any
event occurring prior to such expiration or termination.
10.2 TENANT'S COMPLIANCE WITH LANDLORD'S FIRE AND CASUALTY INSURANCE.
Tenant shall, at Tenant's expense, comply with all insurance company
requirements pertaining to the use of the Premises and the Building to the
extent such requirements are provided by Landlord to Tenant in writing; provided
however, that Tenant shall not be required to make any alterations to the
Premises or the Building in order to comply with such requirements except to the
extent that the same are based on a use of the Premises or Building by Tenant
which is other than general office purposes. If Tenant's conduct or use of the
Premises or the Building for other than general office purposes causes any
increase in the premium for such insurance policies then Tenant shall reimburse
Landlord for any such increase within thirty (30) days after receipt of
Landlord's written demand; provided, however, that Landlord shall provide
reasonably sufficient documentation or other evidence to Tenant that its use and
occupancy of the Premises or Building caused such increase in connection with
any demand for payment. If the conduct or use of any other portion of the
Project by other tenants of the Project for other than general office purposes
causes any increase in the premium for such insurance policies then such
increases shall not be included in Operating Expenses under this Lease. Tenant,
at Tenant's expense, shall comply with all rules, orders, regulations or
requirements of the American Insurance Association (formerly the National Board
of Fire Underwriters) and with any similar body; provided however, that Tenant
shall not be required to make any alterations to the Premises in order to comply
with such requirements except to the extent that the same are based on a use of
the Premises or Building by Tenant which is other than general office purposes.
The provisions of this SECTION 10.2 are subject to the provisions of the last
two sentences of SECTION 5.1.
10.3 TENANT'S INSURANCE. Tenant shall maintain the following coverages
in the following amounts.
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10.3.1 Commercial General Liability Insurance covering the
insured against claims of bodily injury, personal injury and property damage
(including loss of use thereof) arising out of Tenant's operations, and
contractual liabilities (covering the performance by Tenant of its indemnity
agreements) including the equivalent of the coverage provided by a Broad Form
endorsement covering the insuring provisions of this Lease and the performance
by Tenant of the indemnity agreements set forth in SECTION 10.1 of this Lease,
for limits of liability not less than:
Bodily Injury and $5,000,000 each occurrence
Property Damage Liability $5,000,000 annual aggregate
Personal Injury Liability $5,000,000 each occurrence
$5,000,000 annual aggregate
At any time during the lease Term, but not more than once every three years, the
limits set forth above may be increased by Landlord to limits then being
required by landlords of Comparable Buildings.
10.3.2 Property Insurance covering (i) any Alterations to the
Building pursuant to Article 8 that are in excess of Building Standard (as
defined in SECTION 4.5.2, above) and (ii) Tenant's personal property, trade
fixtures and equipment in the Building at 100% replacement cost. Such insurance
shall be written on an "all risks" of physical loss or damage basis, for the
full replacement cost value (subject to reasonable deductible amounts) new
without deduction for depreciation of the covered items and in amounts that meet
any co-insurance clauses of the policies of insurance and shall include coverage
for damage or other loss caused by fire or other peril including, but not
limited to, vandalism and malicious mischief, theft, water damage of any type,
including sprinkler leakage, bursting or stoppage of pipes, and explosion.
10.3.3 Worker's Compensation pursuant to all applicable
commonwealth, state and local statutes and regulations, with statutory limits
and Employer's Liability insurance with minimum limits of $500,000.00.
10.4 FORM OF POLICIES. The minimum limits of policies of insurance
required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease. Tenant's liability insurance shall (i) name Landlord,
Landlord's lender and Landlord's managing agent, if any, as an additional
insured; (ii) be written on occurrence form, and specifically cover the
liability assumed by Tenant under this Lease, including, but not limited to,
Tenant's obligations under SECTION 10.1 of this Lease; (iii) be issued by an
insurance company having a rating of not less than A-VII in Best's Insurance
Guide and licensed to do business in the Commonwealth of Massachusetts; (iv) be
primary insurance to the extent covering claims for which Tenant is required to
indemnify Landlord pursuant to SECTION 10.2 and as to all claims arising within
the Premises and/or the Building, and provide that any insurance carried by
Landlord is excess and is non-contributing with any insurance requirement of
Tenant; and (v) provide that said insurance shall not be canceled or coverage
reduced unless ten (10) days' prior written notice shall have been given to
Landlord. Tenant shall deliver evidence of such coverage to Landlord on or
before the Lease Commencement Date and at the time of any renewal thereof. In
the event Tenant shall fail to procure such insurance, or to deliver such
evidence, including a certificate of insurance,
36
Landlord may, at its option, if Tenant fails to provide evidence of such
insurance within five (5) business days after notice from Landlord, procure such
policies for the account of Tenant, and the cost thereof shall be paid to
Landlord within thirty (30) days after delivery to Tenant of bills therefor.
10.5 SUBROGATION. With respect to all casualty insurance carried, or
required, by the parties hereunder, Landlord and Tenant shall cause their
insurers to waive, and Landlord and Tenant hereby expressly waive, all rights of
subrogation in their respective insurance policies during the Lease Term as
against the other party (and the waivers by Landlord and its insurance company
shall in favor of Tenant shall also run in favor of any permitted subtenants and
licensees, provided that any such subtenant and licensee also waives its
subrogation rights against Landlord). The parties agree that their respective
insurance policies, which include a waiver of subrogation provision, shall not
affect the right of the insured to recover thereunder. Each party hereby waives
any claims which it has against the other party (and the waiver by Landlord
shall in favor of Tenant shall also run in favor of any permitted subtenants and
licensees, provided that any such subtenant and licensee also waives its
subrogation rights against Landlord) for damage to property, even if caused by
the negligence of such party, or its agents, employees, or contractors, to the
extent that such damage is (or would be) covered by insurance which is required
to be carried under this Article 10.
10.6 LANDLORD'S INSURANCE. Landlord shall insure the Building
(including the Building Structure, Building Systems, and all Building Standard
improvements and Alterations), the Furniture and the other improvements in the
Project during the Lease Term against loss or damage due to fire and other
casualties covered within the classification of fire and extended coverage. Such
coverage shall be in such amounts, from such companies, and on such other terms
and conditions, as Landlord may from time to time reasonably determine, and
after considering the coverages maintained by Comparable Buildings and may
include such other and additional coverages as are maintained by owners of
Comparable Buildings and/or as are required by mortgagees of Comparable
Buildings. Said insurance deductible shall not exceed commercially reasonable
limits, which Landlord and Tenant agree shall be $50,000 during the portion of
the Term ending October 31, 2004; thereafter, Landlord may increase said
deductible in its reasonable business judgment provided that the deductible is
not greater than the greater of: (i) the deductible for similar insurance on
Comparable Buildings, or (ii) the deductible applicable to the policy held by
Landlord if such policy is a blanket policy covering at least 1,000,000 square
feet of office building space that is not within the Project but that is owned
by Landlord or one of more affiliates of Landlord. Additionally, at the sole
option of Landlord, such insurance coverage may include the risk of flood damage
and additional hazards, rental interruption insurance and/or a rental loss
endorsement and one or more loss payee endorsements in favor of the holders of
any mortgages or deeds of trust encumbering the interest of Landlord in the
Building or the ground or underlying lessors of the Building, or any portion
thereof. Landlord shall maintain a Commercial General Liability Insurance policy
covering the insured against claims of bodily injury and personal injury, for
limits of liability not initially less than $5,000,000 each occurrence and
$5,000,000 annual aggregate for each of bodily injury and personal injury, with
said limits to be increased in the same manner as any increase in the limits set
forth in SECTION 10.3.1, above.
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ARTICLE 11
DAMAGE AND DESTRUCTION
11.1 REPAIR OF DAMAGE BY LANDLORD. Tenant shall notify Landlord of any
damage to, or affecting, the Premises or the Building resulting from fire or any
other casualty, promptly after Tenant becomes aware of such damage. Landlord
shall, within thirty (30) days if only one floor of the Building has been
damaged (i.e. all damage is confined to one floor and the other two floors are
not damaged) and the cost to repair is not more than $500,000.00 ("MINOR
DAMAGE"), or sixty (60) days if more one full floor of the Building has been
damaged or the cost to repair is over $500,000.00 ("MAJOR DAMAGE"), after
Landlord receives such notice from Tenant, deliver to Tenant a reasonable
estimate ("RESTORATION PERIOD ESTIMATE") from a reputable contractor, of the
date by which the repair and restoration necessary as a result of such fire or
other casualty can be substantially completed. Subject to the provisions of
SECTIONS 11.2 and 11.3 below, if the Premises, the Building or any Common Areas
serving or providing access to the Premises shall be damaged by fire or other
casualty, Landlord shall promptly and diligently, to the extent of insurance
proceeds made available to Landlord specifically for such repair, and subject to
reasonable delays for insurance adjustment, delays caused by Tenant, and other
delays due to Force Majeure, and subject to all other TCCs of this ARTICLE 11,
restore the Premises, the Building and such Common Areas to substantially the
same condition as when possession was initially delivered to Tenant, except for
modifications required by zoning and building codes and other Applicable Laws;
provided, however, Landlord shall not be required to rebuild, restore, repair or
replace Tenant's Alterations (other than Building Standard Alterations) or other
improvements, alterations and additions (other than Building Standard
Alterations), inventory, fixtures, furniture, furnishings, floor coverings
(other than Building Standard floor coverings), equipment and other personal
property. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or its visitors, or injury to Tenant's business resulting in any way from
such damage or the repair thereof; provided however, that if such fire or other
casualty shall have damaged the Premises or Common Areas necessary to Tenant's
occupancy, Landlord shall allow Tenant an equitable abatement of Rent to the
extent Tenant is unable to operate its business in the Premises continuing until
such time as any restoration or repairs which Landlord is required to undertake
are restored substantially completed, regardless of whether Landlord is
reimbursed from the proceeds of rental interruption insurance purchased or
required to be purchased by Landlord as part of Operating Expenses, during the
time and to the extent the Premises are unfit for occupancy for the purposes
permitted under this Lease, and not occupied by Tenant as a result thereof;
provided, further, however, that if the damage or destruction is due to the
negligence or intentional misconduct of Tenant, Tenant shall be responsible for
any reasonable, applicable insurance deductible (which shall be payable to
Landlord within thirty (30) days of demand).
11.1.1 TENANT'S OBLIGATION TO REPAIR. Upon the occurrence of
any damage to the Premises, upon notice (the "LANDLORD REPAIR NOTICE") to Tenant
from Landlord, provided this Lease has not terminated as provided in this
ARTICLE 11, and provided that Landlord is repairing or restoring the Premises as
set forth above, Tenant shall, subject to SECTION 11.2, proceed to restore and
repair any injury or damage to the Alterations (other than Building Standard
Alterations), trade fixtures and equipment, which have been completed or
installed by or on behalf of Tenant, to the extent that Tenant determines that
the same are necessary for
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Tenant's business, in accordance with ARTICLE 8 of this Lease, in the Premises
and shall return such Alterations, trade fixtures and equipment to substantially
the same condition as existed prior to the casualty, except for modifications
required by zoning and building codes and other Applicable Laws. Following
delivery of a Landlord Repair Notice, prior to the commencement of construction,
subject to SECTION 11.2, Tenant shall submit to Landlord, for Landlord's review
and approval (which approval shall not be unreasonably withheld), all plans,
specifications and working drawings relating thereto, and Landlord shall review
and approve or disapprove such plans and specifications and Tenant's contractors
to be used for such work pursuant to the provisions of ARTICLE 8.
11.1.2 TENANT'S RIGHT TO TERMINATE. If, based upon the
Restoration Period Estimate, the estimated date by which Landlord would
substantially complete repairs and restoration will be later than the date that
is twelve (12) months after the date of the Restoration Period Estimate, so long
as the damage was not caused by the gross negligence or intentional misconduct
of Tenant or any Tenant Parties, Tenant shall have the right, which shall be
exercisable by written notice given by Tenant to Landlord on or before the date
that is thirty (30) days after Tenant receives the Restoration Period Estimate
(the period ending on the last day of said thirty (30) day period is referred to
herein as "TENANT'S TERMINATION PERIOD"), as its sole and exclusive remedy under
this Lease unless Landlord has not acted in good faith, to terminate this Lease,
effective not more than ninety (90) days after the date of such notice from
Tenant. If Tenant does not give notice of its election to terminate within the
Tenant's Termination Period, Tenant will be deemed to have waived the right to
terminate set forth in this Section 11.1.2.
11.2 LANDLORD'S OPTION TO REPAIR. Notwithstanding the TCCs of
SECTION 11.1 of this Lease, Landlord may elect not to rebuild and/or restore the
Premises, and instead terminate this Lease (or the applicable portion thereof),
by notifying Tenant in writing of such termination ("LANDLORD'S TERMINATION
NOTICE") within the latest of: (x) forty-five (45) days after the date of
discovery of the damage, or (y) thirty (30) days after the date of the
Restoration Period Estimate, or (z) ten business days after the expiration of
the Tenant's Termination Period, (such latest date, the "LANDLORD'S TERMINATION
DATE") such notice to include a termination date giving Tenant sixty (60) days
to vacate the Premises, but Landlord may so elect only if the Premises or any
Common Areas serving or providing access to the Premises shall be damaged by
fire or other casualty or cause, if one or more of the following conditions is
present:
(i) the damage is caused by a peril or cause which is not covered by
Landlord's insurance policies (and/or would not be covered by the policies
Landlord is required to carry pursuant to this Lease) and, in Landlord's
reasonable judgment, the cost to repair the damage exceeds $1,500,000 (such
amount, the "Uninsured Loss"), provided, however, if Tenant agrees to pay
for the Uninsured Loss, and deposits such sum with Landlord's mortgagee (or
if there is no mortgagee, with a mutually acceptable escrow agent) within
ten (10) business days after Tenant receives Landlord's notice of
termination, then Landlord shall not have the right to elect not to rebuild
or restore and to terminate the Lease based on this subsection (i); or
(ii) the damage occurs during the last twenty-four (24) months of the Lease
Term, provided, however, if the damage occurs during the last twenty-four
(24) months of the Lease Term, and Tenant has an Option to Extend under
SECTION 2.2 that has not yet been
39
exercised, and Tenant exercises such option, and waives its right to
withdraw such exercise after the determination of the PMRR as set forth in
SECTION 3.1.1, by written notice given to Landlord within ten (10) business
days after Tenant receives Landlord's notice of termination, then Landlord
shall not have the right to elect not to rebuild or restore and to
terminate the Lease based on this subsection (ii); or
(iii) with respect to any Major Damage, the damage occurs within
twenty-four (24) months prior to the maturity date of the first mortgage on
the Premises and Landlord's mortgagee does not permit adequate insurance
proceeds to be applied to the rebuilding or repair of the Building or
Project, provided, however, (A) if, prior to the Landlord's Termination
Date, Landlord gives Tenant written notice that it intends to attempt to
obtain alternate financing to finance the rebuilding or restoration, the
Landlord's Termination Date shall be extended for an additional six months
after the latest date set forth in subclauses 11.2 (x) through (z) above,
and if Landlord does not elect to terminate at the end of said the time
period, the time period for repair shall be measured from the Landlord's
Termination Date as extended, and/or (B) if Landlord does not elect to
obtain alternate financing as set forth in clause (A) above, Tenant, may
elect, by written notice to Landlord within ten (10) business days after
Tenant receives Landlord's Termination Notice, to provide the funds
required for Landlord to perform such repairs, and provided that Tenant
deposits such funds with Landlord's mortgagee (or if there is no mortgagee,
with a mutually acceptable escrow agent) within ten (10) business days
after Tenant receives Landlord's Termination Notice, then Landlord shall
not have the right to elect not to rebuild or restore and to terminate the
Lease based on this subsection (iii). All such funds provided by Tenant
shall be deemed to be an advance payment of Rent and shall be secured by a
second mortgage on the Premises, with recourse under said mortgage limited
to the Premises and the proceeds thereof, bearing interest at a rate
comparable to the market rate for similar loans, and otherwise said
mortgage shall be in form and substance reasonably satisfactory to
Landlord, Tenant and Landlord's first mortgagee; Landlord shall repay such
sums if it refinances the first mortgage on the Premises, and may at its
option, but without any obligation to do so, repay such funds to Tenant in
on or more lump sum payments prior to such refinancing, and so long as any
portion of such sums remain payable to Tenant, Tenant may offset Rent
coming due under this Lease against said amounts until Tenant has been
repaid in full.
Notwithstanding the foregoing, if Landlord exercises its right to terminate the
Lease pursuant to SECTION 11.2, but Tenant is occupying a portion of the
Premises despite the casualty damage, Tenant shall have the right to extend the
effective termination date of the Term to a date designated by Tenant which is
not later than the date ("Extended Effective Termination Date") which is thirty
(30) days after the date which the Term would otherwise have terminated pursuant
to SECTION 11.2. Tenant may exercise such right by giving written notice to
Landlord on or before the date thirty (30) days after Tenant receives Landlord's
termination notice.
11.3 TIME FOR REPAIR. If neither Tenant nor Landlord elects to
terminate this Lease pursuant to the termination rights set forth in SUBSECTION
11.1.2 or SECTION 11.2, respectively (if applicable), then, except as set forth
in SUBSECTION 11.3.1, Landlord shall substantially complete such repairs within:
twelve (12) months for Major Damage, or six (6) months in the case of Minor
Damage, or, in either case, such longer period as may be set forth in the
Restoration
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Period Estimate (the applicable time period for substantial completion of such
repairs and/or restoration is referred to herein as the "REPAIR PERIOD") after
the earlier of the expiration of the Tenant's Termination Period or receipt of
written notice from Tenant that it is waiving its right to terminate pursuant to
SECTION 11.1.2 above, subject to delays due to Force Majeure, not to exceed six
months for Major Damage and not to exceed three months for Minor Damage, and
subject to delays caused by Tenant, and, if Section 11.2 is applicable, subject
to extension for any period prior to Landlord's Termination Date and/or prior to
the date on which Landlord receives written notice from Tenant canceling
Landlord's Termination Notice. If the repairs to be made by Landlord are not
actually substantially completed within the applicable Repair Period, as
extended for the period of time ("EXCUSED DELAY PERIOD") that Landlord is
delayed as the result of either Force Majeure delays (not to exceed three months
for Minor Damage, or six months for Major Damage), and/or delays in insurance
adjustment as reasonably demonstrated by Landlord to Tenant, and/or delays
caused by Tenant, Tenant shall have the right, as its sole and exclusive remedy
unless Landlord has not acted in good faith, to terminate this Lease by
providing written notice to Landlord (the "DAMAGE TERMINATION NOTICE"), such
termination to be effective on a date (the "DAMAGE TERMINATION DATE") set by
Tenant in such Damage Termination Notice that is not more than one hundred and
twenty (120) days after Landlord's receipt of the Damage Termination Notice;
provided, however, that Landlord shall have the right to suspend the occurrence
of the Damage Termination Date for a period of thirty (30) days after the Damage
Termination Date by delivering to Tenant, on or before the Damage Termination
Date, a certificate of Landlord's contractor responsible for the repair of the
damage certifying that it is such contractor's good faith judgment that the
repairs to be made by Landlord shall be substantially completed within thirty
(30) days after the Damage Termination Date. If such repairs shall be
substantially completed prior to the expiration of such thirty-day period, then
the Damage Termination Notice shall be of no force or effect, but if such
repairs shall not be substantially completed within such thirty (30) day period,
then this Lease shall terminate upon the Damage Termination Date. In no event
shall the Excused Delay Period exceed three months, plus any periods of delay
caused by Tenant.
As used in this Article 11, "substantially complete", "substantially completed"
and/or "substantial completion" shall mean (i) that the required repairs or
renovations have been completed in accordance with the final plans and
specifications, subject to certain minor punch list items which shall be therein
specifically noted and which shall not adversely affect Tenant's ability to use
and occupy the Premises for their intended purposes, or (ii) a certificate of
occupancy (either final or temporary) or similar certificate or permit is issued
by the appropriate governmental authority having jurisdiction over the Premises
whereby Tenant is permitted to use and occupy the Premises for the purposes
described in SECTION 5.1 hereof.
11.4 WAIVER OF STATUTORY PROVISIONS. The provisions of this Lease,
including this Article 11, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any part
of the Premises, the Building or the Project, and any statute or regulation of
the Commonwealth of Massachusetts, with respect to any rights or obligations
concerning damage or destruction in the absence of an express agreement between
the parties, and any other statute or regulation, now or hereafter in effect,
shall have no application to this Lease or any damage or destruction to all or
any part of the Premises, the Building or the Project.
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ARTICLE 12
NON-WAIVER
No provision of this Lease shall be deemed waived by either party hereto
unless expressly waived in a writing signed thereby. The waiver by either party
hereto of any breach of any term, covenant or condition herein contained shall
not be deemed to be a waiver of any subsequent breach of same or any other term,
covenant or condition herein contained. The subsequent acceptance of Rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular Rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
Rent. No acceptance of a lesser amount than the Rent herein stipulated shall be
deemed a waiver of Landlord's right to receive the full amount due, nor shall
any endorsement or statement on any check or payment or any letter accompanying
such check or payment be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the full amount due. No receipt of monies by Landlord from Tenant after the
termination of this Lease shall in any way alter the length of the Lease Term or
of Tenant's right of possession hereunder, or after the giving of any notice
shall reinstate, continue or extend the Lease Term or affect any notice given
Tenant prior to the receipt of such monies, it being agreed that after the
service of notice or the commencement of a suit, or after final judgment for
possession of the Premises, Landlord may receive and collect any Rent due, and
the payment of said Rent shall not waive or affect said notice, suit or
judgment.
ARTICLE 13
CONDEMNATION
13.1 CONDEMNATION. If the whole or any part of the Premises, Building
or Project shall be taken by power of eminent domain or condemned by any
competent authority for any public or quasi-public use or purpose, or if any
adjacent property or street shall be so taken or condemned, or reconfigured or
vacated by such authority in such manner as to require the use, reconstruction
or remodeling of any part of the Premises, Building or Project, or if Landlord
shall grant a deed or other instrument in lieu of such taking by eminent domain
or condemnation as a result thereof, and if as a result thereof Tenant cannot
conduct its business operations in substantially the same manner such business
operations were conducted prior to such taking while still retaining
substantially the same material rights and benefits it bargained to receive
under this Lease, Tenant shall have the option to terminate this Lease on ninety
(90) days notice to Landlord effective as of the date possession is required to
be surrendered to the authority. Tenant shall exercise such termination right,
if at all, within thirty (30) days after the earlier of: (i) the date Tenant
gives Landlord notice of such taking, or (ii) receipt by Tenant of written
notice from Landlord advising Tenant of such taking. Tenant shall not because of
such taking assert any claim against Landlord or the authority for any
compensation because of such taking and Landlord shall be entitled to the entire
award or payment in connection therewith, except that Tenant shall have the
right to file any separate claim available to Tenant for any taking of Tenant's
personal property and fixtures belonging to Tenant and removable by Tenant upon
expiration of the Lease Term pursuant to the TCCs of this Lease, and for moving
expenses, so
42
long as such claims do not diminish the award available to Landlord or its
ground lessor, if any, with respect to the Building or Project, or its
mortgagee, and such claim is payable separately to Tenant. All Rent shall be
apportioned as of the date of such termination. If any part of the Premises
shall be taken, and this Lease shall not be so terminated, the Rent shall be
proportionately abated. Notwithstanding anything to the contrary contained in
this ARTICLE 13, in the event of a temporary taking of all or any portion of the
Premises for a period of sixty (60) days or less, then this Lease shall not
terminate but the Base Rent and the Additional Rent shall be abated for the
period of such taking in proportion to the ratio that the amount of rentable
square feet of the Premises taken bears to the total rentable square feet of the
Premises. Subject to SECTION 13.2 below, Landlord shall be entitled to receive
the entire award made in connection with any such temporary taking. Landlord and
Tenant hereby waive the provisions of any statutes or other laws relating to the
termination of leases in the event of condemnation, and agrees that the rights
and obligations of the parties in such event shall be governed by the terms of
this Lease.
13.2 TENANT'S RIGHT TO AWARD. Subject to the provisions of SECTION
13.1 above, Tenant shall have the right to claim and recover (i) any sum awarded
to Tenant for damages to or loss of Tenant's business, and (ii) such
compensation as may be separately awarded or recoverable by Tenant on account of
any and all costs or losses related to removing Tenant's merchandise, furniture,
fixtures, leasehold improvements, and equipment to a new location, so long as
such claims do not diminish the award available to Landlord or its ground
lessor, if any, with respect to the Building or Project, or its mortgagee, and
such claim is payable separately to Tenant. Notwithstanding anything to the
contrary herein contained, in the event that Tenant exercises the option set
forth in Section 13.1 to terminate this Lease, then Tenant shall have the right
to claim and recover for Covered Alterations (as defined below) as follows: (i)
any claim payable separately to Tenant shall be payable only so long as such
claim does not diminish the award available to Landlord, its ground lessor, if
any, and/or its mortgagee; and (ii) if there is a single award, then the award
allocable to the Premises, after deduction of all reasonable costs, including
without limitation, costs to restore, if applicable, and reasonable attorney's
fees, incurred by Landlord in establishing said claim and collecting said award,
shall be allocated between Landlord's (and its mortgagee's) interest and
Tenant's interest as follows and in the following order : (1) first, the entire
claim of any mortgagee shall be paid; (2) second, Landlord shall be reimbursed
for the fair market value of its interest in Premises (less the amount of the
principal of any mortgage paid to mortgagee pursuant to clause (1)); (3) third,
Tenant shall be reimbursed for the unamortized portion of the cost of any
Alterations paid for solely by Tenant ("Covered Alterations"), amortized over
the Initial Term of the Lease; and (4) the balance of the award, if any shall be
paid to Landlord.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 TRANSFERS. Tenant shall not mortgage, pledge, hypothecate,
encumber, or permit any lien to attach to this Lease or any interest hereunder
without the prior written consent of Landlord, which consent may be withheld in
Landlord's sole discretion. Provided that Landlord has not, in good faith, given
Tenant notice of termination of this Lease (whether or not Tenant is contesting
said termination), as of the date of Tenant's notice to Landlord and/or as of
the
43
effective date of such assignment or subletting, Tenant will have the right,
with Landlord's consent, which shall not be unreasonably withheld, conditioned
or delayed, to assign this Lease, permit any assignment, or other transfer of
this Lease by operation of law, sublet the Premises or any part thereof, or
enter into any license or concession agreements or otherwise permit the
occupancy or use of the Premises or any part thereof by any persons other than
Tenant and its employees and contractors (all of the foregoing are hereinafter
sometimes referred to collectively as "Transfers" and any person to whom any
Transfer is made or sought to be made is hereinafter sometimes referred to as a
"Transferee"). Notwithstanding anything to the contrary contained in this Lease,
Tenant agrees that no partial assignment of this Lease shall be permitted
without the express written consent of Landlord, which consent may be withheld
in the sole and absolute discretion of Landlord, and any attempt by Tenant to
make a partial assignment of this Lease, or any interest in this Lease, in
violation of this sentence shall be null and void.
14.2 LANDLORD'S CONSENT. If Tenant desires Landlord's consent to any
Transfer, Tenant shall notify Landlord in writing, which notice (the "Transfer
Notice") shall include (i) the proposed estimated effective date of the
Transfer, (ii) a description of the portion of the Premises to be transferred
(the "Subject Space"), (iii) all of the TCCs of the proposed Transfer and the
consideration therefor, including calculation of the "Transfer Premium," as that
term is defined in SECTION 14.3 below, in connection with such Transfer, (iv)
the name and address of the proposed Transferee, and a copy of all existing
executed and/or proposed documentation pertaining to the proposed Transfer,
including all existing operative documents to be executed to evidence such
Transfer or the agreements incidental or related to such Transfer, (v) current
financial statements of the proposed Transferee certified by an officer, partner
or owner thereof, business credit and personal references and history of the
proposed Transferee and any other information required by Landlord which will
enable Landlord to determine the financial responsibility, character, and
reputation of the proposed Transferee, nature of such Transferee's business and
proposed use of the Subject Space, and (vi) an executed estoppel certificate
from Tenant in the form attached hereto as EXHIBIT E. Any Transfer made without
Landlord's prior written consent shall, at Landlord's option, be null, void and
of no effect, and shall, at Landlord's option, constitute a default by Tenant
under this Lease. Whether or not Landlord consents to any proposed Transfer,
Tenant shall, within thirty (30) days after written request by Landlord,
reimburse Landlord for its attorneys' fees and other review costs in connection
with the proposed Transfer, up to a maximum of $1,000 per transaction. The
provisions of this SECTION 14.1 shall not apply to any Transfer permitted
pursuant to SECTION 14.5, below.
14.2.1 GROUNDS FOR WITHHOLDING CONSENT. Without limitation as
to other reasonable grounds for withholding consent, the parties hereby agree
that it shall be reasonable under the Lease for Landlord to withhold consent to
any proposed Transfer where one or more of the following apply (i) the
Transferee intends to use the Premises for purposes not permitted under the
Lease; (ii) the proposed Transferee is an existing tenant of the Project, and
Landlord has comparable space available in the Project; and/or (iii) the parking
requirements of the proposed use exceed the pro rata parking allocable to the
Subject Space based on the rentable square footage of the Subject Space.
14.2.2 If Landlord consents to any Transfer pursuant to the
TCCs of this SECTION 14.2, Tenant may enter into such Transfer of the Premises
or portion thereof, upon substantially the same terms and conditions as are set
forth in the Transfer Notice furnished by
44
Tenant to Landlord pursuant to SECTION 14.2 of this Lease, provided that if
there are any material changes in the terms and conditions from those specified
in the Transfer Notice such that Landlord would initially have been entitled to
refuse its consent to such Transfer under this SECTION 14.2, Tenant shall again
submit the Transfer to Landlord for its approval and other action under this
ARTICLE 14.
14.3 TRANSFER PREMIUM. If Landlord consents to a Transfer, as a
condition thereto which the parties hereby agree is reasonable, Tenant shall pay
to Landlord fifty percent (50%) of any "Transfer Premium," as that term is
defined in this SECTION 14.3, received by Tenant from such Transferee. "Transfer
Premium" shall mean the total of all rent, additional rent or other
consideration payable by such Transferee in connection with the Transfer in
excess of the Rent and Additional Rent payable by Tenant under this Lease during
the term of the Transfer (on a per RSF basis if less than all of the Premises is
transferred), after deducting all expenses incurred by Tenant (brokerage, legal,
construction, and/or design fees paid to unrelated third parties, other
reasonable out-of-pocket costs paid to unrelated third parties incurred in
connection with such transfer, and the amortized value of tenant improvements
made by Tenant to the Subject Space during the first two years of the Lease term
(amortized over the entire initial term of the Lease)) resulting from a
Transfer. "Transfer Premium" shall also include, but not be limited to, bonus
money or other cash consideration paid by Transferee to Tenant in connection
with such Transfer, and any payment in excess of fair market value for services
rendered by Tenant to Transferee or for assets, fixtures, inventory, equipment,
or furniture transferred by Tenant to Transferee in connection with such
Transfer. In the calculations of the Rent (as it relates to the Transfer Premium
calculated under this SECTION 14.3), and the Transferee's Rent, the Rent paid
during each annual period for the Subject Space, and the Transferee's Rent shall
be computed after adjusting such rent to the actual effective rent to be paid,
taking into consideration any and all leasehold concessions granted in
connection therewith, including, but not limited to, any rent credit and tenant
improvement allowance. For purposes of calculating any such effective rent all
such concessions shall be amortized on a straight-line basis over the relevant
term.
14.4 EFFECT OF TRANSFER. No Transfer will relieve Tenant of its
obligations under this Lease. If Landlord consents to a Transfer, or the
Transfer is a Permitted Transfer (as defined in SECTION 14.5, below) , (i) the
TCCs of this Lease shall in no way be deemed to have been waived or modified,
(ii) Landlord's consent (if applicable) shall not be deemed consent to any
further Transfer by either Tenant or a Transferee, (iii) Tenant shall deliver to
Landlord, promptly after execution, an original executed copy of all
documentation pertaining to the Transfer, and (iv) no Transfer relating to this
Lease or agreement entered into with respect thereto, whether with or without
Landlord's consent, shall relieve Tenant from any liability under this Lease,
including, without limitation, in connection with the Subject Space. Landlord or
its authorized representatives shall have the right at all reasonable times and
upon reasonable prior notice to audit the books, records and papers of Tenant
relating to any Transfer, and shall have the right to make copies thereof. If
the Transfer Premium respecting any Transfer shall be found understated, Tenant
shall, within thirty (30) days after demand, pay the deficiency, and if
understated by more than five percent (5%), Tenant shall pay Landlord's
reasonable costs of such audit.
14.5 PAYMENT OF RENT TO LANDLORD. In the event that such sublease or
assignment is of space for which Tenant is not required to pay Base Rent and/or
Tenant's Share of Direct
45
Expenses, (i.e. because, in accordance with SECTION 3.3 of the Summary, the Rent
Commencement Date with respect to such Portion of the Premises has not yet
occurred), then, notwithstanding the Rent Commencement Date as set forth in
SECTION 3.3 of the Summary, effective upon the date of such sublease or
assignment Tenant shall be obligated to commence paying to Landlord a pro rata
share of Direct Expenses with respect to the Subject Space, and Base Rent on the
Subject Space at the annual per RSF rate of $14.00 per RSF for the period prior
to January 1, 2005, $15.00 per RSF from and after July 1, 2005 through June 30,
2005, and $16.63 per RSF from and after July 1, 2005 through May 31, 2006. If
Tenant is obligated to early commencement of Base Rent based upon subletting,
spaces shall be determined on a time basis (i.e. based upon the order of
occupancy by Tenant or any subtenant). For example, if Tenant is in occupancy of
60,000 square feet of space, and subleases an additional 40,000 square feet of
space effective January 1, 2005, the first 5,000 square feet of the subleased
space shall be deemed to be the balance of Space B, and the remaining 35,000
square feet of subleased space shall be deemed to be a part of Space C, and
Tenant shall be obligated to commence paying Base Rent with respect to the
35,000 square foot portion as of January 1, 2005 (because the Rent Commencement
Date with respect to Space C space would not otherwise have occurred until
February 1, 2005).
14.6 PERMITTED TRANSFERS. An assignment or subletting of all or a
portion of the Premises to any entity which is controlled directly or indirectly
by Tenant, or which entity controls, directly or indirectly, Tenant (in each
such case, an "Affiliate"), or any entity which owns or is owned by an Affiliate
(each, a "PERMITTED TRANSFER", shall not require Landlord's consent, provided
that prior to such assignment or sublease: (i) Tenant notifies Landlord of any
such assignment or sublease and certifies that the applicable transfer is to an
Affiliate; and (ii) such assignment or sublease is not a subterfuge by Tenant to
avoid its obligations under the Lease. An assignment of Tenant's interest in the
Lease by operation of law or otherwise resulting from any merger, consolidation,
other form of corporate reorganization of Tenant or to any entity which
purchases all or substantially all the stock or assets of Tenant, shall also be
a Permitted Transfer and shall not require Landlord's consent, provided that
prior to such assignment: (x) Tenant notifies Landlord of any such assignment;
(y) such assignment is not a subterfuge by Tenant to avoid its obligations under
the Lease; and (z) the successor entity satisfies the following financial test
(the "FINANCIAL TEST") immediately following such transaction it shall have a
net worth of at least $150,000,000.00, a Current Ratio (defined as current
assets divided by current liabilities) of 2.0, a Total Debt to Equity Ratio
(defined as total debt divided by shareholders' equity) of 1, and Interest
Coverage (defined as the ratio of annual Operating Income (EBIT) compared to
annual interest due on all debt) of 3, as evidenced by audited financial
statements provided to Landlord by Tenant.
14.7 OCCURRENCE OF DEFAULT. Any Transfer hereunder shall be
subordinate and subject to the provisions of this Lease, and if this Lease shall
be terminated during the term of any Transfer, Landlord shall have the right to:
(i) treat such Transfer as cancelled and repossess the Subject Space by any
lawful means, or (ii) require that such Transferee attorn to and recognize
Landlord as its landlord under any such Transfer. With respect to any Transfer
other than an assignment of Tenant's interest in the Lease (with respect to
which Landlord shall collect rent directly from the assignee), if Tenant shall
be in default, beyond any applicable grace periods, under this Lease, Landlord
is hereby authorized to direct any Transferee to make all payments under or in
connection with the Transfer directly to Landlord (which Landlord shall apply
46
towards Tenant's obligations under this Lease) until such default is cured. Such
Transferee shall rely on any representation by Landlord that Tenant is in
default hereunder, without any need for confirmation thereof by Tenant. Upon any
assignment, the assignee shall assume in writing all obligations and covenants
of Tenant thereafter to be performed or observed under this Lease. No collection
or acceptance of rent by Landlord from any Transferee shall be deemed a waiver
of any provision of this ARTICLE 14 or the approval of any Transferee or a
release of Tenant from any obligation under this Lease, whether theretofore or
thereafter accruing. In no event shall Landlord's enforcement of any provision
of this Lease against any Transferee be deemed a waiver of Landlord's right to
enforce any term of this Lease against Tenant or any other person.
ARTICLE 15
SURRENDER OF PREMISES; OWNERSHIP AND
REMOVAL OF TRADE FIXTURES
15.1 SURRENDER OF PREMISES. No act or thing done by Landlord or any
agent or employee of Landlord during the Lease Term shall be deemed to
constitute an acceptance by Landlord of a surrender of the Premises unless such
intent is specifically acknowledged in writing by Landlord or its management
company. The delivery of keys to the Premises to Landlord or any agent or
employee of Landlord shall not constitute a surrender of the Premises or effect
a termination of this Lease, whether or not the keys are thereafter retained by
Landlord, and notwithstanding such delivery Tenant shall be entitled to the
return of such keys at any reasonable time upon request until this Lease shall
have been properly terminated. The voluntary or other surrender of this Lease by
Tenant, whether accepted by Landlord or not, or a mutual termination hereof,
shall not work a merger, and at the option of Landlord shall operate as an
assignment to Landlord of all subleases or subtenancies affecting the Premises
or terminate any or all such sublessees or subtenancies.
15.2 REMOVAL OF TENANT PROPERTY BY TENANT. Upon the expiration of the
Lease Term, or upon any earlier termination of this Lease, Tenant shall, subject
to the provisions of this ARTICLE 15, quit and surrender possession of the
Premises and the Building to Landlord in as good order and condition as when
Tenant took possession and as thereafter improved by Landlord and/or Tenant,
reasonable wear and tear, damage due to casualty or condemnation, damage caused
by Landlord Fault, or repairs which are specifically made the responsibility of
Landlord hereunder excepted. Upon such expiration or termination, Tenant shall,
without expense to Landlord, remove or cause to be removed from the Premises and
Building all debris and rubbish, and such items of furniture, equipment,
business and trade fixtures, free-standing cabinet work, movable partitions and
other articles of personal property owned by Tenant or installed or placed by
Tenant at its expense in the Premises or the Building (excluding, however,
Tenant's Alterations which have become the property of Landlord and which Tenant
is not required to remove pursuant to SECTION 8.5, above), and Tenant shall
repair at its own expense all damage to the Premises and Building to the extent
resulting from such removal.
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ARTICLE 16
HOLDING OVER
16.1 AFTER EXPIRATION OR EARLIER TERMINATION OF LEASE TERM. If Tenant
holds over or fails to vacate the Premises and the Building after the expiration
of the Lease Term or earlier termination thereof, with or without the express or
implied consent of Landlord, such tenancy shall be from month-to-month only, and
shall not, except as set forth below, constitute a renewal hereof or an
extension for any further term, and in such case Rent shall be payable at a
monthly rate equal to the product of (i) the Rent applicable during the last
rental period of the Lease Term under this Lease, and (ii) one hundred and
twenty-five percent (125%) for the first thirty (30) days of hold over, one
hundred fifty percent (150%) for the second thirty (30) days of hold over, and
two hundred percent (200%) for any period of hold over after the first sixty
(60) days. Such month-to-month tenancy shall be subject to every other
applicable TCCs contained herein. Nothing contained in this ARTICLE 16 shall be
construed as consent by Landlord to any holding over by Tenant, and Landlord
expressly reserves the right to require Tenant to surrender possession of the
Premises to Landlord as provided in this Lease upon the expiration or other
termination of this Lease. The provisions of this ARTICLE 16 shall not be deemed
to limit or constitute a waiver of any other rights or remedies of Landlord
provided herein or at law. If Tenant fails to surrender the Premises and the
Building within sixty (60) days after the termination or expiration of this
Lease, in addition to any other liabilities to Landlord accruing therefrom,
Tenant shall protect, defend, indemnify and hold Landlord harmless from all
loss, costs (including reasonable attorneys' fees) and liability resulting from
such failure, including, without limiting the generality of the foregoing, any
claims made by any succeeding tenant founded upon such failure to surrender and
any lost profits to Landlord resulting therefrom; provided however, this
sentence shall not apply to a hold over after the early termination of the Lease
(and prior to the scheduled expiration date of this Lease) based upon the
alleged default by Tenant in its obligations under the Lease (other than its
obligation to pay Rent) which is disputed in good faith, unless such dispute is
resolved adverse to Tenant's position. Tenant's indemnification obligations
under this Section 16.1 (in addition to any and all Rent payable during the
actual hold over period pursuant to the first sentence of this Section 16.1)
shall not exceed the greater of: (i) two hundred percent (200%) of the PMRR (as
defined in SECTION 3.1.1) that would have been payable by Tenant for a
twenty-four month period if this Lease had been extended for twenty-four months
at PMRR, or (ii) two hundred percent (200%) times the Rent would have been
payable by Tenant for a twenty-four month period if this Lease had been extended
for twenty-four months at the Rent applicable during the last rental period of
the Lease Term.
ARTICLE 17
ESTOPPEL CERTIFICATES
Within ten (10) business days following a request in writing by either
party ("Requesting Party"), the other party ("Responding Party"), shall execute,
acknowledge and deliver to the Requesting Party an estoppel certificate, which,
as submitted by Landlord, shall be substantially in the form of EXHIBIT E, or
EXHIBIT E-1 attached hereto, or such other substantially similar form containing
such other information as shall be reasonably requested by any prospective
mortgagee
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or purchaser of the Project (provided that the Responding Party shall not be
required to incur third party costs to provide such information), or any portion
thereof, indicating therein any exceptions thereto that may exist at that time.
Any such certificate may be relied upon by any prospective mortgagee or
purchaser of all or any portion of the Project.
ARTICLE 18
SUBORDINATION
This Lease is contingent upon the execution of a subordination,
non-disturbance and attornment agreement ("SNDA"), in the form attached hereto
as EXHIBIT K, by Landlord, Tenant and the holders of all mortgages and ground
leases presently affecting the Premises. Landlord agrees to obtain a SNDA, in
form reasonably acceptable to the parties thereto, from the holders of any
future mortgages or ground leases on the Premises in favor of Tenant. Provided
that Landlord obtains such SNDA(s), this Lease shall be subject and subordinate
to all present and future ground or underlying leases of the Building or Project
and to the lien of any mortgage, trust deed or other encumbrances now or
hereafter in force against the Building or Project or any part thereof, if any,
and to all renewals, extensions, modifications, consolidations and replacements
thereof, and to all advances made or hereafter to be made upon the security of
such mortgages or trust deeds, unless the holders of such mortgages, trust deeds
or other encumbrances (collectively, "LIENHOLDERS"), or the lessors under such
ground lease or underlying leases require in writing that this Lease be superior
thereto. Tenant covenants and agrees in the event any proceedings are brought
for the foreclosure of any such mortgage or deed in lieu thereof (or if any
ground lease is terminated), to attorn to the lienholder or purchaser or any
successors thereto upon any such foreclosure sale or deed in lieu thereof (or to
the ground lessor), if so requested to do so by such purchaser or lienholder or
ground lessor, and to recognize such purchaser or lienholder or ground lessor as
the lessor under this Lease. Landlord's interest herein may be assigned as
security at any time to any lienholder. Tenant shall, within ten (10) business
days of request by Landlord, execute such further instruments or assurances as
Landlord may reasonably deem necessary to evidence or confirm the subordination
or superiority of this Lease to any such mortgages, trust deeds, ground leases
or underlying leases in accordance with the TCCs of this ARTICLE 18. Tenant
waives the provisions of any current or future statute, rule or law which may
give or purport to give Tenant any right or election to terminate or otherwise
adversely affect this Lease and the obligations of the Tenant hereunder in the
event of any foreclosure proceeding or sale.
ARTICLE 19
DEFAULTS; REMEDIES
19.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an event of default (an "EVENT OF DEFAULT") under this Lease by
Tenant:
19.1.1 Any failure by Tenant to pay any Rent or any other
charge required to be paid under this Lease, or any part thereof, when due
unless such failure is cured within five (5) business days after the due date,
provided, however, Landlord shall be required to give written notice to Tenant
of such failure once in any twelve month period, after which Tenant shall be in
49
default without the requirement of notice if Tenant fails to make such payments
on or before the due date; or
19.1.2 Any failure by Tenant to observe or perform any other
provision, covenant or condition of this Lease to be observed or performed by
Tenant where such failure continues for thirty (30) days after written notice
thereof from Landlord to Tenant; provided that if the nature of such default is
such that the same cannot reasonably be cured within a thirty (30) day period,
Tenant shall not be deemed to be in default if it diligently commences such cure
within such period and thereafter diligently and continuously proceeds to
rectify and cure such default within ninety (90) days after such written notice;
or
19.1.3 (a) The making by Tenant of any general arrangement or
general assignment for the benefit of creditors; (b) Tenant becomes a "debtor"
as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in
the case of a petition filed against Tenant, the same is dismissed within sixty
(60) days); (c), the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days; (d) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within sixty (60)
days or the date of any sooner sale of any of such assets; or (e) Tenant shall
become subject to any proceeding in bankruptcy or insolvency.
The notice periods provided herein are in lieu of, and not in addition to,
any notice periods provided by law.
19.2 REMEDIES UPON DEFAULT. Upon the occurrence of any Event of
Default by Tenant, Landlord shall have, in addition to any other remedies
available to Landlord at law or in equity (all of which remedies shall be
distinct, separate and cumulative), the option to pursue any one or more of the
following remedies, each and all of which shall be cumulative and nonexclusive,
without any notice or demand whatsoever, except as expressly set forth below:
19.2.1 Terminate this Lease upon ten days written notice to
Tenant (provided that Tenant has not cured the Event of Default(s) during said
ten day period), in which event Tenant shall immediately surrender the Premises
to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to
any other remedy which it may have for possession or arrearages in rent, use any
lawful means to expel or remove Tenant and any other person who may be occupying
the Premises or any part thereof, without being liable for prosecution or any
claim or damages therefor; and Landlord may recover from Tenant the following:
(i) The worth at the time of award of the unpaid
rent which had been earned at the time of such
termination; plus
(ii) The worth at the time of award of the amount by
which the unpaid rent which would have been
earned after termination until the time of
award exceeds the amount of such rental loss
that Tenant proves could have been reasonably
avoided; plus
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(iii) The worth at the time of award of the
amount by which the unpaid rent for the balance of
the Lease Term after the time of award exceeds the
amount of such rental loss that Tenant proves
could have been reasonably avoided; plus
(iv) In the event of a material monetary default
by Tenant (defined as a monetary default in excess
of one month's Base Rent, beyond applicable notice
and cure periods, if any), the "Rent Abatement
Component" calculated based on the "Effective Rent
Abatement", as set forth below. The amount of the
Effective Rent Abatement on the Premises (or
Portions thereof) for periods prior to June 1,
2006 shall be equal to the amount of rent that
would have been payable under the Lease assuming
that Base Rent was due and payable on the entire
Building commencing on January 1, 2004 continuing
through May 31, 2006, at the applicable per RSF
rate(s) set forth in SECTION 4.1 of the Summary,
minus Base Rent that was actually paid for such
periods, plus interest on such abated sums at then
current money market rates (accrued monthly on the
dates Base Rent would have become due and
payable). The total amount of such Effective Rent
Abatement, plus interest at ten percent (10%) per
annum, shall be amortized over the period
commencing on January 1, 2006 through June 30,
2018, and the unamortized amount shall be included
as one of the components of damages (said
unamortized amount is referred to as the "Rent
Abatement Component"). If Landlord seeks damages
pursuant to either subsections (ii) or (iii)
above, the damages pursuant to Subsection (iii)
above shall be reduced by the Rent Abatement
Component; plus
(v) At Landlord's election, such other amounts
in addition to or in lieu of the foregoing as may
be permitted from time to time by applicable law.
The term "RENT" as used in this SECTION 19.2 shall be deemed to be and to
mean all sums of every nature required to be paid by Tenant pursuant to the TCCs
of this Lease, whether to Landlord or to others. As used in Paragraphs 19.2.1(i)
and (ii), above, the "worth at the time of award" shall be computed by allowing
interest at the rate set forth in ARTICLE 25 of this Lease through the date of
any judgment against Tenant, but in no case greater than the maximum amount of
such interest permitted by law. As used in Paragraph 19.2.l (iii) above, the
"worth at the time of award" shall be computed by discounting future liabilities
after the date of any judgment against Tenant at the discount rate of the
Federal Reserve Bank of New York.
19.2.2 Maintain Tenant's right to possession in which case
this Lease shall continue in effect whether or not Tenant shall have vacated or
abandoned the Premises. In such event, Landlord shall be entitled to enforce all
of Landlord's rights and remedies under this Lease, including the right to
recover the rent as it becomes due hereunder, and in the event of a material
monetary default by Tenant (defined as a monetary default in excess of one
month's
51
Base Rent, beyond applicable notice and cure periods), the right to recover the
Rent Abatement Component, as defined in SECTION 19.2.1, above. No action by
Landlord shall be deemed a termination of this Lease except written notice by
Landlord delivered to Tenant expressly declaring a termination of this Lease. If
Landlord maintains Tenant's right to possession, Landlord may thereafter elect
to terminate this Lease.
19.2.3 Terminate this Lease upon ten days written notice to
Tenant and, in addition to any recoveries Landlord may seek under SECTION
19.2.1, bring an action to reenter and regain possession of the Premises
in the manner provided by the laws of the Commonwealth of Massachusetts then in
effect.
19.2.4 Pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the Commonwealth of
Massachusetts.
19.2.5 Each party shall have at all times the rights and
remedies (which, subject to any limitations on remedies expressly set forth in
this Lease, shall be cumulative with each other and cumulative and in addition
to those rights and remedies available under SECTIONS 19.2.1 through 19.2.4,
above (with respect to Landlord's rights) AND SECTIONS 6.4.1 THROUGH 6.4.3 (with
respect to Tenant's rights), or any law or other provision of this Lease),
without prior demand or notice except as required by applicable law, to seek any
declaratory, injunctive or other equitable relief, and specifically enforce this
Lease, or restrain or enjoin a violation or breach of any provision hereof;
provided, however, that each party shall use commercially reasonable efforts to
mitigate damages.
19.3 SUBLEASES OF TENANT. If Landlord elects to terminate this Lease
on account of any default by Tenant, as set forth in this ARTICLE 19, Landlord
shall have the right to terminate any and all subleases, licenses, concessions
or other consensual arrangements for possession entered into by Tenant and
affecting the Premises or may, in Landlord's sole discretion, succeed to
Tenant's interest in such subleases, licenses, concessions or arrangements. If
Landlord has terminated this Lease and elected to succeed to Tenant's interest
in any such subleases, licenses, concessions or arrangements, Tenant shall, as
of the date of notice by Landlord of such election, have no further right to or
interest in the rent or other consideration receivable thereunder.
19.4 FORM OF PAYMENT AFTER DEFAULT. Following the occurrence of three
(3) events of default by Tenant in the payment of Base Rent or Additional Rent
in excess of $50,000.00 in any twelve (12) consecutive month period, Landlord
shall have the right to require that any or all subsequent amounts paid by
Tenant to Landlord hereunder, whether to cure the default in question or
otherwise, be paid in the form of cash, money order, cashier's or certified
check drawn on an institution acceptable to Landlord, or by other means approved
by Landlord, notwithstanding any prior practice of accepting payments in any
different form.
19.5 NO RELIEF FROM FORFEITURE AFTER DEFAULT. Tenant waives all rights
of redemption or relief from forfeiture under any present or future laws or
statutes, in the event Tenant is evicted or Landlord otherwise lawfully takes
possession of the Premises by reason of any default by Tenant under this Lease.
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19.6 EFFORTS TO RELET. No re-entry or repossession, repairs,
maintenance, changes, alterations and additions, reletting, appointment of a
receiver to protect Landlord's interests hereunder, or any other action or
omission by Landlord shall be construed as an election by Landlord to terminate
this Lease or Tenant's right to possession, or to accept a surrender of the
Premises, nor shall same operate to release Tenant in whole or in part from any
of Tenant's obligations hereunder, unless express written notice of such
intention is sent by Landlord to Tenant. Tenant hereby irrevocably waives any
right otherwise available under any law to redeem or reinstate this Lease.
19.7 LANDLORD DEFAULT. Notwithstanding anything to the contrary set
forth in this Lease, Landlord shall not be in default under the TCCs of this
Lease or in the performance of any obligation required to be performed by
Landlord pursuant to this Lease unless Landlord fails to cure such default
and/or to perform such obligation within thirty (30) days after the receipt of
written notice from Tenant specifying in detail Landlord's alleged default or
failure to perform; provided, however, if the nature of Landlord's default or
obligation is such that more than thirty (30) days are required for its cure or
performance, then Landlord shall not be in default under this Lease if it shall
commence such performance within such thirty (30) day period and thereafter
diligently pursues the same to completion. Tenant shall provide a copy of any
notice of default given to Landlord to Landlord's mortgagee (provided that
Tenant has been provided with the name and address of such mortgagee) and
Landlord's mortgagee shall have the right to cure any such default on behalf of
the Landlord within thirty days after the receipt of such notice, provided,
however, if the nature of Landlord's obligation is such that more than thirty
(30) days are required for its performance, then Landlord shall not be in
default under this Lease if Landlord's mortgagee shall commence such performance
within such thirty (30) day period and thereafter diligently pursues the same to
completion. Upon any such default by Landlord (following such notice and
opportunity to cure) under this Lease, Tenant may, except as otherwise
specifically provided in this Lease to the contrary, exercise any of its rights
provided at law or in equity, provided, however, except as expressly provided in
SECTIONS 6.4, 11.3, 13.1 and 19.8. Tenant shall have no right to offset or
withhold the payment of Rent or to terminate this Lease as the result of
Landlord's default. Nothing in this SECTION 19.7 shall extend or delay Tenant's
rights of termination or abatement under SECTIONS 6.4, 11.3 and/or 13.1 of this
Lease.
19.8 SELF-HELP. If either party shall, within a period of thirty (30)
days (or such additional reasonable period of time if the nature of the failure
is such that it cannot reasonably be cured within such thirty-(30)-day period)
after the giving of written notice to it by the other party (or such shorter
notice as shall be reasonably appropriate in an emergency), fail to perform any
covenant on its part to be performed as in this Lease contained, the other party
may perform the same for the account of the defaulting party. The defaulting
party shall, within thirty (30) days of written demand, reimburse the
non-defaulting party for the reasonable costs and expenses incurred by the
non-defaulting party pursuant to this Section 19.8. Amounts due from Tenant
shall be deemed to be Additional Rent under this Lease, and Tenant's failure to
reimburse Landlord for amounts due in accordance with this Section 19.8 shall
have the same effect as if Tenant failed timely to pay Base Rent or Additional
Rent. If Landlord fails timely to pay any amounts due to Tenant pursuant to this
SECTION 19.8, Tenant shall have the right to offset such amounts against the
next installment(s) of Base Rent and Additional Rent due under this Lease,
provided however, such offset shall not exceed, in any month, an amount equal to
ten percent (10%) of the monthly Base Rent payment.
53
ARTICLE 20
COVENANT OF QUIET ENJOYMENT
Landlord covenants that subject to Tenant's performance of its obligations
under this Lease Tenant shall, during the Lease Term, peaceably and quietly
have, hold and enjoy the Premises subject to the terms, covenants, conditions,
provisions and agreements hereof without interference by any persons lawfully
claiming by, through, or under Landlord, or claiming superior title to Landlord.
The foregoing covenant is in lieu of any other covenant express or implied.
ARTICLE 21
SECURITY DEPOSIT
21.1 SECURITY DEPOSIT. Upon execution and delivery of this Lease,
Tenant shall provide a security deposit in the amount set forth in the Summary
(the "Security Deposit"), to be held by Landlord without liability for interest
(unless required by State laws) as security for the performance of Tenant's
obligations hereunder. The Security Deposit is not an advance payment of Rent or
a measure of Tenant's liability for damages. Landlord may, from time to time,
without prejudice to any other remedy, after the expiration of applicable notice
and cure periods, if any, use all or a portion of the Security Deposit to
satisfy past due Rent or to cure any uncured default by Tenant. If Landlord uses
all or a portion of the Security Deposit, Tenant shall on demand restore the
Security Deposit to its original amount. Landlord shall return any unapplied
cash portion of the Security Deposit to Tenant within forty five (45) days after
the later to occur of: (1) the date Tenant surrenders possession of the Premises
in accordance with this Lease; or (2) the Lease Expiration Date. Unless required
by State law, Landlord shall not be required to keep the Security Deposit
separate from its other accounts.
21.2 LETTER OF CREDIT. The Security Deposit shall be in the form of an
irrevocable standby letter of credit (the "Security LC") in favor of Landlord
(or at Landlord's request, in favor of Landlord and/or its mortgagee, provided
that its mortgagee is Xxxxx Fargo Bank, National Association or another
institutional lender) as beneficiary. Upon Landlord's determination that an
Event of Default by Tenant has occurred under the Lease, in addition to all
other rights and remedies provided to Landlord under the Lease, the beneficiary
of the Security LC shall have the right to draw from the letter of credit and
apply the proceeds, or any part thereof, to amounts owing under the Lease; but
Tenant's liability under the Lease shall thereby be discharged but only to the
extent that such draws cover the amount in default and Tenant shall remain
liable for any amounts that such draws shall be insufficient to pay, and for
replacing or increasing the Security LC as set forth in SECTION 21.5 below.
Landlord is not required to exhaust any or all rights and remedies available at
law or equity against Tenant before resorting to the letter of credit. In the
event the letter of credit shall not be utilized for any purposes herein
permitted, then such letter of credit shall be returned by Landlord to Tenant
within forty-five (45) days after the expiration of the Term of this Lease. The
following terms and conditions shall govern the letter of credit:
54
(i) The letter of credit shall be in favor of Landlord, or,
at Landlord's election, Landlord and/or the Landlord's mortgagee (provided that
its mortgagee is Xxxxx Fargo Bank, National Association or another institutional
lender), shall be issued by a commercial bank reasonably acceptable to Landlord
and having a Standard & Poors rating of "A" or better (and Tenant shall provide
evidence annually that the issuer continues to meet this standard, and if it
does not, Tenant shall replace the letter or credit within twenty (20) days
after Landlord's request with a letter of credit meeting all the requirements of
this SECTION 21.2, and Tenant's failure to do so shall be deemed to be an event
of default entitling the beneficiary of the letter of credit to draw thereon and
to hold the proceeds as a security deposit in accordance with this ARTICLE 21),
shall comply with all of the terms and conditions of this Lease and shall
otherwise be in form reasonably acceptable to Landlord. The initial letter of
credit shall have an expiration date not earlier than the later of: one year
after its date of issuance or March 1, 2005. Landlord hereby consents to
Tenant's use of XX Xxxxxx Chase, at Tenant's election, for the issuance of its
initial letter of credit.
(ii) The letter of credit or any replacement letter of
credit shall be irrevocable for the term thereof and shall automatically renew
on a year to year basis until a period ending not earlier than forty-five (45)
days after the then current Lease Expiration Date without any action whatsoever
on the part of Landlord; provided that the issuing bank shall have the right not
to renew the letter of credit by giving written notice to Landlord not less than
sixty (60) days prior to the expiration of the then current term of the letter
of credit that it does not intend to renew the letter of credit. Tenant
understands that the election by the issuing bank not to renew the letter of
credit shall not, in any event, diminish the obligation of Tenant to maintain
such an irrevocable letter of credit in favor of Landlord through such date.
(iii) Landlord, or the beneficiary of the letter of credit,
shall have the right from time to time to make one or more draws on the letter
of credit at any time that Landlord has determined that an event of default has
occurred under this Lease, or that Landlord is entitled to draw on the letter of
credit pursuant to subsection (vi) below. Funds may be drawn down on the letter
of credit upon presentation to the issuing bank of beneficiary's (or Landlord's
then managing agent's) certificate stating as follows:
"The undersigned is entitled to draw on this letter of
credit pursuant to Article 21 of that certain Lease dated
________________, 200__ between Marlborough Campus Limited
Partnership, Landlord, and
Cytyc Corporation, Tenant, as amended
from time to time"
(iv) Tenant acknowledges and agrees (and the letter of
credit shall so state) that the letter of credit shall be honored by the issuing
bank without inquiry as to the truth of the statements set forth in such draw
request and regardless of whether the Tenant disputes the content of such
statement.
(v) The beneficiary under the Security LC shall have the
right, subject to Applicable Laws to transfer the letter of credit to Landlord
or Landlord's mortgagee (provided that its mortgagee is Xxxxx Fargo Bank,
National Association or another institutional lender), without cost to Landlord
or its mortgagee. In the event of a transfer of Landlord's interest in the
Premises, Landlord shall have the right, subject to Applicable Laws, to transfer
the letter of
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credit to the transferee without cost to Landlord or its transferee, and,
provided that the transferee assumes Landlord's obligations under the Lease with
respect to the letter of credit, thereupon the Landlord shall, without any
further agreement between the parties, be released by Tenant from all liability
therefor, and it is agreed that the provisions hereof shall apply to every
transfer or assignment of said letter of credit to a new landlord.
(vi) Without limiting the generality of the foregoing, if
the letter of credit expires earlier than forty-five days after the Lease
Expiration Date, or the issuing bank notifies Landlord that it shall not renew
the letter of credit, Landlord shall accept a renewal thereof or substitute
letter of credit (such renewal or substitute letter of credit to be in effect
not later than thirty (30) days prior to the expiration thereof), irrevocable
and automatically renewable as above provided to the date which is forty-five
days after the Lease Expiration Date upon the same terms as the expiring letter
of credit or upon such other terms as may be acceptable to Landlord. However, if
(i) the letter of credit is not timely renewed, or (ii) a substitute letter of
credit complying with all of the terms and conditions of this ARTICLE 21
("Substitute Letter of Credit"), is not timely received, the beneficiary may
present such letter of credit to the issuing bank, and the entire sum so
obtained shall be paid to the beneficiary, to be held as a security deposit in
accordance with the provisions of this ARTICLE 21 until either Tenant tenders to
Landlord a Substitute Letter of Credit in exchange for such proceeds (in which
event Landlord shall exchange such proceeds for the Substitute Letter of Credit)
or until Tenant would otherwise be entitled to the return of the letter of
credit, subject to Landlord's right to apply such sums as permitted under this
Lease.
21.3 REDUCTION IN SECURITY DEPOSIT. Provided that, as of the effective
date for reduction of the Security Deposit, as set forth below: (i) there is
then no Default Condition (as defined in SECTION 2.2, above), and (ii) Tenant
meets the Financial Test (as defined in ARTICLE 14, above), the Security Deposit
will be reduced (and Landlord will accept a substitute letter of credit or an
amended letter of credit in the following amounts) on the dates indicated: on
February 1, 2005, the Security Deposit shall be reduced to $3,200,000.00; and on
August 1, 2006 the Security Deposit shall be reduced to $500,000.00, which shall
be held for the balance of the term of the Lease. In no event shall the Security
Deposit total less than $500,000.00. If Tenant fails to satisfy either of the
conditions to the reduction of the Security Deposit as of the stated date, but
if, prior to the next scheduled reduction date, Tenant satisfies both
conditions, the scheduled reduction will take place as of the date that Tenant
satisfies both conditions. If Tenant fails to meet the Financial Test as of July
1, 2006, and if Tenant subsequently meets the test, then, provided that there is
no Default Condition (i) as of the date that Tenant subsequently meets the
Financial Test, and (ii) on the date the reduction in the Security Deposit is to
take place, the reduction in the Security Deposit will take place on the date
that Tenant establishes that it has met the test for the prior six month period.
At least thirty days prior to each reduction date (or, if later, at least thirty
days prior to the submission of a substitute letter of credit or an amendment to
the letter of credit reducing the amount of the security deposit), Tenant shall
provide a certified statement to Landlord stating that the conditions to the
step down have been met, setting forth the Tenant's then current net worth,
Current Ratio, Total Debt to Equity Ratio and Interest Coverage, and requesting
that Landlord send a letter authorizing reduction of the letter of credit amount
(the "Reduction Authorization Letter") to Tenant, any other beneficiary of the
Letter of Credit, and the issuer of the Letter of Credit. Within ten business
days after receipt of such request, provided that the conditions for the step
down have been met, Landlord shall
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provide the Reduction Authorization Letter to Tenant and the issuer of the
Letter of Credit, stating,
"In accordance with Section 21.3 of the Lease between Marlborough Campus
Limited Partnership as Landlord and
CYTYC Corporation as Tenant dated
______, 2003 (as it may have been amended form time to time), Landlord
agrees and acknowledges that the conditions for the reduction of the Letter
of Credit have been met and an amendment may be issued to the Letter of
Credit reducing the amount of the Letter of Credit to $____________ (the
reduced amount of the Security Deposit) effective ____________ and/or a
substitute letter of credit may be substituted for the existing Letter of
Credit in the amount of $___________ (the reduced amount of the Security
Deposit) effective ____________".
If , as of any date that Tenant believes that it is entitled to a reduction in
the Security Deposit, Tenant presents a substitute letter of credit in exchange
for a letter of credit which Landlord is holding or an amended letter of credit,
in either case, in the appropriate amount, then Landlord shall be deemed to have
agreed that Tenant is entitled to such reduction in the Security Deposit (i.e.
and Landlord will be deemed to have waived all conditions to such reduction)
unless, within thirty (30) days after Landlord's receipt of such substitute or
amended letter of credit, Landlord gives written notice to Tenant setting forth
with specificity the manner in which Tenant has failed to satisfy the conditions
to such reduction in the Security Deposit. Tenant represents that its net worth
as of the Effective Date is approximately $300,000,000.
21.4 REPLENISHMENT OF SECURITY DEPOSIT. Notwithstanding anything to
the contrary contained herein, within five (5) business days after receipt of
notice that Landlord has drawn on the Security LC, Tenant shall cause the
Security LC to be replaced with a substitute letter of credit, meeting the
requirements of this Article 21 and in an amount equal to the full Security
Deposit required as of that date, or shall cause the existing Security LC to be
replenished so that the amount available to be drawn under the Security LC is
equal to the full Security Deposit required as of that date, after giving
effect, if applicable, to the provisions of SECTION 21.3 above.
ARTICLE 22
INTENTIONALLY OMITTED
ARTICLE 23
SIGNS
Subject to Landlord's approval, which shall not be unreasonably withheld, Tenant
will have the right to use its standard graphics for a sign on the east facade
of the exterior of Building 3, to have its name included in the list of tenants
on the directory sign near the main entrance to the Project, and to install a
monument sign with its name and graphics near the main entrance to Building 3,
subject to Tenant's obtaining any necessary permits from the City of Marlborough
at its sole cost and expense. Tenant shall have unrestricted signage rights
within the Premises,
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subject to the obligation to restore, and provided that such signs are not
visible from the exterior of the Premises.
ARTICLE 24
COMPLIANCE WITH LAW
Tenant shall not do anything or suffer anything to be done in or about the
Premises or the Project which will in any way conflict with any law, statute,
ordinance, decrees, codes (including without limitation building, zoning and
accessibility codes), common law, judgments, orders, rulings, awards or other
governmental or quasi-governmental rule, regulation or requirement now in force
or which may hereafter be enacted or promulgated including without limitation,
the Americans with Disabilities Act of 1990, as amended, and any "Environmental
Laws" as that term is defined in SECTION 29.31 of this Lease (collectively,
"APPLICABLE LAWS"). Tenant shall promptly provide to Landlord a copy of any
written notice received by Tenant of violation of any federal, state, county or
municipal laws, regulations, ordinances, orders or directives relating to the
use or condition of the Premises or the Building. At its sole cost and expense,
Tenant shall promptly comply in all material respects with all such governmental
measures to the extent that such governmental measures relate to Tenant's
particular (i.e. other than general business office) use of the Premises or the
Building or any Alterations made by Tenant located in the Building. Should any
standard or regulation now or hereafter be imposed on Landlord or Tenant by a
commonwealth, state, federal or local governmental body charged with the
establishment, regulation and enforcement of occupational, health or safety
standards for employers, employees, landlords or tenants, then Tenant agrees, at
its sole cost and expense, to comply promptly with such standards or regulations
to the extent such standards or regulations relate to Tenant's particular use of
the Premises or the Building or any Alterations made by Tenant located in or on
the Building; provided that Landlord shall comply in all material respects with
any standards or regulations which relate to the Base Building or the Building
Systems, unless such compliance obligations are triggered by the Alterations
made by Tenant to the Building, in which event such compliance obligations shall
be at Tenant's sole cost and expense; provided further, and notwithstanding the
foregoing, that Tenant shall not be required to make any repair to, modification
of, or addition to the Base Building or the Building Systems except and to the
extent required because of Tenant's particular (i.e. other than general business
office) use of the Premises or the Building. The judgment of any court of
competent jurisdiction or the admission by either party hereto in any judicial
action, regardless of whether this other party is a party thereto, that such
party has violated any of said governmental measures, shall be conclusive of
that fact as between Landlord and Tenant. Landlord shall comply with all
Applicable Laws (as defined in Article 24) relating to the Project, Base
Building and Building Systems, provided that compliance with such Applicable
Laws is not the responsibility of Tenant under this Lease, and provided further
that Landlord's failure to comply therewith would prohibit Tenant from obtaining
or maintaining a certificate of occupancy for the Premises, or would
unreasonably and materially affect the safety of Tenant's Parties or create a
significant health hazard for Tenant's Parties or otherwise materially interfere
with or materially affect Tenant's Permitted Use and enjoyment of the Premises.
Tenant shall reimburse Landlord for all costs or expenses incurred by Landlord
under this ARTICLE 24 to the extent the same would be permitted by, and
amortized to the extent that would be required by, the TCCs of SECTION 4.2.4 of
this Lease if Tenant's Share of the Building were 100%. If Landlord is required
by Applicable Laws to implement fire
58
protection and/or prevention practices (such as, and including participation in
fire drills) in the Building, Tenant shall cause all Tenant Parties to observe
such practices.
ARTICLE 25
LATE CHARGES
If any installment of Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord's designee within five (5) business days
following the due date for Base Rent (provided, however, Landlord shall be
required to give written notice to Tenant of such failure once in any twelve
month period, after which the late charge shall apply without notice), or within
five (5) business days following written notice that such amount was not paid
when due for Additional Rent and other sums which may become due under this
Lease, then Tenant shall pay to Landlord a late charge equal to five percent
(5%) of the overdue amount; provided however, that Landlord hereby agrees to
waive the first such late charge in any 12 month period. The late charge shall
be deemed Additional Rent and the right to require it shall be in addition to
all of Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner. In addition to the late charge described above, any Rent or other
amounts owing hereunder which are not paid within five (5) business days
following the due date for Base Rent, or within five (5) business days following
written notice that such amount was not paid when due for Additional Rent and
other sums which may become due under this Lease shall bear interest from the
date when due until paid at an annual interest rate equal to the Prime Rate (as
stated under the column "Money Rates" in THE WALL STREET JOURNAL) plus four
percent (4%); provided, however, in no event shall such annual interest rate
exceed the highest annual interest rate permitted by Applicable Law.
ARTICLE 26
LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT
26.1 LANDLORD'S CURE. All covenants and agreements to be kept or
performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense and without any reduction of Rent, except to the extent,
if any, otherwise expressly provided herein. If Tenant shall fail to perform any
obligation under this Lease, and such failure shall continue in excess of the
time allowed under SECTION 19.1.2, above, unless a specific time period is
otherwise stated in this Lease, Landlord may, but shall not be obligated to,
make any such payment or perform any such act on Tenant's part without waiving
its rights based upon any default of Tenant and without releasing Tenant from
any obligations hereunder.
26.2 REIMBURSEMENT. Except as may be specifically provided to the
contrary in this Lease, Tenant shall pay to Landlord, within thirty (30) days
following delivery by Landlord to Tenant of receipts therefor: (i) sums equal to
expenditures reasonably made and obligations incurred by Landlord in connection
with the remedying by Landlord of Tenant's defaults pursuant to the provisions
of SECTION 26.1; and (ii) each party shall pay the other party sums equal to all
losses, costs, liabilities, damages and expenses referred to in Article 10 of
this Lease to the extent that the same are the responsibility of such party. All
of such sums payable by Tenant shall be deemed Additional Rent and the right to
require it shall be in addition to all of
59
Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner. Each party's obligations under this SECTION 26.2 shall survive the
expiration or sooner termination of the Lease Term.
ARTICLE 27
ENTRY BY LANDLORD
Landlord reserves the right during normal business hours, upon no less than
24 hours prior notice to Tenant (except in the case of an emergency), and in
compliance with Tenant's reasonable security measures, to enter the Premises to
(i) inspect them; (ii) show the Premises to prospective purchasers, current or
prospective mortgagees, ground or underlying lessors or insurers or, during the
last twelve (12) months of the Lease Term, tenants, or prospective tenants;
(iii) post notices of nonresponsibility; or (iv) improve, maintain or repair the
Premises or the Building, or for structural alterations, repairs, maintenance or
improvements to the Building or the Building's systems and equipment.
Notwithstanding anything to the contrary contained in this ARTICLE 27, Landlord
may enter the Premises and/or the Building at any time to (A) perform services
required of Landlord, including janitorial service; (B) take possession due to
any breach of this Lease in the manner provided herein and in accordance with
Section 19.2; and (C) during normal business hours, upon forty-eight (48) hours
prior notice, perform any covenants of Tenant which Tenant fails to perform
after an Event of Default by Tenant based upon such covenant. Landlord may make
any such entries without the abatement of Rent (except as expressly set forth in
SECTION 6.4) and may take such reasonable steps as required to accomplish the
stated purposes. In connection with any entry into the Premises, Landlord agrees
to make reasonable efforts to minimize interference with Tenant's operations in
the Premises caused by such entry and to minimize the duration of any such
interference. Tenant hereby waives any claims for damages or for any injuries or
inconvenience to or interference with Tenant's business, lost profits, any loss
of occupancy or quiet enjoyment of the Premises, and any other loss occasioned
thereby, except with respect to damage to Tenant's personal property or the
amount of any physical injury, but only, subject to SECTION 10.5, to the extent
such damage is caused by the negligent acts or omissions or willful misconduct
of Landlord, its agents, employees and contractors. For each of the above
purposes, Landlord shall at all times have a key or card key with which to
unlock all the doors in the Premises and the Building, excluding Tenant's
vaults, safes and special security areas designated in advance by Tenant (the
"SECURITY AREAS"). Notwithstanding anything set forth in this ARTICLE 27 to the
contrary, Landlord shall have no access or inspection rights as to the Security
Areas, except in the event of an emergency where such entry is reasonably
required. In an emergency, Landlord and its agents, employees and contractors
shall have the right to use any means that Landlord may deem proper to open the
doors in and to the Premises, provided Landlord has reasonably attempted, but to
no avail, to obtain Tenant's immediate cooperation in connection therewith. Any
entry into the and/or the Building by Landlord in the manner hereinbefore
described shall not be deemed to be a forcible or unlawful entry into, or a
detainer of, the Premises, or an actual or constructive eviction of Tenant from
any portion of the Premises. No provision of this Lease shall be construed as
obligating Landlord to perform any repairs, alterations or decorations except as
otherwise expressly agreed to be performed by Landlord herein.
60
ARTICLE 28
TENANT PARKING
Tenant shall be entitled to utilize, without additional charge, and on a
non-exclusive basis, commencing on the Lease Commencement Date, the amount of
unreserved and unassigned parking spaces set forth in SECTION 9 of the Summary.
Tenant covenants that it shall cooperate with Landlord to ensure that Tenant's
agents, servants, employees, officers, partners, representatives, visitors and
contractors (collectively, "TENANT'S PARKERS") do not exceed the parking
allocation to Tenant set forth in SECTION 9 of the Summary and comply with
reasonable non-discriminatory rules and regulations which are prescribed from
time to time by Landlord for the orderly operation and use of the parking areas
where the parking spaces are located, including Tenant's cooperation in seeing
that Tenant's Parkers also comply with such rules and regulations.
Landlord specifically reserves the right to make reasonable changes to the size,
configuration, design, layout and all other aspects of the Project parking areas
and improvements at any time upon thirty (30) days' prior written notice to
Tenant and Tenant acknowledges and agrees that Landlord may, without incurring
any liability to Tenant and without any abatement of Rent under this Lease, from
time to time, temporarily close-off or restrict access to portions of the
Project parking areas for purposes of permitting or facilitating any such
construction, alteration or improvements; provided, however, that Landlord will
undertake reasonable efforts to minimize the number of parking spaces affected
by and the duration of any such temporary restrictions on use of the parking
areas, and Landlord's exercise of the foregoing right shall not materially,
adversely interfere with either Tenant's use of, occupancy of, or access to the
Premises or the Common Areas. In no event shall the number of parking spaces at
the Project be permanently reduced below the greater of: 1,423 or any minimum
parking ratio required under Applicable Laws.
Landlord may delegate its responsibilities hereunder to a parking operator in
which case such parking operator shall have all the rights of parking area
control attributed hereby to the Landlord. The parking spaces available to
Tenant pursuant to this ARTICLE 28 are provided to Tenant solely for use by the
Tenant Parkers and such spaces may not be transferred, assigned, subleased or
otherwise alienated by Tenant, except on a pro-rata basis in connection with an
assignment or subletting of the Premises permitted or approved in accordance
with the TCCs of ARTICLE 14. Tenant shall not utilize any of the Project parking
areas for the overnight storage of vehicles owned by Tenant or its employees,
agents or contractors.
Notwithstanding anything to the contrary in this Lease contained, unless
Landlord and Tenant otherwise agree: (i) Tenant shall not be responsible for the
cost of constructing additional parking unless Tenant elects to utilize such
parking, and (ii) if a parking structure is built within the area shown as
"PREFERRED PARKING AREA" on EXHIBIT B, Tenant shall have non-exclusive use of at
least the number of parking spaces that are displaced by the construction of
said parking structure, within said parking structure, or in another location as
close to Building 3 as the lost parking, without additional charge.
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Eleven (11) parking spaces within the area at the front of Building 3 shown as
the "RESTRICTED PARKING AREA" on EXHIBIT B, shall be designated as reserved for
visitor and handicapped for Tenant (and shall be included in the number of
spaces referred to in SECTION 9 of the Summary). Landlord reserves the right to
reconfigure the Restricted Parking Area to increase the number of parking spaces
in the Restricted Parking Area in conformance with the plan attached hereto as
EXHIBIT M.
ARTICLE 29
MISCELLANEOUS PROVISIONS
29.1 TERMS; CAPTIONS. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. The necessary grammatical
changes required to make the provisions hereof apply either to corporations or
partnerships or individuals, men or women, as the case may require, shall in all
cases be assumed as though in each case fully expressed. The captions of
Articles and Sections are for convenience only and shall not be deemed to limit,
construe, affect or alter the meaning of such Articles and Sections.
29.2 BINDING EFFECT. Subject to all other provisions of this Lease,
each of the covenants, conditions and provisions of this Lease shall extend to
and shall, as the case may require, bind or inure to the benefit not only of
Landlord and of Tenant, but also of their respective heirs, personal
representatives, successors and/or assigns, provided this clause shall not
permit any assignment by Tenant contrary to the provisions of ARTICLE 14 of this
Lease.
29.3 NO AIR RIGHTS. No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease. If at any time any windows of the Premises are temporarily
darkened or the light or view therefrom is obstructed by reason of any repairs,
improvements, maintenance or cleaning in or about the Project, the same shall be
without liability to Landlord and without any reduction or diminution of
Tenant's obligations under this Lease.
29.4 TRANSFER OF LANDLORD'S INTEREST. Tenant acknowledges that
Landlord has the right to transfer all or any portion of its interest in the
Project or Building and in this Lease, and Tenant agrees that, on the condition
that the successor to Landlord's interest assumes Landlord's obligations under
the Lease arising after the date of transfer, in the event of any such transfer,
Landlord shall automatically be released from all liability under this Lease not
accrued on or prior to the date of the transfer, and Tenant agrees to look
solely to such transferee for the performance of Landlord's obligations
hereunder for events occurring after the date of transfer and to attorn to such
transferee. Tenant further acknowledges that Landlord may assign its interest in
this Lease to a mortgage lender as additional security. Landlord acknowledges
that to the extent any Landlord obligation or liability under this Lease is
accrued prior to the date of such transfer or assignment which is not assumed by
the transferee or assignee, the same shall remain an obligation of Landlord.
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29.5 PROHIBITION AGAINST RECORDING. Neither this Lease, nor any
memorandum, affidavit or other writing with respect thereto, shall be recorded
by Tenant or by anyone acting through, under or on behalf of Tenant, without
Landlord's written consent thereto.
29.6 LANDLORD'S TITLE. Landlord's title is and always shall be
paramount to the title of Tenant. Nothing herein contained shall empower Tenant
to do any act which can, shall or may encumber the title of Landlord.
29.7 RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall be
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant.
29.8 APPLICATION OF PAYMENTS. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease, regardless of Tenant's
designation of such payments, to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord, in its sole discretion, may elect.
29.9 TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.
29.10 PARTIAL INVALIDITY. If any term, provision or condition contained
in this Lease shall, to any extent, be invalid or unenforceable, the remainder
of this Lease, or the application of such term, provision or condition to
persons or circumstances other than those with respect to which it is invalid or
unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
29.11 NO WARRANTY. In executing and delivering this Lease, Tenant has
not relied on any representations (except as specifically set forth in this
Lease), including, but not limited to, any representation as to the amount of
any item comprising Additional Rent or the amount of the Additional Rent in the
aggregate or that Landlord is furnishing the same services to other tenants, at
all, on the same level or on the same basis, or any warranty or any statement of
Landlord which is not set forth herein or in one or more of the exhibits
attached hereto.
29.12 LANDLORD EXCULPATION. The liability of Landlord or the Landlord
Parties to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with Landlord's operation, management, leasing, repair,
renovation, alteration or any other matter relating to the Project or the
Premises shall be limited solely and exclusively to an amount which is equal to
the interest of Landlord in the Project (which interest shall include sale,
insurance and taking proceeds, the future rents, income and profits from the
Project, and Landlord's insurance coverages). Neither Landlord, nor any of the
Landlord Parties shall have any personal liability relating to the Premises, the
Project, the Building or this Lease, and Tenant hereby expressly waives and
releases such personal liability on behalf of itself and all persons claiming
by, through or under Tenant. The limitations of liability contained in this
SECTION 29.12 shall inure to the benefit of Landlord's and the Landlord Parties'
present and future partners, beneficiaries, officers, directors, trustees,
shareholders, agents and employees, and their respective partners, heirs,
successors and assigns. Under no circumstances shall any present or future
partner of
63
Landlord (if Landlord is a partnership), or trustee or beneficiary (if Landlord
or any partner of Landlord is a trust), or member (if Landlord is a limited
liability company) have any liability for the performance of Landlord's
obligations under this Lease.
29.13 ENTIRE AGREEMENT. It is understood and acknowledged that there
are no oral agreements between the parties hereto affecting this Lease and this
Lease and the exhibits attached hereto constitute the parties' entire agreement
with respect to the leasing of the Premises and supersedes and cancels any and
all previous negotiations, arrangements, brochures, agreements and
understandings, if any, between the parties hereto or displayed by Landlord to
Tenant with respect to the subject matter thereof, and none thereof shall be
used to interpret or construe this Lease. None of the TCCs of this Lease can be
modified, deleted or added to except in writing signed by the parties hereto.
29.14 RIGHT TO LEASE. Subject to SECTION 5.2 hereof: (i) Landlord
reserves the absolute right to effect such other tenancies in the Project as
Landlord in the exercise of its sole business judgment shall determine to best
promote the interests of the Building or Project, and (ii) Tenant does not rely
on the fact, nor does Landlord represent, that any specific tenant or type or
number of tenants shall, during the Lease Term, occupy any space in the Building
or Project.
29.15 FORCE MAJEURE. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God (including inclement weather), inability
to obtain utilities (subject to the provisions of SECTION 6.3), labor, or
materials or reasonable substitutes therefor, governmental actions, civil
commotions, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, except with respect to the
obligations imposed with regard to Rent and other charges to be paid by Tenant
pursuant to this Lease (collectively, a "FORCE MAJEURE"), notwithstanding
anything to the contrary contained in this Lease, shall excuse the performance
of such party for a period equal to any such prevention, delay or stoppage and,
therefore, if this Lease specifies a time period for performance of an
obligation of either party (other than and excluding the obligation to pay Rent
and Additional Rent), that time period shall be extended by the period of any
delay in such party's performance caused by a Force Majeure; provided, however,
except as set forth in Article 11, such extension shall not exceed sixty (60)
consecutive days. The provisions of this SECTION 29.15 shall not extend or delay
Tenant's rights under SECTIONS 6.4 or under SECTION 11.3, except to the extent
expressly provided in SECTION 11.3.
29.16 NOTICES. All notices, demands, statements, designations,
approvals or other communications (collectively, "NOTICES") given or required to
be given by either party to the other hereunder or by law shall be in writing,
shall be (A) sent by United States certified or registered mail, postage
prepaid, return receipt requested ("MAIL"), (B) transmitted by telecopy, if such
telecopy is promptly followed by a Notice sent by Mail or recognized overnight
courier, (C) delivered by a nationally recognized overnight courier, or (D)
delivered personally. Any Notice shall be sent, transmitted, or delivered, as
the case may be, to Tenant at the appropriate address set forth below, or to
such other place as Tenant may from time to time designate in a Notice to
Landlord, or to Landlord at the addresses set forth below, or to such other
places as Landlord may from time to time designate in a Notice to Tenant. Any
Notice will be deemed given (i) three (3) days after the date it is posted if
sent by Mail, (ii) the date the telecopy is transmitted, (iii) the date the
overnight courier delivery is made, or (iv) the date personal delivery
64
is made or attempted to be made as required under that agreement. As of the
Effective Date, any Notices to Landlord and Tenant must be sent, transmitted, or
delivered, as the case may be, to the following addresses:
LANDLORD:
000 Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, General Counsel
with copies to:
Berwind Property Group, Ltd.
0000 Xxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
TENANT:
CYTYC Corporation
00 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
With a copy to:
CYTYC Corporation
00 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: CFO and Controller
MORTGAGEE:
Xxxxx Fargo Bank, National Association
c/o Real Estate Group
Two Xxxxx Square
000-000 X. 00xx Xxxxxx
Xxxxx 0000 (00xx Xxxxx)
Xxxxxxxxxxxx, XX 00000
Attn: Manager, Loan Administration
29.17 JOINT AND SEVERAL. If there is more than one Tenant, the
obligations imposed upon Tenant under this Lease shall be joint and several.
29.18 AUTHORITY. Each individual executing this Lease hereby represents
and warrants that Landlord or Tenant, as applicable, is a duly formed and
existing entity qualified to do
65
business in the Commonwealth of Massachusetts and has full right and authority
to execute and deliver this Lease and that each person signing on behalf of
Landlord or Tenant is authorized to do so.
29.19 ATTORNEYS' FEES. In the event that either Landlord or Tenant
should bring suit for the possession of the Premises or the Building, for the
recovery of any sum due under this Lease, or because of the breach of any
provision of this Lease or for any other relief against the other, then all
costs and expenses, including reasonable attorneys' fees, incurred by the
prevailing party therein shall be paid by the other party, which obligation on
the part of the other party shall be deemed to have accrued on the date of the
commencement of such action and shall be enforceable whether or not the action
is prosecuted to judgment or disposed of through settlement or otherwise.
29.20 GOVERNING LAW. This Lease shall be construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts. Except as
otherwise provided herein, all disputes arising hereunder, and all legal actions
and proceedings related thereto, shall be solely and exclusively initiated and
maintained in the court with the appropriate jurisdiction located in the
Commonwealth of Massachusetts. IN ANY ACTION OR PROCEEDING ARISING HEREFROM,
LANDLORD AND TENANT HEREBY CONSENT TO (I) THE JURISDICTION OF ANY COMPETENT
COURT WITHIN THE COMMONWEALTH OF MASSACHUSETTS, AND (II) SERVICE OF PROCESS BY
ANY MEANS AUTHORIZED BY MASSACHUSETTS LAW. IN THE EVENT LANDLORD COMMENCES ANY
SUMMARY PROCEEDINGS OR ACTION FOR NONPAYMENT OF BASE RENT OR ADDITIONAL RENT,
TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF ANY NATURE OR DESCRIPTION (UNLESS
SUCH COUNTERCLAIM SHALL BE MANDATORY) IN ANY SUCH PROCEEDING OR ACTION, BUT
SHALL BE RELEGATED TO AN INDEPENDENT ACTION AT LAW.
29.21 SUBMISSION OF LEASE. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of, option
for or option to lease, and it is not effective as a lease or otherwise until
execution and delivery by both Landlord and Tenant.
29.22 BROKERS. Landlord and Tenant hereby warrant to each other that
they have had no dealings with any real estate broker or agent in connection
with the negotiation of this Lease, excepting only the real estate brokers or
agents specified in SECTION 12 of the Summary (the "BROKERS"), and that they
know of no other real estate broker or agent who is entitled to a commission in
connection with this Lease. Landlord shall pay a commission or brokerage fee to
the Brokers pursuant to separate written agreements between Landlord and each
Broker. Each party agrees to indemnify and defend the other party against and
hold the other party harmless from any and all claims, demands, losses,
liabilities, lawsuits, judgments, costs and expenses (including without
limitation reasonable attorneys' fees) with respect to any leasing commission or
equivalent compensation alleged to be owing on account of any dealings with any
real estate broker or agent, other than the Brokers, occurring by, through, or
under the indemnifying party.
29.23 INDEPENDENT COVENANTS. As a material inducement for Landlord and
Tenant to enter into this Lease, both Landlord and Tenant acknowledge and agree
that, subject to Tenant's rights under SECTIONS 6.4 and 19.8, this Lease shall
be construed as though the covenants herein
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between Landlord and Tenant are independent and not dependent and Tenant hereby
expressly waives the benefit of any currently existing or hereinafter enacted
statute or case law to the contrary and agrees that if Landlord fails to perform
its obligations set forth herein, except as otherwise expressly set forth in
this Lease, Tenant shall not be entitled to make any repairs or perform any acts
hereunder at Landlord's expense or to any setoff of the Rent or other amounts
owing hereunder against Landlord or to terminate this Lease as a result of
Landlord's failure to perform or refraining from performing any covenant or
obligation of Landlord hereunder.
29.24 PROJECT OR BUILDING NAME AND SIGNAGE. Landlord shall have the
right at any time to change the name of the Project or Building and to install,
affix and maintain any and all signs on the exterior and on the interior of the
Project or Building as Landlord may, in Landlord's sole discretion, desire.
Tenant shall not use the name of the Project or Building or use pictures or
illustrations of the Project or Building in advertising or other publicity or
for any purpose other than as the address of the business to be conducted by
Tenant in the Premises, without the prior written consent of Landlord. Landlord
shall have the right to prohibit the use of the name of the Project or any other
publicity by Tenant that in Landlord's reasonable opinion impairs the reputation
of the Project or its desirability for Landlord or other tenants. Upon written
notice from Landlord, Tenant will refrain from and/or discontinue such publicity
immediately.
29.25 COUNTERPARTS. This Lease may be executed in counterparts with the
same effect as if both parties hereto had executed the same document. Both
counterparts shall be construed together and shall constitute a single lease.
Signatures may be made by facsimile provided the original is promptly delivered
to the other party by overnight courier.
29.26 CONFIDENTIALITY. Each party hereby acknowledges that the contents
of this Lease and any related documents are confidential information. Each party
shall keep such confidential information strictly confidential and shall not
disclose such confidential information to any person or entity other than such
party's partners, administrators, consultants, financial, legal, and space
planning consultants, a prospective transferee, partner, or financing source,
and except as required by Applicable Law or in connection with a dispute or
litigation hereunder or as required by subpoena or as required by order of
governmental authority. Landlord agrees that, except in case of emergencies
threatening injuries to persons or damage to property, Tenant may require any
Landlord Party to execute a reasonable confidentiality statement prior to its
entry into Tenant's Premises to protect against the disclosure of Tenant's
proprietary information.
29.27 CONSENT NOT TO BE UNREASONABLY WITHHELD. Wherever in this Lease
it is provided that the consent or approval of either party is not to be
unreasonably withheld, such consent shall be unreasonably withheld, conditioned,
or delayed.
29.28 BUILDING RENOVATIONS. Except as expressly set forth in Section
1.2 of this Lease, Landlord has no obligation and has made no promises to alter,
remodel, improve, renovate, repair or decorate the Premises, Building, or any
part thereof and Tenant acknowledges that, except as expressly set forth in
SECTION 5.5, no representations or warranties respecting the condition of the
Premises or the Building have been made by Landlord to Tenant. However, Tenant
hereby acknowledges that, subject, however, to the provisions of this Section
1.4, Landlord may during the Lease Term renovate, improve, alter, or modify
(collectively, the "RENOVATIONS") the Project (excluding the Premises), the
parking areas, the Common Areas of
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the Project, and systems and equipment, roof, and structural portions of the
same. Subject to SECTION 6.4, Tenant hereby agrees that such Renovations and
Landlord's actions in connection with such Renovations shall in no way
constitute a constructive eviction of Tenant nor entitle Tenant to any abatement
of Rent. Subject to SECTION 6.4, Landlord shall have no responsibility or for
any reason be liable to Tenant for any direct or indirect injury to or
interference with Tenant's business arising from the Renovations, nor shall
Tenant be entitled to any compensation or damages from Landlord for loss of the
use of the whole or any part of the Premises or the Building or of Tenant's
personal property or improvements resulting from the Renovations or Landlord's
actions in connection with such Renovations, or for any inconvenience or
annoyance occasioned by such Renovations or Landlord's actions provided the
performance of such Renovations does not materially adversely interfere with
Tenant's use or occupancy of the Premises, the Building, the Project or the
Common Areas for the Permitted Use. Nothing in this SECTION 29.28 (but subject
to ARTICLE 10) shall relieve Landlord for any liability which it may have based
upon injuries to persons or damage to property caused by the negligence or
willful misconduct of Landlord, or Landlord's agents, employees or contractors.
29.29 NO VIOLATION. Landlord and Tenant hereby warrant and represent
that neither its execution of nor performance under this Lease shall cause
either party to be in violation of any agreement, instrument, contract, law,
rule or regulation by which it is bound, and each party shall protect, defend,
indemnify and hold the other harmless against any claims, demands, losses,
damages, liabilities, costs and expenses, including, without limitation,
reasonable attorneys' fees and costs, arising from Tenant's breach of this
warranty and representation.
29.30 COMMUNICATIONS AND COMPUTER LINES.
Landlord may have provided certain data, voice, and telecommunications
infrastructure to the boundary of the Building, which Tenant accepts on an
"as-is" basis, and Tenant shall be responsible for expansion and maintenance of
such infrastructure within the Premises and the Building. Tenant shall have the
use of any existing communications or computer wires and cables (collectively,
the "Lines") located within the Premises and, subject to the provisions of
ARTICLE 8 (including, without limitation, Landlord's conditioning its approval
upon the restoration of any portion of the Project disturbed by such
installation) shall have the right at its sole cost and expense to install its
own wires, cables, conduits, auxiliary equipment and other related equipment and
facilities from the public street into the Project, the Building and the
Premises. LANDLORD SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS AND/OR WARRANTIES,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR
A PARTICULAR PURPOSE WITH RESPECT TO THE EXISTING CABLE TRAY SYSTEM, THE LINES
AND ANY OTHER COMMUNICATIONS AND COMPUTER LINES AND FIBER NETWORKING IN THE
BUILDING, AND TENANT ACCEPTS SAME IN THEIR "AS-IS" CONDITION.
29.31 HAZARDOUS MATERIALS. Landlord and Tenant agree as follows with
respect to the existence or use of "Hazardous Material" in or on the Premises
and/or the Project:
29.31.1 Tenant, at its sole cost and expense, shall comply with
all laws, statutes, ordinances, rules and regulations of any local, state or
federal governmental authority (including, without limitation, the Fire
Department of the City of Marlborough, and the Local Emergency
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Planning Committee, if any) having jurisdiction concerning environmental, health
and safety matters (collectively, "ENVIRONMENTAL LAWS"), including, but not
limited to, any discharge into the air, surface, water, sewers, soil or
groundwater of any Hazardous Material (as defined in SUBSECTION 29.31.3, below),
whether within or outside the Premises or Building, within the Project.
Notwithstanding the foregoing, nothing contained in this Lease requires, or
shall be construed to require, Tenant to incur any liability related to or
arising from: (i) environmental conditions which existed within the Premises or
the Project prior to the date Tenant took possession of Space A, or (ii) any
acts or omissions of anyone other than Tenant, Tenant's successors and/or
assigns, any subtenant or licensee of the Premises, and their respective agents,
employees, contractors and invitees (individually, a "TENANT PARTY", and
collectively (including Tenant) "TENANT PARTIES").
29.31.2 Tenant shall not cause or consent to any Hazardous
Material being brought upon, handled, kept, stored or used in or about the
Building or otherwise in the Project by Tenant, its agents, employees, or
contractors or invitees, unless the same are used, stored, handled and disposed
of in compliance with all applicable Environmental Laws and with good scientific
and medical practice, and provided further that all such materials shall be
removed from the Premises, Building and the Project prior to the expiration or
earlier termination of this Lease in accordance with all applicable laws at the
sole cost and expense of Tenant. Landlord hereby acknowledges that, as of the
commencement of the Term, Tenant intends to use the materials ("Permitted
Hazardous Materials") listed on EXHIBIT H in accordance with all Applicable
Laws. Tenant shall give Landlord written notice of its handling, storage, or use
of any Hazardous Substance in or about the Premises and the Building with
respect to which it is required to give written notice or a report to any
governmental agency or authority, or obtain or maintain a license to handle,
within thirty (30) days after the date it is required to give such notice or
report to said governmental agency or authority. Upon Landlord's written
request, but not more often than monthly, Tenant shall provide Landlord with an
updated list of all Hazardous Materials brought upon, handled, kept, stored or
used in or about the Premises and/or the Building. Notwithstanding the
foregoing, with respect to any of Tenant's Hazardous Material which Tenant does
not properly handle, store or dispose of in compliance with all applicable
Environmental Laws and good scientific and medical practice, Tenant shall, upon
written notice from Landlord, no longer have the right to bring such material
into the buildings or the Project until Tenant has demonstrated, to Landlord's
reasonable satisfaction, that Tenant has implemented programs to thereafter
properly handle, store or dispose of such material.
29.31.3 As used herein, the term "Hazardous Material" means any
flammable substances, explosives, and radioactive materials, and any hazardous
or toxic substance, material or waste or petroleum derivative which is or
becomes regulated by any Environmental Law, specifically including live
organisms, viruses and fungi, medical waste, and so-called "biohazard"
materials. The term "Hazardous Material" includes, without limitation, any
material or substance which is (i) designated as a "hazardous substance"
pursuant to Section 1311 of the Federal Water Pollution Control Act (33 U.S.C.
Section 1317), (ii) defined as a "hazardous waste" pursuant to Section 1004 of
the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et
seq. (42 U.S.C. Section 6903), (iii) defined as a "hazardous substance" pursuant
to Section 101 of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601), (iv)
defined as
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"hazardous substance" or "oil" under Chapter 21E of the General Laws of
Massachusetts, or (v) a so-called "biohazard" or medical waste, or is
contaminated with blood or other bodily fluids; and "Environmental Laws"
include, without limitation, the laws listed in the preceding clauses (i)
through (iv).
29.31.4 Any increase in the premium for necessary insurance on
the Premises or the Building or the Project which arises from Tenant's use
and/or storage of Hazardous Materials shall be solely at Tenant's expense.
Landlord hereby acknowledges and agrees that Permitted Hazardous Materials, as
defined in Section 29.31.2, will not currently cause any increase in premium
chargeable to Tenant, so long as the same are used, stored, handled and disposed
of in compliance with all applicable Environmental Laws and with good scientific
and medical practice. Tenant shall procure and maintain at its sole expense such
additional insurance as may be necessary to comply with any requirement of any
Federal, State or local government agency with jurisdiction.
29.31.5 Tenant hereby covenants and agrees to indemnify, defend
and hold Landlord harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses (collectively "Losses") which
Landlord may reasonably incur arising out of contamination of real estate, the
Project or other property not a part of the Premises, which contamination arises
as a result of: (i) the presence of Hazardous Material in the Premises or the
Building or the Project, the presence of which is caused by or consented to by
Tenant, or (ii) from a breach by Tenant of its obligations under this SECTION
29.31. This indemnification of Landlord by Tenant includes, without limitation,
reasonable costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any
federal, state or local governmental agency or political subdivision because of
Hazardous Material present in the soil or ground water on or under the Premises
or the Building based upon the circumstances identified in the first sentence of
this SUBSECTION 29.31.5. The indemnification and hold harmless obligations of
Tenant under this SUBSECTION 29.31.5 shall survive any termination of this
Lease. Without limiting the foregoing, if the presence of any Hazardous Material
in the buildings or otherwise in the Project caused or permitted by Tenant
results in any contamination of the Premises or the Building, Tenant shall
promptly take all actions at its sole expense as are necessary to return the
Premises and the Building to a condition which complies with all Environmental
Laws; provided that Landlord's approval of such actions shall first be obtained,
which approval shall not be unreasonably withheld so long as such actions, in
Landlord's reasonable discretion, would not potentially have any materially
adverse long-term or short-term effect on the Premises and/or the Building, and,
in any event, Landlord shall not withhold its approval of any proposed actions
which are required by applicable Environmental Laws. Notwithstanding anything to
the contrary in the Lease contained, Tenant shall not be responsible for: (i)
any Hazardous Materials which existed in the Building as of May 28, 2003 with
respect to the third floor of the Building, or which existed elsewhere (through
no fault of Tenant or any Tenant Party) in the Building or the Project as of the
Effective Date, or (ii) any Hazardous Materials introduced to the Project by
anyone other than Tenant or a Tenant Party, as defined in Section 29.31.1 above.
29.31.6 Landlord hereby represents to Tenant that, to the
Landlord's knowledge, based solely on the environmental assessment report listed
on EXHIBIT G (the "Environmental
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Report"), there are no Hazardous Materials located in the Premises, the Building
or elsewhere in the Project, except as set forth in the Environmental Report.
Landlord hereby covenants and agrees to indemnify, defend and hold Tenant
harmless from any and all Losses which Tenant may reasonably incur during the
Term of this Lease arising out of contamination of real estate, the Project or
other property not a part of the Building, which contamination arises as a
result of the breach by Landlord of its representations and agreements set forth
in this Section 29.31. If any Hazardous Materials are discovered on the Property
during the Term of this Lease which were not introduced by Tenant or any other
Tenant Parties, and the presence of such Hazardous Materials materially
adversely affects Tenant's use and occupancy of the Premises, then Landlord
shall remediate or remove, or take steps to require the responsible parties to
remediate or remove, such Hazardous Materials, without charge to Tenant, when,
if, and in the manner required by applicable Environmental Laws.
29.31.7 Notwithstanding anything to the contrary in this Lease,
if Tenant fails to cure any breach or default of this SECTION 29.31 within ten
(10) days after written notice from Landlord, such failure shall constitute a
default under this Lease, provided, however, if the nature of the default is
such that more than ten (10) days are required for its cure or performance, then
Tenant shall not be in default under this Lease if it shall commence such
performance within such ten (10) day period and thereafter diligently and
continuously pursues the same to completion within sixty (60) days, or if
earlier, prior to the expiration or earlier termination of this Lease.
29.31.8 Tenant shall, after Tenant, and anyone claiming by,
through or under Tenant, vacate the Premises, and immediately prior to the time
that Tenant delivers the Premises to Landlord: (i) if Tenant has used the
Premises or the Building in such a way that the following is required by
Applicable Law, cause the Premises and the Building, as applicable, to be
decommissioned in accordance with the regulations of the U.S. Nuclear Regulatory
Commission and/or the Massachusetts Department of Public Health for the control
of radiation; (ii) if Tenant has used the Premises or the Building in such a way
that the following is required by Applicable Law, provide a written report by a
licensed industrial hygienist or equivalent to confirm that the Premises and the
Building contain no contaminants per the National Institute of Health (or its
successor organization) rules and regulations on bio-safety as administered by
the Department of Health; and (iii) if Tenant is required by Applicable Law to
maintain a chemical or hazardous waste removal manifest, provide a copy of its
most current waste removal manifest and a certification from an officer of
Tenant that no chemicals remain in the Building.
29.31.9 Landlord shall have the right from time to time, but
not more often than once per year unless Landlord has a reasonable basis to
believe that an audit is required, to conduct (or retain one or more consultants
to conduct) environmental audits of the Premises and/or the Building to ensure
and verify Tenant's compliance with this SECTION 29.31, upon five (5) business
days advance written notice to Tenant. Tenant agrees to cooperate with the
person or entity conducting said audit and to supply all information reasonably
requested in connection therewith. Tenant shall pay the cost of such audit if
such audit discloses that Tenant has materially violated any of the provisions
of this SECTION 29.31; otherwise, the cost of said audit shall be paid for by
Landlord.
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29.31.10 Tenant shall dispose of all Hazardous Materials and
other hazardous or medical wastes or substances used, stored or generated by
Tenant or in connection with Tenant's use of the Premises and/or the Building,
in accordance with all Applicable Laws at Tenant's sole cost and expense. Tenant
shall give Landlord written notice annually (and from time to time, if changed)
of the name, address and telephone number of the contractor that will be
responsible for removal of all Hazardous Materials disposed of by Tenant from
the Premises and/or the Building and/or the Project.
29.31.11 Tenant shall provide Landlord with a copy of its
Chemical Hygiene Plan (as set forth in OSHA 1910.1450) annually, or more often
as and when it is amended.
29.32 DEVELOPMENT OF THE PROJECT.
29.32.1 SUBDIVISION, ADDITIONAL IMPROVEMENTS. Subject to the
requirements of ARTICLE 28, Landlord reserves the right to further subdivide all
or a portion of the Project and to add to, remove, or otherwise change the
parking areas and Common Areas, including, without limitation, the construction
of additional buildings within the Project; provided however, that no such
changes shall materially adversely affect Tenant's use of, or access to the
Premises, and no structure other than a "connector" which is not more than one
story in height, linking one or more buildings or structures, shall be
constructed in the "LOW BUILD AREA" as shown on EXHIBIT B. Any such changes to
the Preferred Parking Area shall be subject to the provisions set forth in
ARTICLE 28, above. In the event of any such change, an equitable adjustment to
the Tenant's Share, if appropriate, shall be made.
29.32.2 OTHER IMPROVEMENTS. If portions of the Project or
property adjacent to the Project (collectively, the "OTHER IMPROVEMENTS") are
owned by an entity other than Landlord, Landlord, at its option, may enter into
an agreement with the owner or owners of any or all of the Other Improvements to
provide (i) for reciprocal rights of access and/or use of the Project and the
Other Improvements, (ii) for the common management, operation, maintenance,
improvement and/or repair of all or any portion of the Project and the Other
Improvements, (iii) for the allocation of a portion of the Direct Expenses to
the Other Improvements and the operating expenses and taxes for the Other
Improvements to the Project, and (iv) for the use or improvement of the Other
Improvements and/or the Project in connection with the improvement,
construction, and/or excavation of the Other Improvements and/or the Project,
provided however that no such agreement shall materially adversely affect
Tenant's use of, or access to, the Premises or the Common Areas, nor shall any
such agreement materially adversely affect Tenant's rights under this Lease.
29.32.3 CONSTRUCTION OF PROJECT AND OTHER IMPROVEMENTS. Tenant
acknowledges that portions of the Project and/or the Other Improvements may be
under construction following Tenant's occupancy of the Premises, and that such
construction may result in levels of noise, dust, obstruction of access, etc.
which are in excess of that present in a fully constructed project. Subject to
SECTION 6.4, Tenant hereby waives any and all rent offsets or claims of
constructive eviction which may arise in connection with such construction,
provided such construction by Landlord does not interfere with Tenant's use or
occupancy of the Premises, the Project or the Common Areas for the Permitted
Use.
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29.33 NO CONSEQUENTIAL DAMAGES. Notwithstanding any provision
of this Lease to the contrary, except as specifically set forth in ARTICLE 16 of
this lease, under no circumstances shall either party hereto be liable to the
other party for any consequential, incidental or special damages.
29.34 COMPLIANCE WITH TIF AGREEMENT. Landlord and Tenant acknowledge
that there is a Tax Increment Financing Agreement by and between the City of
Marlborough and BNP Leasing Corporation dated January 31, 1997, as amended by an
Agreement by and between the City of Marlborough and 3Com Corporation dated
February 25, 2002, and as further amended by an Agreement by and between the
City of Marlborough and Landlord dated as of September 12, 2003 concerning the
Property (the "TIF Agreement"). Tenant agrees to provide Landlord, within ten
(10) business days of written request from Landlord made on an annual basis with
a statement substantially in the form attached hereto as EXHIBIT F for the prior
fiscal year ending June 30, and a statement setting forth the total number of
jobs located at the Premises for the same period, and such other information as
may reasonably be requested by Landlord (provided that Tenant shall not be
required to incur any third party costs to obtain such information) to
facilitate Landlord's compliance with any requirements of the TIF Agreement.
Landlord shall not amend the TIF Agreement or enter into any other agreement
with the City of Marlborough affecting the payment of Tax Expenses or other
payments in lieu of Tax Expenses, which would be adverse to Tenant, without
obtaining Tenant's prior written consent.
29.35 TENANT'S FINANCIAL CONDITION. Within ten (10) business days after
written request from Landlord, but not more than once in any twelve month
period, Tenant shall deliver to Landlord such financial statements as are
reasonably required by Landlord to verify the net worth of Tenant, or any
assignee, subtenant, or guarantor of Tenant. Landlord agrees that, so long as
Tenant is a publicly owned company listed on a nationally recognized United
States stock exchange, the publicly released financial statements shall satisfy
the requirements of this Section 29.35. Tenant represents and warrants to
Landlord that each such financial statement is a true and accurate statement as
of the date of such statement. All financial statements shall be confidential
and shall be used only for the purposes set forth herein.
29.36 EXHIBITS. The exhibits listed in the Table of Contents and
attached hereto, are hereby incorporated in, and made a part of, this Lease by
reference.
ARTICLE 30
USE OF ROOF
30.1 USE OF ROOF. Notwithstanding anything to the contrary contained
in this Lease, Tenant shall only have the right to use the roof of the Building
for the purposes permitted pursuant to this Article 30 and subject to the
restrictions set forth in this Article 30. Subject to (a) Landlord's reasonable
approval (including, without limitation, approval as to size and location), (b)
Tenant's obtaining all governmental approvals, and (c) the provisions and
conditions of this Article 30 and of Article 8, above, Tenant shall have the
right to install satellite or antenna devices for the sole use of Tenant, and
its permitted subtenants and assignees (in accordance with Article 14), HVAC
units, generators, skylights and similar equipment, and other
73
installations or alterations approved by Landlord, which approval shall not be
unreasonably withheld (collectively, "Rooftop Installations") on the roof of the
Building, at Tenant's sole cost and expense, subject to local laws and
ordinance. Notwithstanding anything to the contrary contained in this Lease,
under no circumstances shall Tenant be permitted to place a cell tower,
billboard or other signage on the roof of the Building without Landlord's
written consent, which consent may be withheld in the sole and absolute
discretion of Landlord. Tenant agrees and hereby covenants to Landlord as
follows:
30.1.1 The Rooftop Installations shall not project more than
ten feet above the roof surface of the Building, unless otherwise approved by
Landlord which approval shall not be unreasonably withheld, and, if any Rooftop
Installation is visible from the ground level within a reasonable vicinity of
the Building, Landlord shall have the right to require reasonable shielding or
screening;
30.1.2 Installation, service, repair, maintenance and removal
of the Rooftop Installations shall be performed by a reputable contractor that
has been approved by Landlord in writing, which approval shall not be
unreasonably withheld. Tenant shall have access to the roof of the Building for
the purposes of such installation, service, repair, maintenance and removal,
only upon at least twenty-four hours advance notice to Landlord and Landlord's
property manager and/or when accompanied by Landlord's agent or property
manager, except in case of an emergency Tenant shall give Landlord oral notice
as soon as reasonably possible;
30.1.3 The provisions of Section 5.3 shall specifically apply
to the Rooftop Installations;
30.1.4 Tenant shall be solely liable for the installation,
maintenance, repair and removal of the Rooftop Installations, and shall, at
Landlord's request, or as required pursuant to SECTION 8.5 above, remove the
Rooftop Installations and repair any damage caused by such removal prior to the
expiration or earlier termination of the Lease. The installation of the Rooftop
Installations and operation, maintenance and removal of the Rooftop
Installations shall be performed (i) in a good and workmanlike manner, so that
they would not create a hazard to life or property; (ii) in compliance with all
applicable federal, state and local laws, regulations and ordinances, (iii) with
due care and regard for safety and in a manner that will not cause injury or
death to persons or damage to property; (iv) so that no lien or other
encumbrance shall be placed on any portion of the Project, and (v) in a way that
will not limit or void any warranty on the roof nor cause nor permit leaking of
the roof, nor impair the structural integrity of any building in the Project.
Any roof penetrations shall be subject to the provisions of SECTION 8.6, above.
In the event that the installation, maintenance, repair and/or removal of the
Rooftop Installations causes any roof leaks, notwithstanding anything to the
contrary contained in this Lease, Tenant shall be solely liable for the repair
of such leaks, and for all damage resulting therefrom.
30.1.5 Subject to the provisions of ARTICLE 8 above, Tenant
shall provide such additional structural support as may be reasonably required
for such Rooftop Installations, at Tenant's sole cost and expense, provided
however, that no support columns may be added without Landlord's express written
consent (which shall not be unreasonably withheld provided that there is no
outstanding uncured material monetary Event of Default (as defined in Section
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19.2.1 (iv)), and any work required to reinforce the floors or to increase
loading capacity shall not interfere with or diminish the usability of other
space in the Building, nor reduce the rentable square footage of the Building,
unless Tenant agrees to restore such usability or rentable square footage, as
the case may be, on or before the expiration or prior termination of the Term.
30.1.6 Landlord agrees that it will not utilize the roof of
the Building for the location of any equipment that is not intended to service
the Building. Notwithstanding anything to the contrary contained in this Lease,
under no circumstances shall either Landlord or Tenant place a sign on the roof
of the Building, without the express written consent of the other party, which
consent may be withheld in the sole discretion of the responding party.
ARTICLE 31
RIGHT OF FIRST OFFER TO LEASE ADDITIONAL SPACE
31.1 (a) Provided that there are no Default Conditions (as defined in
SECTION 2.2, above) as of the date the offer is made, the date the offer is
accepted, and as of the date of commencement of the term of the lease with
respect to such space, Tenant shall have the following rights of first offer to
lease additional space in the Project (such rights to be exercised as more fully
set forth in subsection 31.1(b) below):
(i) Subject to the rights of 3Com Corporation and its successors
and/or assigns under its lease (as such lease may be extended, renewed, amended
or modified) (collectively, "3Com") now existing or hereafter granted by
Landlord (and/or its successors and/or assigns), during the Term of this Lease
Tenant shall have a right of first offer to lease with respect to two floors of
space in Building 2 (as shown on EXHIBIT B attached hereto). The two floors
shall be the first two floors to become available after 3Com vacates Building 2
or any portion thereof, unless all four floors are expected to become available
at the same time, in which case, the right shall apply only to the top two
floors of Building 2 (the "INITIAL OFFER SPACE"). Tenant's right of first offer
with respect to the Initial Offer Space shall be continuing, but if Tenant does
not accept the Initial Offer Space when first offered by Landlord, Tenant's
right of first offer with respect to the Initial Offer Space shall thereafter be
subject to:
(A) the rights granted by Landlord and/or its successors and/or assigns to any
current or future tenant of at least one half of a floor of the Initial Offer
Space on the balance of the Initial Offer Space (or any portion thereof);
(B) the rights granted by Landlord and/or its successors and/or assigns to any
current or future tenant of at least one-quarter of a floor of the Initial Offer
Space on the balance of that floor (or any portion thereof); and
(C) the rights granted by Landlord and/or its successors and/or assigns to any
current or future tenant of a full floor of space within Building 2 on the
Initial Offer Space (or any portion thereof);
(ii) Subject to the rights of 3Com under its lease (as such lease may
be extended, renewed, amended or modified) and subject to the rights of any
other tenants or occupants or
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future occupants of the Project, (now existing, or hereafter granted by Landlord
and/or its successors and/or assigns), Tenant shall have a continuing right of
first offer, during the term of the Lease, with respect to the balance of
Building 2 (other than the Initial Offer Space); and
(iii) In the event that Landlord constructs or is constructing a new
building (the "NEW BUILDING") within the area shown on EXHIBIT B as "POTENTIAL
BUILDING AREA", then, subject to the rights granted by Landlord and/or its
successors and/or assigns to any tenant or future tenant that is expected to
occupy at least: the lesser of 50,000 square feet or one-half of rentable square
footage in the New Building, Tenant shall have a one time right of first offer
to lease the remaining space, if any, in the New Building. In no event shall
this subsection (iii) be deemed to require Landlord to construct a New Building
for the benefit of Tenant.
(b) Landlord shall give Tenant written notice ("Landlord's Notice") of
the right of first offer to lease, stating the date on which the applicable
space (the "Expansion Space") is expected to become available and the terms
under which Landlord is willing to lease such Expansion Space to Tenant
(including the initial fixed rent and term). Tenant shall have a period of ten
(10) business days after the date of Landlord's Notice to Tenant to respond by
accepting or rejecting such offer and if Tenant does not respond within the
stated period, Tenant will be deemed to have rejected such offer. If Tenant
gives written notice accepting a right of first offer to lease within said ten
(10) business day period, provided that Tenant also gives Landlord a written
certification from its chief financial officer that Tenant is not the subject of
any bankruptcy or insolvency proceedings, and that Tenant is not insolvent, then
Landlord shall be deemed to have agreed that Tenant is entitled to accept such
right of first offer to lease (i.e. Landlord will be deemed to have waived all
conditions to such acceptance which are applicable to the date of acceptance,
other than the execution of a lease in form and substance reasonably acceptable
to Landlord and Tenant) unless, within ten (10) business days after Landlord's
receipt of such notice, Landlord gives written notice to Tenant setting forth
with specificity the manner in which Tenant has failed to satisfy the conditions
to such acceptance. Following Tenant's acceptance of a right of first offer to
lease, the parties agree to negotiate in good faith for a period not to exceed
ten days to enter into a lease in form and substance reasonably satisfactory to
the parties, and if the parties do not enter into a lease within said time
period, Tenant will be deemed to have rejected the right of first offer to lease
with respect to the Expansion Space offered and Landlord may offer such
Expansion Space to any party upon terms that Landlord deems appropriate free of
this right of first offer to lease (but, with respect to Building 2 only,
subject to complying with the provisions of this SECTION 31.1, if applicable, if
the space thereafter again becomes available for lease).
If the offer to Tenant is for more than one floor of space Tenant shall have the
right to take less space so long as the space constitutes either a full floor or
full floors, or constitute existing separately demised space or spaces (so that
no Tenant improvement work will be required to demise such space). With respect
to the Initial Offer Space only, if Landlord has not leased such space within
one year, Landlord must again offer such space to Tenant, and Tenant must
respond to such re-offer within a period of ten days.
Notwithstanding anything to the contrary contained in this Agreement, upon
execution of any lease between Landlord and Tenant (or their respective
successors and/or assigns) for space in
76
Building 2 and/or any New Building, the provisions of this Article 31 shall be
and become null and void with respect to such space.
31.2 ESTOPPEL CERTIFICATE. Within ten (10) business days after
Landlord's written request, Tenant shall execute an estoppel certificate in
recordable form confirming the provisions of this ARTICLE 31, the dates of any
offers to Tenant, whether or not Tenant accepted or rejected such offer, and
such other matters as may be reasonably requested by Landlord to determine
Tenant's rights, if any, under this ARTICLE 31.
31.3 LIMITATION ON ASSIGNMENT. The provisions of this ARTICLE 31 and
Tenant's rights and obligations hereunder may not be assigned by Tenant separate
from an assignment of all of Tenant's right, title and interest in this Lease
(which assignment is further subject to the provisions of ARTICLE 14).
31.4 PURCHASE OF BUILDING 2 BY 3COM. Notwithstanding anything to the
contrary contained in this Article 31, in the event that 3Com purchases Building
2, the provisions of SECTIONS 31.1(i) AND 31.1(ii) above shall thereupon be and
become null and void, and Tenant shall have no right of first offer to lease any
space in Building 2.
ARTICLE 32
TERMINATION OF PRIOR LEASE
Landlord and Tenant entered into a Lease Agreement dated as of May 29, 2003
(the "Prior Lease"). The Prior Lease is hereby terminated effective as of
midnight on the Effective Date.
[Balance of page intentionally left blank]
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed the day and date first above written.
"LANDLORD":
MARLBOROUGH CAMPUS LIMITED
PARTNERSHIP, a Massachusetts limited
partnership
By: Bergen of Marlborough, Inc., general
partner
By:
----------------------------
Its:
----------------------------
"TENANT":
CYTYC CORPORATION, a Delaware
corporation
Attest:
By:
-----------------------------------
By: Name:
------------------------
Name: Title:
Title: (Corporate Seal)
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(ACKNOWLEDGMENT FOR CORPORATION)
COMMONWEALTH OF MASSACHUSETTS
SS.:
COUNTY OF
__________________
BE IT REMEMBERED, that on this _____ day of ______, 2003, before me, the
subscriber, a Notary Public of the Commonwealth of Massachusetts personally
appeared _____________________________, who, being by me duly sworn on his oath,
does depose and make proof to my satisfaction that he is the ______________
Secretary of
CYTYC Corporation, the Tenant named in the foregoing Lease; that
_______________________ is ____President of said corporation; that the execution
of the foregoing Lease was duly authorized; and the seal affixed to said
instrument is the corporate seal and was thereto affixed and said instrument
signed and delivered by said __________________ President, as and for his
voluntary act and deed and as for the voluntary act and deed of said
corporation, in presence of deponent, who thereupon subscribed his name thereto
as witness.
Subscribed and sworn to
before me at ___________,
on the date aforesaid.
--------------------------
Secretary
---------------------------
Notary Public
(Notarial Seal)
EXHIBIT A
OUTLINE OF PREMISES
[TO BE ATTACHED]
IDENTIFY SPACE A
1
EXHIBIT B
PLAN SHOWING BUILDINGS 1, 2, 3 AND 4
[TO BE ATTACHED]
SHOW PREFERRED PARKING AREA, RESTRICTED PARKING AREA, POTENTIAL BUILDING AREA
AND LOW BUILD AREA
2
EXHIBIT C
INVENTORY LIST
3
EXHIBIT D
RULES AND REGULATIONS
The following rules and regulations (collectively, the "Rules") shall apply,
where applicable, to the Premises, the Building, the parking lot, the Project
and the appurtenances thereto. Whenever Landlord's judgment, approval or consent
is required under any Rules, Landlord agrees that it will act reasonably.
As used herein "Common Areas" shall have the meaning set forth in Section 1.4 of
the Lease.
A. GENERAL
1. Sidewalks, areas outside of doorways, exterior vestibules and other similar
areas shall not be obstructed by Tenant or used by Tenant for any purpose
other than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material of any nature shall be placed, emptied, or thrown in
those areas. At no time shall Tenant permit Tenant's employees, contractors
or other representatives to loiter in Common Areas, or in any other areas
outside the Building.
2. Any Tenant or vendor sponsored activity or event in Common Area must be
approved and scheduled through Landlord's representative, which approval
shall not be unreasonably withheld.
3. Alcoholic beverages (without Landlord's prior written consent), illegal
drugs or other illegal controlled substances are not permitted in the
Common Areas, nor will any person under the influence of the same be
permitted in the Common Areas.
4. No firearms or other weapons are permitted in the Common Areas.
5. No fighting or "horseplay" will be tolerated at any time in the Common
Areas.
6. Fire protection and prevention practices implemented by Landlord from time
to time in the Common Areas, including participation in fire drills, must
be observed by Tenant at all times.
7. Tenant shall not cause any unnecessary janitorial labor or services in the
Common Areas by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness.
8. Subject to the provisions of Article 23 of the Lease, no signs,
advertisements or notices shall be painted or affixed on or to any windows,
doors or other parts of the Building that are visible from the exterior of
the Building unless approved in writing by Landlord.
4
9. Tenant shall not exceed the acceptable floor loading (based on design load
of 100 pounds per square foot of live load) and weight distribution
requirements for the Building.
10. No animals, except seeing-eye dogs, shall be brought into or kept in, on or
about the Common Areas.
11. Smoking and discarding of smoking materials by Tenant and/or any Tenant
Party is permitted only in exterior locations adjacent to entrances to the
Building designated by Tenant and/or designated by Landlord in other
portions of the Project. Tenant will instruct and notify its visitors and
employees of such policy.
12. There shall not be used in any Common Area, either by any Tenant or by
delivery personnel or others, in the delivery or receipt of merchandise,
any hand trucks, except those equipped with rubber tires and sole guards.
13. Tenant shall provide Landlord in writing the names and contact information
of two (2) representatives authorized by the Tenant to request Landlord
services, either billable or non billable and to act as a liaison for
matters related to the Premises.
B. ACCESS & SECURITY
1. Bicycles and other vehicles are not permitted on the walkways outside the
Building, except in those areas specifically designated by Landlord for
such purposes.
2. Canvassing, soliciting, and peddling in or about the Project (other than in
the Premises) is prohibited. Tenant, its employees, agents and contractors
shall cooperate with said policy, and Tenant shall use its best efforts to
prevent the same by Tenant's invitees.
3. Tenant and its employees, agents, contractors, invitees and licensees are
limited to the Premises and the Common Areas. Tenant and its employees,
agents, contractors, invitees and licensees may not enter other areas of
the Project (other than the Common Areas) except when accompanied by an
escort from Landlord.
4. Tenant acknowledges that Project security problems may occur which may
require the employment of extreme security measures in the day-to-day
operation of the Common Areas. Accordingly, Tenant agrees to cooperate and
cause its employees, contractors and other representatives to cooperate
fully with Landlord in the implementation of any reasonable security
procedures concerning the Common Areas.
C. SHIPPING/RECEIVING
1. No deliveries (other than courier service) to the Premises may be made via
other buildings within the Project unless otherwise directed or permitted
by Landlord.
2. Dock areas exterior to the Building shall not be used for storage or
staging by Tenant.
5
3. In no case shall any truck or trailer be permitted to remain in a loading
dock area for more than forty-eight hours.
D. FOOD SERVICE
1. No open flame cooking or competing food service or vending machines will be
permitted in the Premises.
2. Tenant shall not remove food service property from the cafe including
trays, dishes, glasses, cups, utensils. Disposal utensils are provided.
E. RULES FOR USE OF PROJECT ACCESS CARDS
Each of Tenant's employees and on-site contractors shall be issued an access
card. The access card serves as a "key" that allows access to card reader
controlled doors.
The access card will ONLY act as a key on doors leading to the Premises (so long
as the access card system serving the Premises is part of the common system for
the Project) and Common Areas. Care should be used to prevent excessive bending
or abuse that may cause damage to the card.
1. Do not allow others to use your card.
2. Report a lost, stolen, or damaged card immediately.
3. If a door is equipped with a card reader - use the reader to access. Do not
"prop" doors open to bypass the system.
4. A "Tailgater" is an individual without an access card who follows an
employee in or out of a door after that employee has used their card to
access a door. Tailgating is not allowed.
5. If Landlord provides Tenant with any access cards or badges, a fee of
$20.00 will be charged for each badge or access card issued.
6. In all cases, Tenant agrees to promptly notify Landlord when access badges
are to be deactivated in cases such as termination, non-use, lost badge,
etc.
6
EXHIBIT E
ESTOPPEL CERTIFICATE
Date [Name of Landlord]
[Name and Address of Purchaser] and/or
[Name and Address of Mortgagee]
It is our understanding that [_________is purchasing from_______
________________________________ ("Landlord"), [and/or _____________ is
providing financing in connection with the acquisition or refinancing of the]
property located at _________________, Marlborough, Massachusetts (the
"Property") and in connection therewith have required this certification by the
undersigned.
Reference is made to a Lease dated ________________, between Landlord and the
undersigned as Tenant (the "Lease") for certain premises (the "Premises")
located at the Property. The undersigned, as Tenant, hereby certifies that:
1. The term of the Lease commenced on __________, 20__ and ends on __________,
20__ (the "Expiration Date"). Tenant has no right to renew or extend the
term of the Lease, except as set forth in Section 2.2 of the Lease.
2. The undersigned has accepted and presently occupies the premises described
in the Lease as Tenant.
3. The Base Rent under the Lease is currently $__________________ per month,
and has been paid through __________________, 20__. Tenant currently is
billed by the Landlord $______ per month as its estimated Share of
Operating Expenses, and $_______ per month as its estimated Share of Tax
Expenses.
4. The Lease is in full force and effect and has not been assigned, modified,
supplemented or amended in any way, Tenant is not in default thereunder,
and, to the Tenant's knowledge, Landlord is not in default thereunder, and
no event has occurred which, with the giving of notice or passage of time,
or both, could result in a default by Tenant or Landlord, except as
follows: _________
5. The Lease, including all Exhibits attached thereto, represents the entire
agreement between Landlord and the undersigned.
6. To the best of Tenant's knowledge, there are no existing defenses or
offsets which the undersigned has against the enforcement of the Lease by
Landlord.
7. The undersigned Tenant is in occupancy of the premises described in the
Lease and is actually conducting its business therein, which business is
the use permitted under the Lease. Tenant has not sublet nor assigned its
interest in the Lease except as follows: _______
7
8. No rent has been paid more than one month in advance of its due date under
the Lease.
9. Landlord holds a security deposit of $________, in the form of a letter of
credit.
10. Tenant has no option or right of first refusal to purchase all or any
portion of the Property. Tenant has no option(s) to expand, nor any option
to terminate the Lease prior to the Expiration Date except as expressly set
forth in the Lease, and except as follows: ___________.
11. All construction, alterations or improvements required to be performed by
Landlord have been completed and any payments, credits or abatements
required to be given by Landlord to Tenant have been given, except
_________, and except abatements which might accrue to Tenant's benefit
pursuant to Tenant's rights under Sections 6.4, 11.1, 13.1 or 19.8 of the
Lease which are based upon conditions which have not yet occurred.
12. To Tenant's knowledge (but without waiving any rights to refunds which
might arise in connection with audits permitted to be performed by Tenant
pursuant to the Lease), no refunds or other credits are due to Tenant for
Direct Expenses (as defined in the Lease) paid to Landlord as additional
rent for any calendar years ending on or before December 31, 200__.
13. No actions have been filed by or are pending against Tenant under the
bankruptcy laws of the United States or any state thereof.
14. No work has been performed by or at the request of Tenant for which a
mechanic's or materialmen's lien may be filed against the Premises, except
__________.
15. The signatory below is authorized to execute this Estoppel Certificate on
behalf of Tenant.
Executed as an instrument under seal on __________, 20__.
Very truly yours,
-----------------------------------
Tenant
8
EXHIBIT E-1
LESSEE ESTOPPEL CERTIFICATE
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, ("Lender")
c/o Real Estate Group
Two Xxxxx Square
000-000 X. 00xx Xxxxxx
Xxxxx 0000 (00xx Xxxxx)
Xxxxxxxxxxxx, XX 00000
Attn: Manager, Loan Administration
RE: Lease dated ___________, 2003 (the "Lease") by and between Marlborough
Campus Limited Partnership, a Massachusetts limited partnership, as lessor
("Lessor") and
CYTYC Corporation, as lessee ("Lessee") with respect to certain
premises (the "Leased Premises") located at The Campus at Marlborough,
Marlborough, Massachusetts (the "Property")
Ladies/Gentlemen:
The undersigned hereby acknowledges that Lessor has encumbered the Property with
a mortgage or deed of trust in favor of Lender. The undersigned further
acknowledges the right of Lessor, Lender and any and all of Lessor's present and
future lenders to rely upon the statements and representations of the
undersigned contained in this Certificate and further acknowledges that any loan
secured by any such deed of trust or further deeds of trust will be made and
entered into in material reliance on this Certificate.
Given the foregoing, the undersigned Lessee hereby certifies and represents unto
Lender, its successors and assigns, with respect to the above described Lease, a
true and correct copy of which is attached as EXHIBIT A hereto, as follows:
1. All space and improvements covered by the Lease have been completed and
furnished to the satisfaction of Lessee, all conditions required under the Lease
have been met, and Lessee has accepted and taken possession of and presently
occupies the Leased Premises, consisting of approximately 29,832 square feet.
2. The Lease is for a total term of fifteen years commencing on January 1,
2004 and ending December 31, 2018, and has not been modified, altered or amended
in any respect and contains the entire agreement between Lessor and Lessee.
3. As of the Commencement Date, the annual minimum rent under the Lease is
$417,648, in accordance with the terms and provisions of the Lease.
4. No rent has been paid by Lessee in advance under the Lease except for
$_____________, which amount represents rent for the first month of the term of
the Lease, and Lessee has no charge or claim of offset under said Lease or
otherwise, against rents or other amounts due or to
9
become due thereunder. No "discounts", "free rent" or "discounted rent" have
been agreed to or are in effect, except as set forth in the Lease.
5. A security deposit of $___________ has been made and is currently being
held by Lessor. Such security deposit is in the form of a letter of credit, and
a copy thereof is attached hereto as EXHIBIT B.
6. Lessee has no claim against Lessor for any deposit or prepaid rent except
as provided in Paragraphs 4 and 5 above.
7. To the knowledge of the undersigned, except as hereinafter set forth: (i)
the Lessor has satisfied all commitments, arrangements or understandings made to
induce Lessee to enter into the Lease, (ii) the Lessor is not in any respect in
default in the performance of the terms and provisions of the Lease, nor (iii)
is there now any fact or condition which, with notice or lapse of time or both,
would become such a default, except as follows: ______________.
8. Lessee is not in any respect in default under the terms and provisions of
the Lease (nor is there now any fact or condition which, with notice or lapse of
time or both, would become such a default) and has not assigned, transferred or
hypothecated its interest under the Lease, except as follows:
___________________________________.
9. Lessee does not have any option or preferential right to purchase all or
any part of the Leased Premises or all or any part of the building or premises
of which the Leased Premises are a part. Except as expressly provided in the
Lease or in any amendment or supplement to the Lease, Lessee: (i) does not have
any right to renew or extend the term of the Lease; and (ii) does not have
right, title, or interest with respect to the Leased Premises other than as
lessee under the Lease. There are no understandings, contracts, agreements,
subleases, assignments, or commitments of any kind whatsoever with respect to
the Lease or the Leased Premises except as expressly provided in the Lease or in
any amendment or supplement to the Lease set forth in Paragraph 2 above, copies
of which are attached hereto.
10. The Lease is in full force and effect and, to the knowledge of the
undersigned, Lessee has no defenses, setoffs, or counterclaims against Lessor
arising out of the Lease or in any way relating thereto or arising out of any
other transactions between Lessee and Lessor, except as follows:
__________________.
11. The current address to which all notices to Lessee as required under the
Lease should be sent is: 00 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, Attn:
General Counsel and to the Attn: CFO and Controller.
"Tenant":
CYTYC CORPORATION, a Delaware corporation
Attest:
By:
---
By: Name:
------------------------
10
Name: Title:
Title: (Corporate Seal)
11
EXHIBIT F
ANNUAL REPORTING FORM
THE CAMPUS AT MARLBOROUGH
(TENANT: __________________________)
1. CONTACT INFORMATION (please type or print):
Business Name:
Address:
City/State/Zip:
Contact Person:
Telephone:
Fax:
Date Project was certified by the EACC: January 31, 1997
2. NEW HIRES AT PROJECT LOCATION (ONLY PERMANENT FULL-TIME JOBS):
FY 20___ Hires (7/1/20___ through 6/30/20__): ________
Number of FY 20___ Hires That Reside in the Economic Target Area of
Ashland*Framingham*Xxxxxx*Marlborough*Northborough :_______
Total Hires (_____________ through 6/30/20__): _________
Number of Total Hires That Reside in the Economic Target Area: ______
Average Wage of Employees Hired Since Date of EACC Certification:
_________
3. TOTAL PERMANENT FULL-TIME JOBS LOCATED AT THE PROJECT AS OF JUNE 30,
20____: ________
4. AUTHORIZATION:
I , (print name and title) __________________________________________
hereby certify that the information within this Annual Reporting Form
is true and accurate.
------------------------------------------
(Signature) (Date)
PLEASE RETURN COMPLETED FORM TO LANDLORD, WITHIN 10 BUSINESS
DAYS OF WRITTEN REQUEST FROM LANDLORD
12
EXHIBIT G
ENVIRONMENTAL ASSESSMENT REPORTS
Phase I Environmental Site Assessment prepared by Xxxxx & Xxxxxxx
dated October 28, 2002.
13
EXHIBIT H
PERMITTED HAZARDOUS MATERIALS
PreservCyt Solution
CytoLyt Solution
Xxxxxx Brand Versa-Clean
Reagent Alcohol
Xylenes, Mixed ACS Reagent
CellFyx Solution
14
EXHIBIT I
LANDLORD'S REPAIR WORK
The following work has been completed:
Replace broken exterior window pane at the rear of the connector;
Repair chiller pipe leak on 3rd floor ceiling, and replace pipe insulation;
Clean hydraulic fluid in the vicinity of the trash compactor;
Install walk blocks on all windows on southeast facade of Building 3 in
which walk blacks were not installed or are missing and re-insert glazing
where windows are "walking out" because of missing walk blocks.
The following work shall be completed on or before December 31, 2003, subject to
force majeure:
Secure loose gypsum board soffit over the north loading docks, and caulk
the steel lintel.
The following work shall be completed on or before June 30, 2004, subject to
force majeure:
Re-cap alucabond base above the granite near the Building 3 entrance, where
it is beginning to rust;
Clean vertical rust streaks from alucabond siding on the front of the
connector to Building 3;
Repair open caulking joints at the first floor on the 4th and 6th window
frames north of the south loading docks;
Repair hole in the masonry below the 8th window north of the south loading
dock;
Replace partial missing brick below the window at the northwest corridor on
the west elevation; and
Repair damaged roof membrane beneath the chillers.
15
EXHIBIT J
LEGAL DESCRIPTION
16
EXHIBIT K
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(XXXXX FARGO)
17
EXHIBIT L
LANDLORD'S CONSTRUCTION REQUIREMENTS
Any work to be performed by Tenant shall be performed in compliance with
requirements of applicable legal statutes, and governmental agencies having
jurisdiction, and in compliance with the provisions of the Lease and the
specifications herein provided.
1. Any change in the Building including any new construction work,
modification of existing improvements, or the installation of trade fixtures,
shall be completed in such a manner so that the Premises and the Building shall
have the appearance of, and be, an office facility similar to Comparable
Buildings of at least the same quality as exists on the date of the Lease from
Landlord to Tenant, suitable for use only for the purposes permitted by the
Lease.
2. The design, construction and proposed finishes which are visible from
the exterior of the Premises shall conform to and be architecturally harmonious
with the Project.
3. Construction shall comply with applicable statutes, ordinances,
regulations, laws and codes of the governing authorities and/or agencies. Tenant
shall be performed in a good and workmanlike manner.
4. The Tenant must submit to Landlord an engineer signed and sealed shop
drawing of any changes that Tenant will have installed to the HVAC ductwork
system, mechanical system, electrical system, and/or plumbing system. The
Landlord must approve all shop drawings before the Tenant begins fabrication and
installation.
5. All required building and other permits and fees will be obtained and
paid for by Tenant or Tenant's contractor and posted as required within the
Premises.
6. Intentionally omitted.
7. All unloading of construction materials and equipment shall be
accomplished within Tenant's loading areas, and Tenant shall protect the Project
from damage from the transporting of such materials and equipment. All materials
and equipment must be stored within the Building.
8. Tenant shall be responsible to insure that Tenant's contractor(s)
comply with the requirements herein contained and to direct any contractor which
fails to comply to cease work, and to remove himself, his equipment and his
employees from the Project. Tenant's contractors performing any work for which
Landlord's approval is required pursuant to the provisions of the Lease must be
approved by Landlord prior to commencing any work in the Project.
9. Work which affects structural components, the roof, or the general
utility systems for the Building or the Project shall be performed by
contractor(s) approved by Landlord.
18
10. For projects costing in excess of $100,000.00, or in the event
that any lien is filed against the Project, Tenant shall provide the Landlord
with a complete, certified list of all subcontractors that Tenant has utilized
or will be utilizing in connection with such work (name, addresses, telephone
numbers, and license numbers). Upon Landlord's request, such list will be
updated monthly to reflect any changes.
11. Fire Protection System: Any sprinkler relocation within the Building
must be completed by a contractor approved by Landlord.
12. At Landlord's election, during the progress of any work that requires
Landlord's approval, and upon completion of all such work, an inspection
verifying compliance with Tenant's approved drawings may be made by the
Landlord, subject to the following conditions: (a) Landlord gives Tenant
reasonable advance notice, and (b) Landlord conforms to Tenant's reasonable
safety and confidentiality requirements. At Landlord's request, Tenant's
Architect will confirm to Landlord, in writing, conformance of completed work to
plans and specifications provided to Landlord, subject to such commercially
reasonable qualifications as Tenant's Architect may require.
13. No approval by the Landlord is valid unless in writing, signed by the
Landlord or its authorized representative.
14. Tenant's contractor shall carry such types of insurance in such
amounts as designated below and all policies including, without limitation,
those hereinafter specified shall name Landlord, Landlord's property manager,
and their successors and/or assigns as the additional insured. Certificates of
insurance shall provide that no change or cancellation of such insurance
coverage shall be undertaken without 30 days' written notice to the Landlord.
Tenant's contractor shall deliver the necessary insurance certificates to
Landlord prior to commencing work. All insurance shall be maintained with
responsible companies, licensed to do business in Massachusetts and satisfactory
to Landlord. The deductibles for such policies shall not exceed $25,000.00.
15. Tenant's contractor's and subcontractor's required minimum coverages
and limits of liability:
15.1. Xxxxxxx'x Compensation (statutory limits), Employer's Liability
Insurance with limits of not less than $500,000.00 and as required by state law
and any insurance required by any Employee Benefit Act or other statutes
applicable where the work is to be performed as will protect the contractor and
subcontractors from and all liability under the aforementioned act.
15.2. Commercial General Liability Insurance (including Contractor's
Protective Liability) in an amount not less than $2,000,000.00 per occurrence
and $2,000,000.00 in the aggregate and be on an occurrence form. The required
limits can be met with follow form umbrella and/or excess policies. Such
insurance shall provide for explosion and collapse coverage and shall name
Landlord and Landlord's property manager and their successors and/or assigns as
additional insured, against any and all claims for personal injury, including
death resulting therefrom, and damage to the property of others caused by
accident and arising from its
19
operations are performed by the general contractor, subcontractors, or any of
their subcontractors, or by anyone directly or indirectly employed by any of
them.
15.3. Comprehensive Automobile Liability Insurance, including the
ownership, maintenance and operation of any automotive equipment, owned, hired,
and non-owned, with bodily injury and property damage limits of $2,000,000.00.
Such insurance shall name Landlord, Landlord's property manager, and their
successors and/or assigns as additional insured and protect same against any and
all claims for bodily injury, including death resulting therefrom and damage to
the property of others arising from his operations under the contract and
whether such operations are performed by the general contractor, subcontractors,
and any of their subcontractors, or by anyone directly or indirectly employed by
any one of them. Tenant must forward insurance certificates to the Landlord
prior to commencing work.
16. Protective Liability Insurance. Tenant or Tenant's Contractor
shall provide an Owner's /Contractor's Protective Liability insurance policy
naming Landlord, Landlord's property manager, and their successors and/or
assigns as an insured and protect same against any and all liability to third
parties for damage because of bodily injury liability (or death resulting
therefrom) and property damage liability of others or a combination thereof
which may arise from work in or about the Building, and any other liability for
damages which Tenant's contractor and/or subcontractor are required to insure
under any provisions herein. Said insurance shall provide minimum limits of
$2,000,000.00. Tenant must forward insurance certificates to the Landlord prior
to commencing work.
17. Any roof penetrations for Tenant's Rooftop Installations (as defined
in the Lease), setting/installation of Tenant's Rooftop Installations or
structural support therefor will be done by a contractor acceptable to Tenant
and Landlord. Any required supports for any such Rooftop Installation will be
designed at the Tenant's expense and plans and specifications must be submitted
to the Landlord for approval prior to commencement of any such work.
18. Any and all roof penetrations (plumbing vents, bathroom exhaust, etc.)
must be accomplished by a contractor approved by Tenant and Landlord, at the
Tenant's expense, so that the Landlord may sustain the roof guarantee.
19. All O.S.H.A. safety requirements must be complied with.
20. Working Drawings and Specifications:
All prints, drawing information and other material to be furnished by
Tenant as called for hereinafter shall be addressed to Landlord, Attn: Xxxx X.
Xxxxxx.
20.1. Prior to making any improvements, alterations, or changes in the
Building which require Landlord's approval pursuant to the terms of the Lease,
Tenant shall submit to Landlord, for Landlord's approval, in accordance with the
requirements of this Exhibit, Working Drawings, Specifications and/or the
design/build specifications, and, if available, design sketches, showing the
design, character and finishing of the Premises and/or the Building
(collectively, "Working Documents"). Tenant shall provide Landlord with copies
of all Working
20
Documents for any improvements, alteration, or changes in the Building
(excluding Working Documents concerning moveable furniture) within three days
after Tenant receives same.
a. Plans shall include all drawings prepared by or for Tenant;
Tenant shall provide Landlord with such drawings in Auto CAD format.
b. The Plans shall be prepared in compliance with applicable
construction codes and fire codes, and shall show (i) the proper
dimensioning of Premises and all work to be installed; (ii) the
location and size of all required roof opening and penetrations by
dimensions from nearest column lines; and (iii) sprinkler layout
drawings noting any new or relocated sprinkler heads.
c. The title block of drawings must list the following information:
The Landlord's name, the Project name and address.
20.2. Landlord shall notify Tenant of any reasonable objections to
such plans and specifications within ten (10) days after receipt of such plans.
Tenant shall obtain from the appropriate governmental agency approval of all
working drawings and specifications and all necessary permits required to
commence and complete Tenant's Work, including without limitation, approval from
the local Fire Xxxxxxxx if required by law. Landlord's approval of such working
drawings and specifications shall be evidenced by Landlord's initials on one set
thereof, which set shall be returned to Tenant.
20.3. Promptly upon completion of work with respect to the
Premises and the Building, Tenant shall forward to Landlord one (1) complete set
of reproducible transparencies of sprinkler layout and sign drawings, only if
and to the extent that such layout is modified.
20.4. Utility and Service Charges: Any charge for an upgrade in
utility service due to Tenant's interior requirements shall be paid in full by
the Tenant.
21. The Tenant is responsible for requesting all trade inspections
required, obtaining all permits and approvals, using skilled craftsmen and
having necessary insurance certificates as may be required for obtaining a final
certificate of occupancy, all in conformance with the referenced lease between
Tenant and Landlord.
22. Tenant shall obtain, and shall provide the Landlord with copies of,
all appropriate lien waivers from its general contractors with respect to all
work completed to date at the time of each payment to such contractors.
23. All trash and other debris related to construction by or for Tenant
shall be removed form the project at the sole cost and expense of Tenant. Trash
receptacles and/or dumpsters provided by Landlord shall not be utilized for
disposing of construction trash and debris.
24. Whenever Landlord consent, approval, or judgment is required under
the requirements set forth in this Exhibit L, the same shall not be unreasonably
withheld, delayed or conditioned.
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EXHIBIT M
PLAN SHOWING ALTERNATE CONFIGURATION FOR RESTRICTED PARKING
AREA
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TABLE OF CONTENTS
MARLBOROUGH
OFFICE LEASE.....................................................................................1
ARTICLE 1 PREMISES, BUILDING, PROJECT, AND COMMON AREAS....................................................5
1.1 The Premises.....................................................................................5
1.2 Premises "As-Is"; Tenant Improvements............................................................5
1.3 The Building and The Project 7
1.4 Common Areas.....................................................................................7
1.5 Furniture.......................................................................................10
1.6 Card Key Access.................................................................................10
ARTICLE 2 LEASE TERM......................................................................................11
2.1 Lease Term......................................................................................11
2.2 Option to Extend................................................................................11
ARTICLE 3 BASE RENT.......................................................................................12
3.1 Base Rent.......................................................................................12
3.2 Base Rent During Option Term....................................................................12
ARTICLE 4 ADDITIONAL RENT.................................................................................13
4.1 General Terms...................................................................................13
4.2 Definitions of Key Terms Relating to Additional Rent............................................13
4.3 Allocation of Direct Expenses...................................................................19
4.4 Calculation and Payment of Additional Rent......................................................19
4.5 Taxes and Other Charges for Which Tenant Is Directly Responsible................................21
4.6 Intentionally omitted...........................................................................21
4.7 Tenant's Water Cost and Electricity Cost........................................................21
4.8 Tenant's Right to Contract Directly for Certain Direct Expenses 22
4.9 Tenant's Additional Air Conditioning Cost 23
ARTICLE 5 USE OF PREMISES.................................................................................24
5.1 Permitted Use...................................................................................24
5.2 Prohibited Uses.................................................................................24
5.3 Electronic Equipment............................................................................25
5.4 CC&Rs...........................................................................................25
5.5 Condition of Premises...........................................................................25
5.6 Demising Plan...................................................................................26
5.7 Rules and Regulations...........................................................................26
ARTICLE 6 SERVICES AND UTILITIES..........................................................................27
6.1 Standard Tenant Services........................................................................27
6.2 Requirements of Tenant..........................................................................28
6.3 Interruption of Use.............................................................................28
6.4 Tenant's Rights in the Event of Untenantability Caused by Landlord Fault 29
ARTICLE 7 REPAIRS.........................................................................................30
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7.1 Landlord's Obligations..........................................................................30
7.2 Tenant's Obligations............................................................................30
ARTICLE 8 ADDITIONS AND ALTERATIONS.......................................................................31
8.1 Landlord's Consent to Alterations...............................................................31
8.2 Manner of Construction..........................................................................32
8.3 Payment for Improvements........................................................................33
8.4 Construction Insurance..........................................................................33
8.5 Landlord's Property.............................................................................33
8.6 Roof 34
ARTICLE 9 COVENANT AGAINST LIENS..........................................................................34
ARTICLE 10 INSURANCE.......................................................................................34
10.1 Indemnification and Waiver......................................................................34
10.2 Tenant's Compliance With Landlord's Fire and Casualty Insurance.................................35
10.3 Tenant's Insurance..............................................................................35
10.4 Form of Policies................................................................................36
10.5 Subrogation.....................................................................................37
10.6 Landlord's Insurance............................................................................37
ARTICLE 11 DAMAGE AND DESTRUCTION..........................................................................38
11.1 Repair of Damage by Landlord....................................................................38
11.2 Landlord's Option to Repair.....................................................................39
11.3 Time for Repair.................................................................................40
11.4 Waiver of Statutory Provisions..................................................................41
ARTICLE 12 NON-WAIVER......................................................................................42
ARTICLE 13 CONDEMNATION....................................................................................42
13.1 Condemnation....................................................................................42
13.2 Tenant's Right to Award.........................................................................43
ARTICLE 14 ASSIGNMENT AND SUBLETTING.......................................................................43
14.1 Transfers.......................................................................................43
14.2 Landlord's Consent..............................................................................44
14.3 Transfer Premium................................................................................45
14.4 Effect of Transfer..............................................................................45
14.5 Payment of Rent to Landlord.....................................................................45
14.6 Permitted Transfers.............................................................................46
14.7 Occurrence of Default...........................................................................46
14.7 Non-Transfers...................................................................................46
ARTICLE 15 SURRENDER OF PREMISES; OWNERSHIP AND REMOVAL OF TRADE FIXTURES..................................47
15.1 Surrender of Premises...........................................................................47
15.2 Removal of Tenant Property by Tenant............................................................47
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ARTICLE 16 HOLDING OVER....................................................................................48
ARTICLE 17 ESTOPPEL CERTIFICATES...........................................................................48
ARTICLE 18 SUBORDINATION...................................................................................49
ARTICLE 19 DEFAULTS: REMEDIES..............................................................................49
19.1 Events of Default...............................................................................49
19.2 Remedies Upon Default...........................................................................50
19.3 Subleases of Tenant.............................................................................52
19.4 Form of Payment After Default...................................................................52
19.5 No Relief From Forfeiture After Default.........................................................52
19.6 Efforts to Relet................................................................................53
19.7 Landlord Default................................................................................53
19.8 Self-Help 53
ARTICLE 20 COVENANT OF QUIET ENJOYMENT.....................................................................54
ARTICLE 21 SECURITY DEPOSIT................................................................................54
21.1 Security Deposit 54
21.2 Letter of Credit 54
21.3 Reduction in Security Deposit 56
21.4 Replenishment of Security Deposit 57
ARTICLE 22 INTENTIONALLY OMITTED...........................................................................57
ARTICLE 23 SIGNS...........................................................................................57
ARTICLE 24 COMPLIANCE WITH LAW.............................................................................58
ARTICLE 25 LATE CHARGES....................................................................................59
ARTICLE 26 LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT............................................59
26.1 Landlord's Cure.................................................................................59
26.2 Reimbursement...................................................................................59
ARTICLE 27 ENTRY BY LANDLORD...............................................................................60
ARTICLE 28 TENANT PARKING..................................................................................61
ARTICLE 29 MISCELLANEOUS PROVISIONS........................................................................62
29.1 Terms; Captions.................................................................................62
29.2 Binding Effect..................................................................................62
29.3 No Air Rights...................................................................................62
29.4 Transfer of Landlord's Interest.................................................................62
29.5 Prohibition Against Recording...................................................................63
29.6 Landlord's Title................................................................................63
29.7 Relationship of Parties.........................................................................63
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29.8 Application of Payments.........................................................................63
29.9 Time of Essence.................................................................................63
29.10 Partial Invalidity..............................................................................63
29.11 No Warranty.....................................................................................63
29.12 Landlord Exculpation............................................................................63
29.13 Entire Agreement................................................................................64
29.14 Right to Lease..................................................................................64
29.15 Force Majeure...................................................................................64
29.16 Notices.........................................................................................64
29.17 Joint and Several...............................................................................65
29.18 Authority.......................................................................................65
29.19 Attorneys' Fees.................................................................................66
29.20 Governing Law...................................................................................66
29.21 Submission of Lease.............................................................................66
29.22 Brokers.........................................................................................66
29.23 Independent Covenants...........................................................................66
29.24 Project or Building Name and Signage............................................................67
29.25 Counterparts....................................................................................67
29.26 Confidentiality.................................................................................67
29.27 Intentionally omitted...........................................................................67
29.28 Building Renovations............................................................................67
29.29 No Violation....................................................................................68
29.30 Communications and Computer Lines...............................................................68
29.31 Hazardous Materials.............................................................................68
29.32 Development of the Project......................................................................72
29.33 No Consequential Damages........................................................................73
29.34 Compliance with TIF Agreement...................................................................73
29.35 Tenant's Financial Condition....................................................................73
29.36 Exhibits........................................................................................73
ARTICLE 30 USE OF ROOF.....................................................................................73
ARTICLE 31 RIGHT OF FIRST OFFER TO LEASE ADDITIONAL SPACE..................................................75
ARTICLE 32 TERMINATION OF PRIOR LEASE......................................................................77
List of Exhibits
Exhibit A Plan of the Premises
Exhibit B Plan of the Improvements at the Project
Exhibit C Furniture Inventory List
Exhibit D Rules and Regulations
Exhibit E Form of Estoppel Certificate
Exhibit F Annual Reporting Form
Exhibit G Environmental Assessment Reports
Exhibit H Permitted Hazardous Materials
Exhibit I Landlord Repair Work
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Exhibit J Legal Description
Exhibit K Subordination Non-disturbance and Attornment Agreement
Exhibit L Landlord's Construction Requirements
Exhibit M Plan Showing Alternate Configuration for Restricted Parking Area
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