Exhibit 10.1
WALTHAM WESTON CORPORATE CENTER
000 XXXXX XXXX
XXXXXXX, XXXXXXXXXXXXX
LEASE DATED August 27, 2002
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in a
certain building (the "Building") known as, and with an address at, 000 Xxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxxx.
The parties to this Indenture of Lease hereby agree with each other as
follows:
ARTICLE I
REFERENCE DATA
1.1 SUBJECTS REFERRED TO:
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Article:
LANDLORD: STONY BROOK ASSOCIATES LLC, a
Delaware limited liability company
LANDLORD'S ORIGINAL c/o Boston Properties Limited Partnership
ADDRESS: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
LANDLORD'S CONSTRUCTION
REPRESENTATIVE: Xxxx Xxxxxxxxx and Xxxx Xxxxxx
TENANT: NETEGRITY, INC., a Delaware corporation
TENANT'S ORIGINAL 00 Xxxxxx Xxxxxx
ADDRESS: Xxxxxxx, Xxxxxxxxxxxxx 00000
TENANT'S CONSTRUCTION
REPRESENTATIVE: Xxxxx Xxxxx
ESTIMATED TERM
COMMENCEMENT DATE: March 1, 2003
COMMENCEMENT DATE: As defined in Sections 2.4 and 3.2
RENT COMMENCEMENT DATE: The later to occur of (i) August 1, 2003
and (ii) that date which is four (4) months
from the Commencement Date.
OUTSIDE COMPLETION DATE: June 30, 2003
TERM (SOMETIMES CALLED Sixty-four (64) calendar months (plus
THE "ORIGINAL TERM"): the partial month, if any, immediately
following the Commencement Date), unless
extended or sooner terminated as provided
in this Lease.
EXTENSION OPTION: One (1) period of five (5) years as
provided in and on the terms set forth in
Section 8.20 hereof.
THE SITE: Those certain parcels of land in Waltham,
Middlesex County, Massachusetts, being more
particularly described in Exhibit A
attached hereto.
THE BUILDING: The Building known as and numbered 000
Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx. The
Building is appropriately labeled on
Exhibit A-1 attached hereto and hereby
made a part hereof.
THE COMPLEX: The Building together with all parking
areas, decks and structures and the Site.
TENANT'S SPACE: The entire fifth (5th) floor of the
Building in accordance with the floor plan
annexed hereto as Exhibit D and
incorporated herein by reference.
NUMBER OF Two Hundred Eighteen (218)
PARKING SPACES:
ANNUAL FIXED RENT: (a) For the period commencing on the Rent
Commencement Date and ending on the last
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day of the twelfth (12th) full calendar
month of the Original Term of this Lease at
the annual rate of $1,359,575.00 (being the
product of (i) $25.00 and (ii) the
"Rentable Floor Area of Tenant's Space"
(hereinafter defined in this Section 1.1
(b) For the period commencing on the first
day of the thirteenth (13th) full calendar
month of the Original Term of this Lease
and ending on the last day of the
thirty-sixth (36th) full calendar month of
the Original Term of this Lease, at the
annual rate of $1,468,341.00 (being the
product of $27.00 and (ii) the Rentable
Floor Area of Tenant's Space).
(c) For the period commencing on the first
day of the thirty-seventh (37th) full
calendar month of the Original Term of this
Lease and ending on the last day of the
Original Term of this Lease, at the annual
rate of $1,522,724.00 (being the product
of $28.00 and (ii) the Rentable Floor Area
of Tenant's Space).
(d) During the extension option period (if
exercised), as determined pursuant to
Section 8.20.
BASE OPERATING EXPENSES: Landlord's Operating Expenses (as
hereinafter defined in Section 2.6) for
calendar year 2003, being January 1, 2003
through December 31, 2003.
TENANT ELECTRICITY: Initially as provided in Section 2.5
subject to adjustment as provided in
Section 2.8.
ADDITIONAL RENT: All charges and other sums payable by
Tenant as set forth in this Lease, in
addition to Annual Fixed Rent.
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RENTABLE FLOOR AREA
OF TENANT'S SPACE
(SOMETIMES ALSO
CALLED RENTABLE FLOOR
AREA OF THE PREMISES): 54,383 square feet.
TOTAL RENTABLE FLOOR
AREA OF THE BUILDING: 304,050 square feet.
PERMITTED USE: General office purposes.
INITIAL MINIMUM $10,000,000.00 combined single limit per
LIMITS OF TENANT'S occurrence.
COMMERCIAL GENERAL
LIABILITY INSURANCE:
BROKERS: The Columbia Group Realty Advisors
00 Xxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
CRF Partners, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxxxx Xxxx Company
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
SECURITY DEPOSIT: $679,787.50, subject to and in accordance
with the terms and provision of Section
8.21 below.
1.2 EXHIBITS. There are incorporated as part of this Lease:
EXHIBIT A Description of Site
EXHIBIT A-1 Site Plan of Complex
EXHIBIT B Plan of Landlord's Work
EXHIBIT B-1 Tenant's Submission
EXHIBIT C Landlord's Services
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EXHIBIT D Floor Plan
EXHIBIT E Form of Commencement Date Agreement
EXHIBIT F Broker Determination
EXHIBIT G Notice of Lease
1.3 TABLE OF ARTICLES AND SECTIONS
ARTICLE I-REFERENCE DATA
1.1 Subjects Referred to
1.2 Exhibits
1.3 Table of Articles and Sections
ARTICLE II-BUILDING, PREMISES, TERM AND RENT
2.1 The Premises
2.1.1 Tenant's Expansion Options
2.1.2 Tenant's Right of First Offer
2.2 Rights To Use Common Facilities
2.2.1 Tenant's Parking
2.3 Landlord's Reservations
2.4 Habendum
2.5 Fixed Rent Payments
2.6 Operating Expenses
2.7 Real Estate Taxes
2.8 Tenant Electricity
ARTICLE III-CONDITION OF PREMISES; ALTERATIONS
3.1 Substantial Completion
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3.2 Certain Tenant Rights
3.3 General Provisions Applicable to Construction
3.4 Intentionally Omitted
3.5 Additional Tenant Work Costs
3.6 Alterations
ARTICLE IV-LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 Landlord's Covenants
4.1.1 Services Furnished by Landlord
4.1.2 Additional Services Available to Tenant
4.1.3 Roof, Exterior Wall, Floor Slab and Common Facility Repairs
4.1.4 Door Signs
4.2 Interruptions and Delays in Services and Repairs, etc.
4.3 Landlord Insurance
4.4 ADA Compliance
ARTICLE V-TENANT'S COVENANTS
5.1 Payments
5.2 Repair and Yield Up
5.3 Use
5.4 Obstructions; Items Visible From Exterior; Rules and Regulations
5.5 Safety Appliances; Licenses
5.6 Assignment; Sublease
5.7 Indemnity; Insurance
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5.8 Personal Property at Tenant's Risk
5.9 Right of Entry
5.10 Floor Load; Prevention of Vibration and Noise
5.11 Personal Property Taxes
5.12 Compliance with Laws
5.13 Payment of Litigation Expenses
ARTICLE VI-CASUALTY AND TAKING
6.0 Landlord's Restoration Estimate
6.1 Damage Resulting from Casualty
6.2 Uninsured Casualty
6.3 Rights of Termination for Taking
6.4 Award
ARTICLE VII-DEFAULT
7.1 Tenant's Default
7.2 Landlord's Default
ARTICLE VIII-MISCELLANEOUS PROVISIONS
8.1 Extra Hazardous Use
8.2 Waiver
8.3 Cumulative Remedies
8.4 Quiet Enjoyment
8.5 Notice To Mortgagee and Ground Lessor
8.6 Assignment of Rents
8.7 Surrender
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8.8 Brokerage
8.9 Invalidity of Particular Provisions
8.10 Provisions Binding, Etc.
8.11 Recording
8.12 Notices
8.13 When Lease Becomes Binding
8.14 Section Headings
8.15 Rights of Mortgagee
8.16 Status Reports and Financial Statements
8.17 Self-Help
8.18 Holding Over
8.19 Non-Subrogation
8.20 Extension Option
8.21 Security Deposit
8.22 Late Payment
8.23 Tenant's Payments
8.24 Waiver of Trial by Jury
8.25 Governing Law
ARTICLE II
BUILDING, PREMISES, TERM AND RENT
2.1 THE PREMISES. Landlord hereby demises and leases to Tenant, and Tenant
hereby hires and accepts from Landlord, Tenant's Space in the Building
excluding exterior faces
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of exterior walls, the common stairways and stairwells, elevators and
elevator xxxxx, fan rooms, electric and telephone closets, janitor
closets, freight elevator vestibules, and pipes, ducts, conduits, wires
and appurtenant fixtures serving exclusively or in common other parts of
the Building and if Tenant's Space includes less than the entire rentable
area of any floor, excluding the common corridors, elevator lobbies and
toilets located on such floor. Subject to events beyond Landlord's
reasonable control, Tenant shall have access to the Premises, including
elevator access, twenty-four (24) hours per day, seven (7) days per week.
Tenant's Space with such exclusions is hereinafter referred to as the
"Premises". The term "Building" means the Building identified on the first
page, and which is the subject of this Lease; the term "Site" means all,
and also any part of the Land described in Exhibit A, plus any additions
or reductions thereto resulting from the acquisition of adjacent property
by Landlord or from the change of any abutting street line and all parking
areas and structures. The term "Property" means the Building and the Site.
2.1.1 TENANT'S EXPANSION OPTIONS. (A) Upon written notice to be given by Tenant
to Landlord no later than October 1, 2003 ("Tenant's First Expansion
Notice") Tenant shall have the right to lease an additional 5,000 to
10,000 square feet of rentable floor area located on either the first,
second, third or fourth floor of the Building ("Expansion Premises A"), it
being understood and agreed that the actual location and square footage of
Expansion Premises A shall be determined by Landlord in its sole
discretion after receipt by Landlord of Tenant's First Expansion Notice.
Expansion Premises A shall be delivered to Tenant between January 1, 2004
and June 30, 2004 (the "Expansion Premises A Delivery Date"), which date
shall be determined by Landlord in its sole discretion. Effective as of
the Expansion Premises A Delivery Date, for the remainder of the Term of
this Lease (including any extension thereof), Expansion Premises A shall
be automatically added to the Premises demised under this Lease upon all
the same terms and conditions applicable to the Premises (including,
without limitation, the rate of Annual Fixed Rent and the provisions for
payment of operating expenses, real estate taxes and electricity as set
forth below), except as expressly provided to the contrary in the next
paragraph of this subsection (A), and from and after the Expansion
Premises A Delivery Date the Rentable Floor Area of the Premises shall be
increased by the rentable floor area of Expansion Premises A. Landlord and
Tenant shall enter into an instrument amending this Lease to memorialize
the addition of Expansion Premises A no later than thirty (30) days after
the Expansion Premises A Delivery Date, provided, however, that the
failure to enter into such an instrument shall not affect the addition of
Expansion Premises A to the Premises.
Notwithstanding anything contained herein to the contrary, (i) in the
event that Expansion Premises A is in "shell" condition, Landlord shall,
at Landlord's sole cost and expense, deliver said Expansion Premises A to
Tenant in substantially the same condition as the Premises are being
delivered to Tenant in accordance with Article III below, and (ii) in the
event that Expansion Premises A has previously been built out, Landlord
shall (x) patch and repaint Expansion Premises A with one coat of paint in
the then-existing color
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of such Expansion Premises A and (ii) perform minor repartitioning work in
Expansion Premises A at a cost not to exceed $25,000.00, it being
understood and agreed that Tenant shall be responsible for all costs of
repartitioning work above $25,000.00 (provided, however, that Tenant shall
have the option of accepting Expansion Premises A in their "as-is"
condition without any obligation on Landlord's part to perform any
additions, alterations, improvements or other work therein or pertaining
thereto, and without any cost or expense to Landlord or Tenant).
(B) Upon written notice to be given by Tenant to Landlord no later than
September 1, 2004 ("Tenant's Second Expansion Notice"), Tenant shall have
the right to lease an additional 10,000 to 25,000 square feet of rentable
floor area located on either the first, second, third or fourth floor of
the Building ("Expansion Premises B"). Expansion Premises B shall be
delivered to Tenant between July 1, 2005 and December 31, 2005 (the
"Expansion Premises B Delivery Date"), which date shall be determined by
Landlord in its sole discretion. Within twenty (20) days after the date of
Tenant's Second Expansion Notice, Landlord shall advise Tenant of (i) the
actual location and square footage of Expansion Premises B (which shall be
determined by Landlord in its sole discretion) and the Expansion Premises
B Delivery Date, (ii) the annual fair market rent for such space as of the
Expansion Premises B Delivery Date based upon the use of such space as
first class office space and the location of such space in the Building
utilizing properties of similar character in the Boston West Suburban
Market (the "Expansion Premises B Annual Market Rent") and (iii) the other
business terms upon which Expansion Premises B is to be made available to
Tenant (said notice from Landlord being hereinafter referred to as
"Landlord's Expansion Premises B Terms Notice").
Within ten (10) days after receipt of Landlord's Expansion Premises B
Terms Notice, Tenant shall provide Landlord with written notice (x) of
Tenant's agreement with and acceptance of the terms set forth in
Landlord's Expansion B Premises Terms Notice or (y) requesting a broker
determination of the "Prevailing Market Rent" and other business terms and
conditions for such space (the "Expansion Premises B Broker
Determination"), to be made in the manner set forth in Exhibit F or (z)
revoking its exercise of Tenant's Second Expansion Notice. If Tenant shall
give the notice specified in subsection (x) above, then Expansion Premises
B shall be incorporated into the Premises as of the Expansion Premises B
Delivery Date upon all of the same terms and conditions contained in this
Lease, except for the provisions of this Section 2.1.1(B), the Annual
Fixed Rent for such space (which shall be equal to the Expansion Premises
B Annual Market Rent as quoted by Landlord) and those provisions which are
inconsistent with the terms of Landlord's Expansion Premises B Terms
Notice. If Tenant shall have given the notice specified in subsection (y)
above requesting the Expansion Premises B Broker Determination, then
Expansion Premises B shall be incorporated into the Premises as of the
Expansion Premises B Delivery Date upon all of the same terms and
conditions contained in this Lease, except for the provisions of this
Section 2.1.1(B) and the Annual Fixed Rent and other business terms and
conditions for such space (which shall be as determined by the Expansion
Premises B Broker Determination). From and after the Expansion Premises B
Delivery Date the Rentable Floor Area of the Premises shall be
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increased by the rentable floor area of Expansion Premises B. Landlord and
Tenant shall enter into an instrument amending this Lease to memorialize
the addition of Expansion Premises B within thirty (30) days after the
Expansion Premises B Delivery Date, provided, however, that the failure to
enter into such an instrument shall not affect the addition of Expansion
Premises B to the Premises. If Tenant shall have given the notice
specified in subsection (z) above revoking its exercise of Tenant's Second
Expansion Notice, then the provisions of this Section 2.1.1(B) shall be
null and void and of no further force and effect and Tenant shall have no
further rights with respect to Expansion Premises B (except as may be set
forth in Section 2.1.2 below).
Notwithstanding anything contained in this Lease to the contrary, it is
understood and agreed that in the event Tenant shall exercise its option
to lease Expansion Premises B as set forth in this Section 2.1.1(B), the
Term of this Lease for the entire Premises (i.e. the Premises, Expansion
Premises A if Tenant has leased the same and Expansion Premises B, but not
including any First Offer Space as defined in Section 2.1.2 below) shall
be adjusted to create a new term commencing on the Expansion Premises B
Delivery Date and expiring on the last day of the sixtieth (60th) full
calendar month immediately following the Expansion Premises B Delivery
Date (the "Adjusted Term") (it being understood and agreed that Tenant's
right to extend the Term of this Lease as set forth in Section 8.20 hereof
would thereafter apply to the entire Premises as described above and would
be exercisable upon the expiration of the Adjusted Term). Annual Fixed
Rent and Additional Rent with respect to the Premises and Expansion
Premises A would continue to be payable at the rates set forth in this
Lease with respect to that portion of the Adjusted Term as would otherwise
have constituted the remainder of the Original Term of this Lease;
provided, however, that upon what would have otherwise been the expiration
of the Original Term of this Lease with respect to the Premises and
Expansion Premises A and for the remainder of the Adjusted Term, Annual
Fixed Rent and Additional Rent with respect to such space shall be payable
at the same rates as applicable to Expansion Premises B as determined in
accordance with the provisions of this Section 2.1.1(B).
(C) Time is of the essence in the delivery by Tenant of Tenant's First
Expansion Notice and Tenant's Second Expansion Notice. It is understood
and agreed that Tenant's rights as set forth in this Section 2.1.1 shall
only be available to the extent that at the time Tenant exercises its
option and upon the delivery of the applicable expansion premises to
Tenant (i) Tenant is not then in default in the performance of any of its
obligations under this Lease beyond any applicable notice and cure
periods, (ii) Tenant has not assigned this Lease nor sublet in the
aggregate thirty-three percent (33%) or more of the Rentable Floor Area of
the Premises (except for an assignment or subletting permitted without
Landlord's consent under Section 5.6.1 hereof) and (iii) this Lease is
still in full force and effect. It is further understood and agreed that
Tenant's rights as set forth in subsection (A) and (B) above shall be
independent of each other, such that Tenant shall have the right to lease
Expansion Premises B even if it had not previously exercised its option to
lease Expansion Premises A.
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2.1.2 TENANT'S RIGHT OF FIRST OFFER. (A) As of the date hereof, the fourth (4th)
floor of the Building (the "First Offer Space") is currently unoccupied.
Landlord shall have the right to market and lease such First Offer Space
to third parties (the "Initial Tenants") in Landlord's sole discretion.
Any such leases and the terms thereof, including, but not limited to, the
original terms, any options to extend the terms, any expansion rights or
options and any amendments thereto are hereinafter called the "Initial
Leases". Subject to the Initial Leases and the rights of the Initial
Tenants thereunder, which rights are prior to the offer right of Tenant
under this Section 2.1.2 and notwithstanding that amendments to Initial
Leases may be executed by the Initial Tenants subsequent to the date of
this Lease, and provided that at the time any portion of the First Offer
Space becomes available for leasing (i) there is no "Event of Default" (as
defined in Section 7.1), (ii) Tenant has not assigned this Lease or sublet
in the aggregate thirty-three percent (33%) or more of the Rentable Floor
Area of the Premises (except for an assignment or subletting permitted
without Landlord's consent under Section 5.6.1 hereof) and (iii) this
Lease is still in full force and effect, Landlord agrees not to enter into
a lease or leases to relet any portion of the First Offer Space on or
after October 1, 2004 without first giving to Tenant an opportunity to
lease such space on the terms and conditions hereinafter provided. If such
space becomes so available for reletting, Landlord shall notify Tenant of
the availability of such space ("Landlord's Offer Notice") and shall
advise Tenant of the annual fair market rent for such space as of the date
when the same becomes so available for reletting based upon the use of
such space as first class office space and the location of such space in
the Building utilizing properties of similar character within the Boston
West Suburban Market and other business terms upon which Landlord is
willing to lease such space (collectively, the "First Offer Space Terms
and Conditions").
(B) If Tenant wishes to exercise Tenant's right of offer, Tenant shall do
so, if at all, by giving Landlord notice within fifteen (15) business days
after receipt of Landlord's Offer Notice, time being of the essence, (i)
of Tenant's desire to lease such space on the terms set forth in
Landlord's Offer Notice or (ii) requesting a broker determination of the
"Prevailing Market Rent" and other business terms and conditions for such
space (the "First Offer Space Broker Determination"), to be made in the
manner set forth in Exhibit F.
(C) If Tenant timely shall give the notice specified in subsection (B)(i)
hereinabove, the same shall constitute an agreement to enter into an
amendment to this Lease to incorporate such space into the Premises within
twenty (20) days thereafter, upon all of the same terms and conditions
contained in this Lease, except for the provisions of this Section 2.1.2,
the Annual Fixed Rent and other business terms and conditions for such
space (which shall be the First Offer Space Terms and Conditions as quoted
by Landlord) and those provisions which are inconsistent with the terms of
Landlord's Offer Notice. If Tenant timely shall have given the notice
specified in subsection (B) (ii) above requesting the First Offer Space
Broker Determination, then in order to exercise its right of first offer,
Tenant, within fifteen (15) business days after receipt of the First Offer
Space Broker Determination, shall give written notice to Landlord of
Tenant's exercise of its right of offer pursuant to this Section, in which
case the Annual Fixed Rent and other
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business terms and conditions for such space shall be as determined by the
First Offer Space Broker Determination. Upon the giving of notice by
Tenant within said fifteen (15) day period as provided in this subsection
then the same shall constitute an agreement to enter into an amendment to
this Lease to incorporate such space into the Premises within twenty (20)
days thereafter upon all the same terms, conditions, covenants and
agreements contained in this Lease, except for the provisions of this
Section 2.1.2, the Annual Fixed Rent and other business terms and
conditions for such space which shall be determined as described in this
subsection and those provisions which are consistent with the terms of
Landlord's Offer Notice.
(D) If Tenant shall not so exercise such right to lease such space within
the periods specified in subsections (B) or (C) above, as applicable, time
being of the essence in respect of such exercise, Tenant shall have no
further right of offer hereunder with respect to that portion of the First
Offer Space then being offered for lease (it being understood that
Tenant's right of first offer shall be a one time right only) and Landlord
shall be free to enter into a lease or leases of such space with another
prospective tenant or tenants upon such terms and conditions as Landlord
shall determine, which terms may include rights for options to extend the
term or to expand the size of the premises under such lease or leases;
provided, however, that if following the date of Landlord's Offer Notice,
Landlord proposes to lease the applicable portion of the First Offer Space
at a rental rate that is equal to or less than ninety-five percent (95%)
of the rental rate set forth in Landlord's Offer Notice, the terms of this
Section 2.1.2 shall continue to apply to such portion of the First Offer
Space.
(E) If Tenant shall exercise any such right of first offer and if,
thereafter, the then occupant of the premises with respect to which Tenant
shall have so exercised such right wrongfully fails to deliver possession
of such premises at the time when its tenancy is scheduled to expire,
commencement of the term of Tenant's occupancy and lease of such
additional space shall, in the event of such holding over by such
occupant, be deferred until possession of the additional space is
delivered to Tenant and no rent shall be due on such additional space
until the same is delivered to Tenant. The failure of the then occupant of
such premises to so vacate, shall not give Tenant any right to terminate
this Lease or to deduct from, offset against or withhold Annual Fixed Rent
or additional rent or other charges payable under this Lease or any
portions thereof. Notwithstanding the foregoing, Tenant shall have the
right to rescind its exercise of its right of first offer hereunder in the
event that Landlord shall fail to deliver the applicable portion of the
First Offer Space within six (6) months from the delivery date set forth
in Landlord's Offer Notice, which such rescission shall be set forth in a
notice given by Tenant to Landlord no later than fifteen (15) days from
the expiration of the aforesaid six-month period.
(F) It is understood and agreed that Tenant's rights as set forth in this
Section 2.1.2 shall be independent of its rights as set forth in Section
2.1.1 above, such that Tenant shall have the right to lease the First
Offer Space regardless of whether or not it has exercised its rights to
lease Expansion Premises A and/or Expansion Premises B.
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2.2 RIGHTS TO USE COMMON FACILITIES. Subject to Landlord's right to change or
alter any of the following in Landlord's discretion as herein provided,
Tenant shall have, as appurtenant to the Premises, the non- exclusive
right to use in common with others, subject to reasonable rules of general
applicability to tenants of the Building from time to time made by
Landlord of which Tenant is given notice (a) the common lobbies,
corridors, stairways, elevators and loading platform of the Building, and
the pipes, ducts, conduits, wires and appurtenant meters and equipment
serving the Premises in common with others, (b) common walkways and
driveways necessary for access to the Building, (c) if the Premises
include less than the entire rentable floor area of any floor, the common
toilets, corridors and elevator lobby of such floor, and (d) the cafeteria
and fitness center serving the Building. Notwithstanding anything to the
contrary herein, Landlord has no obligation to allow any particular
telecommunication service provider to have access to the Building or to
the Premises except as may be required by applicable law. If Landlord
permits such access, Landlord may condition such access upon the payment
to Landlord by the service provider of fees assessed by Landlord in its
sole discretion.
2.2.1 TENANT'S PARKING. In addition, Tenant shall have the right, free of charge
during the Original Term of this Lease, to use in the parking area the
Number of Parking Spaces (referred to in Section 1.1, which such Number of
Parking Spaces shall be increased proportionately to reflect any increases
in the Rentable Floor Area of the Premises) for the parking of
automobiles, in common with use by other tenants from time to time of the
Complex, provided, however, that Landlord shall not be obligated to
furnish stalls or spaces on the Site specifically designated for Tenant's
use. Tenant covenants and agrees that it and all persons claiming by,
through and under it, shall at all times abide by all reasonable rules and
regulations of general application promulgated by Landlord with respect to
the use of the parking areas on the Site. The parking privileges granted
herein are non-transferable except to a permitted assignee or subtenant as
provided in Section 5.6 through Section 5.6.5. Further, Landlord assumes
no responsibility whatsoever for loss or damage due to fire, theft or
otherwise to any automobile(s) parked on the Site or to any personal
property therein, however caused (except to the extent caused by the
negligence or willful misconduct of Landlord or its agents, employees or
contractors), and Tenant covenants and agrees, upon request from Landlord
from time to time, to notify its officers, employees, agents and invitees
of such limitation of liability. Tenant acknowledges and agrees that a
license only is hereby granted, and no bailment is intended or shall be
created.
2.3 LANDLORD'S RESERVATIONS. Landlord reserves the right from time to time,
without unreasonable interference with Tenant's use and with no material
reduction in the usable floor area of the Premises: (a) to install, use,
maintain, repair, replace and relocate for service to the Premises and
other parts of the Building, or either, pipes, ducts, conduits, wires and
appurtenant fixtures, wherever located in the Premises or Building, and
(b) to alter or relocate any other common facility, provided that
substitutions are substantially equivalent or better. Installations,
replacements and relocations referred to in clause (a) above shall be
located so far as practicable in the central core area of the
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Building, above ceiling surfaces, below floor surfaces or within perimeter
walls of the Premises.
2.4 HABENDUM. Tenant shall have and hold the Premises for a period commencing
on the earlier of (a) that date on which the Premises are ready for
occupancy as in Section 3.1 provided, or (b) that date on which Tenant
commences occupancy of any portion of the Premises for the Permitted Uses,
and continuing for the Term unless sooner terminated as provided in
Article VI or Article VII or unless extended as provided in Section 8.20.
As soon as may be convenient after the date has been determined on which
the Term commences as aforesaid, Landlord and Tenant agree to join with
each other in the execution of a written Declaration, in the form of
Exhibit E, in which the date on which the Term commences as aforesaid and
the Term of this Lease shall be stated. If Tenant fails to execute such
Declaration, the Commencement Date and Lease Term shall be as reasonably
determined by Landlord in accordance with the terms of this Lease.
2.5 FIXED RENT PAYMENTS. Tenant agrees to pay to Landlord, or as directed by
Landlord, at Landlord's Original Address specified in Section 1.1 hereof,
or at such other place as Landlord shall from time to time designate by
notice, (1) (a) on the Rent Commencement Date (defined in Section 1.1
hereof) and thereafter monthly, in advance, on the first day of each and
every calendar month during the Original Term, a sum equal to one twelfth
(1/12th) of the Annual Fixed Rent (sometimes hereinafter referred to as
"fixed rent") and (b) on the Commencement Date and thereafter monthly, in
advance, on the first day of each and every calendar month during the
Original Term, a sum equal to one twelfth (1/12th) of $1.00 per annum for
each square foot of Rentable Floor Area of Tenant's Space for tenant
electricity subject to escalation as provided in Section 2.8 and (2) on
the first day of each and every calendar month during the extension option
period (if exercised), a sum equal to (a) one twelfth (1/12th) of the
annual fixed rent as determined in Section 8.20 for the extension option
period plus (b) then applicable monthly electricity charges (subject to
escalation for electricity as provided in Section 2.8 hereof). Until
notice of some other designation is given, fixed rent and all other
charges for which provision is herein made shall be paid by remittance to
or for the order of Boston Properties Limited Partnership at X.X. Xxx
0000, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, and all remittances received by
Boston Properties Limited Partnership, as Agents as aforesaid, or by any
subsequently designated recipient, shall be treated as payment to
Landlord.
Annual Fixed Rent for any partial month shall be paid by Tenant to
Landlord at such rate on a pro rata basis, and, if the Rent Commencement
Date is a day other than the first day of a calendar month, the first
payment of Annual Fixed Rent which Tenant shall make to Landlord shall be
a payment equal to a proportionate part of such monthly Annual Fixed Rent
for the partial month from the Rent Commencement Date to the first day of
the succeeding calendar month.
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Additional Rent payable by Tenant on a monthly basis, as hereinafter
provided, likewise shall be prorated, and the first payment on account
thereof shall be determined in similar fashion but shall commence on the
Commencement Date; and other provisions of this Lease calling for monthly
payments shall be read as incorporating this undertaking by Tenant.
Notwithstanding that the payment of Annual Fixed Rent payable by Tenant to
Landlord shall not commence until the Rent Commencement Date, Tenant shall
be subject to, and shall comply with, all other provisions of this Lease
as and at the times provided in this Lease.
The Annual Fixed Rent and all other charges for which provision is herein
made shall be paid by Tenant to Landlord, without offset, deduction or
abatement except as otherwise specifically set forth in this Lease.
2.6 OPERATING EXPENSES. "Landlord's Operating Expenses" means the cost of
operation of the Building and the Site which shall exclude costs of
special services rendered to tenants (including Tenant) and tenant
electricity for which a separate charge is made, but shall include,
without limitation, the following: premiums for insurance carried with
respect to the Building and the Site (including, without limitation,
liability insurance, insurance against loss in case of fire or casualty
and insurance of monthly installments of fixed rent and any Additional
Rent which may be due under this Lease and other leases of space in the
Building for not more than 12 months in the case of both fixed rent and
Additional Rent and if there be any first mortgage of the Property,
including such insurance as may be required by the holder of such first
mortgage); compensation and all fringe benefits, worker's compensation
insurance premiums and payroll taxes paid to, for or with respect to all
persons engaged in the operating, maintaining or cleaning of the Building
or Site, water, sewer, electric, gas, oil and telephone charges (excluding
utility charges separately chargeable to tenants for additional or special
services); cost of building and cleaning supplies and equipment; cost of
maintenance, cleaning and repairs (other than repairs not properly
chargeable against income or reimbursed from contractors under
guarantees); cost of snow removal and care of landscaping; payments under
service contracts with independent contractors; cost of operating,
maintaining and cleaning the cafeteria and fitness center serving the
Building; management fees at reasonable rates consistent with the type of
occupancy and the service rendered; and all other reasonable and necessary
expenses paid in connection with the operation, cleaning and maintenance
of the Building and the Site and properly chargeable against income,
provided, however, there shall be included (a) depreciation for capital
expenditures made by Landlord (i) to reduce Landlord's Operating Expenses
if Landlord shall have reasonably determined that the annual reduction in
Landlord's Operating Expenses shall exceed depreciation therefor and
interest thereon or (ii) to comply with applicable laws, rules,
regulations, requirements, statutes, ordinances, by-laws and court
decisions of all public authorities which are hereafter in force; plus (b)
in the case of both (i) and (ii) an interest factor, reasonably determined
by Landlord, as being the interest rate then charged for long term
mortgages by institutional lenders on
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like properties within the locality in which the Building is located;
depreciation in the case of both (i) and (ii) shall be determined by
dividing the original cost of such capital expenditure by the number of
years of useful life of the capital item acquired and the useful life
shall be reasonably determined by Landlord in accordance with generally
accepted accounting principles and practices in effect at the time of
acquisition of the capital item.
Notwithstanding the foregoing provisions, the following shall be excluded
from Landlord's Operating Expenses:
(1) Leasing fees or commissions, advertising and promotional expenses,
legal fees, the cost of tenant improvements, build out allowances,
moving expenses, and other concessions incurred in connection with
leasing spacing in the Building;
(2) Interest on indebtedness, debt amortization, ground rent, and
refinancing costs for any mortgage or ground lease of the Building
or the Site;
(3) Expenses incurred in obtaining a tax refund and abatement which have
otherwise been paid by Tenant pursuant to Section 2.7;
(4) Costs incurred in performing work or finishing services for any
tenant (including Tenant), whether at such tenant's or Landlord's
expense, to the extent that such work or services is in excess or
any work or service the Landlord is obligated to furnish to Tenant
at Landlord's expense;
(5) The cost of any item or service to the extent to which Landlord is
reimbursed or compensated by insurance, any tenant, or any third
party;
(6) The cost of repairs or replacements incurred by reason of fire or
other casualty or condemnation other than costs not in excess of the
deductible on any insurance maintained by Landlord which provides a
recovery for such repair or replacement;
(7) Any advertising, promotional or marketing expenses for the Building;
(8) With the exception of the management fee described in the first
paragraph of this Section 2.6, the cost of any service or materials
provided by any party related to Landlord, to the extent such costs
exceed the reasonable cost for such service or materials absent such
relationship in buildings similar to the Building in the vicinity of
the Building;
(9) Penalties and interest for late payment of any obligations of
Landlord, including, without limitation, taxes, insurance, equipment
leases and other past due amounts;
(10) Salaries or other compensation paid to employees above the grade of
Building manager;
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(11) Cost of installing sculpture, paintings or other objects of art;
(12) Cost of repairs, replacements, alterations or improvements necessary
to make the Building comply with applicable law as of the date of
this Lease;
(13) Legal fees or other expenses incurred in connection with negotiating
and enforcing leases with tenants in the Building; and
(14) Depreciation except as specifically otherwise expressly provided in
this Lease.
"Operating Expenses Allocable to the Premises" shall mean the same
proportion of Landlord's Operating Expenses for and pertaining to the
Building and the Site as the Rentable Floor Area of Tenant's Space bears
to the Total Rentable Floor Area of the Building.
"Base Operating Expenses" is hereinbefore defined in Section 1.1. Base
Operating Expenses shall not include utility increases due to
extraordinary circumstances, including, but not limited to, conservation
surcharges, boycotts, embargoes or other shortages.
"Base Operating Expenses Allocable to the Premises" means the same
proportion of Base Operating Expenses for and pertaining to the Building
and the Site as the Rentable Floor Area of Tenant's Space bears to the
Total Rentable Floor Area of the Building.
If with respect to any calendar year falling within the Term, or fraction
of a calendar year falling within the Term at the beginning or end
thereof, the Operating Expenses Allocable to the Premises for a full
calendar year exceed Base Operating Expenses Allocable to the Premises, or
for any such fraction of a calendar year exceed the corresponding fraction
of Base Operating Expenses Allocable to the Premises, then Tenant shall
pay to Landlord, as Additional Rent, the amount of such excess. Such
payments shall be made at the times and in the manner hereinafter provided
in this Section 2.6. (Base Operating Expenses Allocable to the Premises
referred to above do not include the $1.00 for tenant electricity to be
paid by Tenant at the time of payment of Annual Fixed Rent and for which
provision is made in Section 2.5 hereof, separate provision being made in
Section 2.8 of this Lease for Tenant's share of increases in electricity
costs.)
Not later than one hundred and twenty (120) days after the end of the
first calendar year or fraction thereof ending December 31 and of each
succeeding calendar year during the Term or fraction thereof at the end of
the Term, Landlord shall render Tenant a statement in reasonable detail
and according to usual accounting practices certified by a representative
of Landlord, showing for the preceding calendar year or fraction thereof,
as the case may be, Landlord's Operating Expenses and Operating Expenses
Allocable to the Premises. Said statement to be rendered to Tenant shall
also show for the preceding year or fraction thereof as the case may be
the amounts of operating expenses already paid by Tenant as Additional
Rent, and the amount of operating expenses remaining due from, or
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overpaid by, Tenant for the year or other period covered by the statement.
Within thirty (30) days after the date of delivery of such statement,
Tenant shall pay to Landlord the balance of the amounts, if any, required
to be paid pursuant to the above provisions of this Section 2.6 with
respect to the preceding year or fraction thereof, or Landlord shall
credit any amounts due from it to Tenant pursuant to the above provisions
of this Section 2.6 against (i) monthly installments of fixed rent next
thereafter coming due or (ii) any sums then due from Tenant to Landlord
under this Lease (or refund within thirty (30) days such portion of the
overpayment as aforesaid if the Term has ended and Tenant has no further
obligation to Landlord). Upon no less than five (5) business days prior
notice to Landlord, Tenant, at Tenant's expense, may examine Landlord's
books and records regarding such statement at a mutually agreeable time
during Landlord's business hours at a place designated by Landlord, but
Landlord need not retain such books or records for more than three (3)
years after the close of the applicable calendar year. In the event such
examination reveals a discrepancy between such statement and Landlord's
Operating Expenses, Tenant shall provide Landlord written notice thereof
within thirty (30) days of the examination. Within a reasonable time
following Landlord's receipt of such notice not to exceed thirty (30)
days, Landlord shall have the right to verify such discrepancy as stated
in Tenant's notice, and if Landlord reasonably determines such discrepancy
shall exist, Landlord shall provide Tenant notice confirming the amount of
the refund due to Tenant or payment due to Landlord, as applicable, due to
such discrepancy. The failure by Landlord to respond to Tenant's notice
within the aforesaid thirty (30) day period shall be deemed to be a
confirmation by Landlord of such discrepancy. Within thirty (30) days of
Tenant's receipt of such notice, the amount due to such discrepancy shall
be refunded to Tenant or paid to Landlord, as applicable. In addition, in
the event there is a discrepancy between Landlord's statement and
Landlord's Operating Expenses exceeding five percent (5%), Landlord shall
reimburse Tenant for Tenant's reasonable fees paid by Tenant for the
examination of Landlord's books and records in an amount not to exceed
$5,000.00. Tenant shall hold such books, records and other information
gathered from such examination in confidence and not disclose the same to
any other party, including, without limitation, any other tenant in the
Building.
In addition, Tenant shall make payments monthly on account of Tenant's
share of increases in Landlord's Operating Expenses anticipated for the
then current year at the time and in the fashion herein provided for the
payment of fixed rent. The amount to be paid to Landlord shall be an
amount reasonably estimated annually by Landlord to be sufficient to
cover, in the aggregate, a sum equal to Tenant's share of such increases
in operating expenses for each calendar year during the Term.
Notwithstanding the foregoing provisions, no decrease in Landlord's
Operating Expenses shall result in a reduction of the amount otherwise
payable by Tenant if and to the extent said decrease is attributable to
vacancies in the Buildings rather than to any other causes.
2.7 REAL ESTATE TAXES. If with respect to any full Tax Year or fraction of a
Tax Year falling within the Term, Landlord's Tax Expenses Allocable to the
Premises as hereinafter defined for a full Tax Year exceed $3.75 per
square foot of Rentable Floor Area of the
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Premises, or for any such fraction of a Tax Year exceed the corresponding
fraction of $3.75 per square foot of Rentable Floor Area of the Premises,
then Tenant shall pay to Landlord, as Additional Rent, the amount of such
excess. Not later than ninety (90) days after Landlord's Tax Expenses
Allocable to the Premises are determined for the first such Tax Year or
fraction thereof and for each succeeding Tax Year or fraction thereof
during the Term, Landlord shall render Tenant a statement in reasonable
detail certified by a representative of Landlord showing for the preceding
year or fraction thereof, as the case may be, real estate taxes on the
Building and the Site and abatements and refunds of any taxes and
assessments. Expenditures for legal fees and for other expenses incurred
in obtaining the tax refund or abatement may be charged against the tax
refund or abatement before the adjustments are made for the Tax Year. Said
statement to be rendered to Tenant shall also show for the preceding year
or fraction thereof as the case may be the amounts of real estate taxes
already paid by Tenant as Additional Rent, and the amount of real estate
taxes remaining due from, or overpaid by, Tenant for the year or other
period covered by the statement. Within thirty (30) days after the date of
delivery of the foregoing statement, Tenant shall pay to Landlord the
balance of the amounts, if any, required to be paid pursuant to the above
provisions of this Section 2.7 with respect to the preceding year or
fraction thereof, or Landlord shall credit any amounts due from it to
Tenant pursuant to the provisions of this Section 2.7 against (i) monthly
installments of fixed rent next thereafter coming due or (ii) any sums
then due from Tenant to Landlord under this Lease (or refund within thirty
(30) days such portion of the over-payment as aforesaid if the Term has
ended and Tenant has no further obligation to Landlord).
In addition, payments by Tenant on account of increases in real estate
taxes anticipated for the then current year shall be made monthly at the
time and in the fashion herein provided for the payment of fixed rent. The
amount so to be paid to Landlord shall be an amount reasonably estimated
by Landlord to be sufficient to provide Landlord, in the aggregate, a sum
equal to Tenant's share of such increases, at least ten (10) days before
the day on which such payments by Landlord would become delinquent.
To the extent that real estate taxes shall be payable to the taxing
authority in installments with respect to periods less than a Tax Year,
the foregoing statement shall be rendered and payments made on account of
such installments. Notwithstanding the foregoing provisions, no decrease
in Landlord's Tax Expenses with respect to any Tax Year shall result in a
reduction of the amount otherwise payable by Tenant if and to the extent
said decrease is attributable to vacancies in the Building or partial
completion of the Building rather than to any other causes.
Terms used herein are defined as follows:
(i) "Tax Year" means the twelve-month period beginning July 1 each year during
the Term or if the appropriate governmental tax fiscal period shall begin
on any date other than July 1, such other date.
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(ii) "Landlord's Tax Expenses Allocable to the Premises" shall mean
the same proportion of Landlord's Tax Expenses for and
pertaining to the Building and the Site as the Rentable Floor
Area of Tenant's Space bears to the Total Rentable Floor Area
of the Building.
(iii) "Landlord's Tax Expenses" with respect to any Tax Year means
the aggregate real estate taxes on the Building and Site with
respect to that Tax Year, reduced by any abatement receipts
with respect to that Tax Year.
(iv) "Real estate taxes" means all taxes and special assessments of
every kind and nature and user fees and other like fees
assessed by any governmental authority on the Building or Site
which the Landlord shall become obligated to pay because of or
in connection with the ownership, leasing and operation of the
Site, the Building and the Property and reasonable expenses of
any proceedings for abatement of taxes. The amount of special
taxes or special assessments to be included shall be limited
to the amount of the installment (plus any interest, other
than penalty interest, payable thereon) of such special tax or
special assessment required to be paid during the year in
respect of which such taxes are being determined. There shall
be excluded from such taxes all income, estate, succession,
inheritance and transfer taxes; provided, however, that if at
any time during the Term the present system of ad valorem
taxation of real property shall be changed so that in lieu of
the whole or any part of the ad valorem tax on real property
there shall be assessed on Landlord a capital levy or other
tax on the gross rents received with respect to the Site or
Building or Property, or a federal, state, county, municipal,
or other local income, franchise, excise or similar tax,
assessment, levy or charge distinct from any now in effect in
the jurisdiction in which the Property is located) measured by
or based, in whole or in part, upon any such gross rents, then
any and all of such taxes, assessments, levies or charges, to
the extent so measured or based, shall be deemed to be
included within the term "real estate taxes" but only to the
extent that the same would be payable if the Site and
Buildings were the only property of Landlord.
2.8 TENANT ELECTRICITY. If with respect to any calendar year falling within
the Term or fraction of a calendar year falling within the Term at the
beginning or end thereof, the cost of furnishing electricity to the
Premises (including electricity usage for lighting and outlets within the
Premises and the distribution component of the heating, ventilation and
air conditioning system serving the Premises) per check meter readings for
a full calendar year exceeds $1.00 per square foot of Rentable Floor Area
of the Building, or for any such fraction of a calendar year exceeds the
corresponding fraction of $1.00 per square foot of Rentable Floor Area of
the Premises, then Tenant shall pay to Landlord, as Additional Rent, on or
before the thirtieth (30th) day following receipt by Tenant of the
statement referred to below in this Section 2.8, the amount of such
excess. Payments by
21
Tenant on account of such excess shall be made monthly at the time and in
the fashion herein provided for the payment of Annual Fixed Rent. The
amount so to be paid to Landlord shall be an amount from time to time
reasonably estimated by Landlord to be sufficient to cover, in the
aggregate, a sum equal to such excess for each calendar year during the
Term. If the Landlord shall reasonably determine that the cost of the
electricity furnished to the Tenant at the Premises exceeds the amount
being paid under Sections 2.5 and 2.8, then the Landlord may charge the
Tenant for such excess and the Tenant shall pay the same within thirty
(30) days of billing therefor.
Not later than ninety (90) days after the end of the first calendar year
or fraction thereof ending December 31 and of each succeeding calendar
year during the Term or fraction thereof at the end of the Term, Landlord
shall render Tenant a reasonably detailed accounting certified by a
representative of Landlord showing for the preceding calendar year, or
fraction thereof, as the case may be, the costs of furnishing electricity
to the Premises. Said statement to be rendered to Tenant also shall show
for the preceding year or fraction thereof, as the case may be, the amount
already paid by Tenant on account of electricity, and the amount remaining
due from, or overpaid by, Tenant for the year or other period covered by
the statement.
ARTICLE III
CONDITION OF PREMISES; ALTERATIONS
3.1 SUBSTANTIAL COMPLETION.
(A) Plans and Construction Process.
(1) Landlord's Work. Attached hereto as Exhibit B are a space plan and
detailed scope showing the work to be performed by Landlord, at Landlord's
cost and expense, in order to prepare the Premises for Tenant's occupancy
(such work being hereinafter referred to as the "Landlord's Work"). For
the purposes of this Lease, the term "Landlord's Work" shall mean all
labor, materials and other work necessary for the construction of the
improvements described in Exhibit B.
(2) Additional Tenant Work. On or before September 1, 2002 (the "Tenant's
Submission Date"), Tenant shall deliver to Landlord the data and
information required by Exhibit B-1 attached hereto for approval by
Landlord (the "Tenant's Submission"), which approval Landlord shall not
unreasonably withhold or delay (provided, however, that Landlord's
determination of matters relating to aesthetic issues relating to
alterations or changes visible outside the Premises shall be in Landlord's
sole discretion), showing items of work Tenant desires Landlord to perform
in addition to the Landlord's Work (such work being hereinafter referred
to as the "Additional Tenant Work"). For the purposes of this Lease, the
term "Additional Tenant Work" shall mean all labor, materials and other
work necessary for the construction of the improvements described in the
Tenant's Submission. Landlord shall respond to Tenant within three (3)
business days
22
after receipt of Tenant's Submission, either approving such Tenant's
Submission, requesting additional information in connection therewith or
disapproving particular items shown thereon.
(3) Additional Tenant Work Costs. Upon its approval of the Tenant's
Submission, Landlord shall cause to be prepared a detailed floor plan
layout together with working drawings (the "Plans") reflecting the
Landlord's Work and the Additional Tenant Work (such work being
hereinafter referred to collectively as the "Work"). In connection with
the foregoing, it is understood and agreed that Landlord shall be
responsible for the design costs associated with the Landlord's Work and
Tenant shall be responsible (as part of the Additional Tenant Work Costs,
as hereinafter defined) for the design costs associated with the
Additional Tenant Work. On or before October 1, 2002, Landlord shall
furnish to Tenant (i) a written statement of the costs of the Additional
Tenant Work (such costs being hereinafter referred to as the "Additional
Tenant Work Costs"), which such costs shall be paid by Tenant as
Additional Rent in accordance with Section 3.5 below, and (ii) a list of
any items of the Additional Tenant Work for which there is a long lead
time in obtaining the materials therefor or which are specially or
specifically manufactured, produced or milled for the Additional Tenant
Work in the Premises and require additional time for receipt or
installation ("Long Lead Items").
(4) Authorization to Proceed Date. On or before October 8, 2002 (the
"Authorization to Proceed Date"), Tenant shall give Landlord written
authorization to either proceed with the Additional Tenant Work in
accordance with the approved Tenant's Submission or to proceed with the
Additional Tenant Work as the same may be modified by Tenant to remove
particular items of work originally shown on the Tenant's Submission (such
notice in either event being referred to as the "Notice to Proceed"). In
addition, Tenant shall, on or before the later to occur of (x) the
Authorization to Proceed Date or (y) five (5) business days after the
request therefor, execute and deliver to Landlord any affidavits and
documentation requested by Landlord in writing required in order to obtain
all permits and approvals necessary for Landlord to commence and complete
Landlord's Work on a timely basis ("Permit Documentation").
(5) Change Orders. Tenant shall have the right, in accordance herewith, to
submit for Landlord's approval change order requests subsequent to the
Notice to Proceed, if any (each, a "Change Order Request"). Landlord
agrees to respond to any such Change Order Request within such time as is
reasonably necessary (taking into consideration the information contained
in such Change Order Request) after the submission thereof by Tenant,
advising Tenant of any anticipated costs ("Change Order Costs") associated
with such Change Order Request, as well as an estimate of any delay which
would likely result in the completion of the Work if a Change Order
Request is made pursuant thereto. Tenant shall have the right to then
approve or withdraw such Change Order Request within five (5) business
days after receipt of such information. If Tenant fails to respond within
such five (5) business day period, such Change Order Request shall be
deemed withdrawn. If Tenant approves such Change Order Request, then such
Change Order Request shall be deemed a "Change Order" hereunder and if the
Change Order is made,
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then the Change Order Costs associated with the Change Order shall be
deemed additions to the Additional Tenant Work Costs and shall be paid in
the same manner as Additional Tenant Work Costs are paid as set forth in
Section 3.5.
(6) Tenant Response to Requests for Information and Approvals. Except to
the extent that another time period is expressly herein set forth, Tenant
shall respond to any written (including e-mail) request from Landlord,
Landlord's architect, Landlord's contractor and/or Landlord's Construction
Representative for approvals or information in connection with the Work,
within three (3) business days of Tenant's receipt of such request.
(7) Time of the Essence. Time is of the essence in connection with the
obligations of Landlord and Tenant under this Section 3.1.
(B) Tenant Delay.
(1) A "Tenant Delay" shall be defined as the following:
(a) Tenant's failure to submit the Tenant's Submission on or before the
Tenant's Submission Date, to give authorization to Landlord to proceed
with the Additional Tenant Work on or before the Authorization to
Proceed Date or to provide all required Permit Documentation to
Landlord on or before the Authorization to Proceed Date (assuming in
any event that such failure is not the direct result of Landlord's
failure to timely give any notice required in this Section 3.1); or
(b) Tenant's failure timely to respond to any request from Landlord,
Landlord's architect, Landlord's contractor and/or Landlord's
Construction Representative including, without limitation, within the
time periods set forth in Section 3.1(A)(6) above;
(c) Tenant's failure to pay the Additional Tenant Work Costs in
accordance with Section 3.5;
(d) Any delay due to Long Lead Items;
(e) Any delay due to changes, alterations or additions required or made
by Tenant after giving Landlord the Notice to Proceed, including,
without limitation, Change Orders; or
(f) Any other delays caused by Tenant, Tenant's contractors, or anyone
else engaged by Tenant in connection with the preparation of the
Premises for Tenant's occupancy, including, without limitation, utility
companies and other entities furnishing communications, data processing
or other service, equipment, or furniture.
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(2) Tenant Obligations with Respect to Tenant Delays.
(a) Tenant covenants that no Tenant Delay shall delay commencement of
the Term or the obligation to pay Annual Fixed Rent or Additional Rent,
regardless of the reason for such Tenant Delay or whether or not it is
within the control of Tenant, unless such Tenant Delay is the direct
result of Landlord's failure to give any notice required by Landlord to
be given under this Section 3.1. The Work shall be deemed substantially
completed as of the date when the Work would have been substantially
completed but for any Tenant Delays, as determined by Landlord's
architect in the exercise of its good faith business judgment.
(b) Tenant shall reimburse Landlord the amount, if any, by which the
cost of the Work is increased as the result of any Tenant Delay, as
reasonably evidenced by Landlord.
(c) Any amounts due from Tenant to Landlord under this Section
3.1(B)(2) shall be due and payable within thirty (30) days of billing
therefor, and shall be considered to be Additional Rent. Nothing
contained in this Section 3.1(B)(2) shall limit or qualify or prejudice
any other covenants, agreements, terms, provisions and conditions
contained in this Lease.
(C) Substantial Completion of Landlord's Work.
(1) Landlord's Obligations. Subject to Tenant Delays and delays due to
governmental regulation, unusual scarcity of or inability to obtain labor
or materials, labor difficulties, casualty, or other events reasonably
beyond Landlord's control (collectively, "Force Majeure"), Landlord shall
use reasonable speed and diligence to have the Work substantially
completed on or before the Estimated Commencement Date, but Tenant shall
have no claim against Landlord for failure so to complete construction in
the Premises, except as set forth in Section 3.2 below.
(2) Definition of Substantial Completion. The Premises shall be treated as
having been substantially completed on the later of:
(a) The date on which the Work, together with common facilities for
access and services to the Premises, has been completed (or would have
been completed except for Tenant Delays) except for minor items of work
and adjustment of equipment and fixtures which can be completed after
occupancy has been taken without causing substantial interference with
Tenant's use of the Premises (i.e. so-called "punch list" items), or
(b) The date when permission has been obtained from the applicable
governmental authority, to the extent required by law, for occupancy by
Tenant of the Premises for the Permitted Use (or would have been
obtained but for Tenant Delays).
25
In the event of any dispute as to the date on which the Work has been
substantially completed, the reasonable determination of Landlord's
architect as to such date shall be deemed conclusive and binding on both
Landlord and Tenant.
(3) Incomplete Work. Landlord shall complete as soon as conditions
practically permit any incomplete items of Work, and Tenant shall
cooperate with Landlord in providing access as may be required to complete
such work in a normal manner. Landlord shall use reasonable efforts to
minimize disruption to Tenant's business during Landlord's completion of
such work to the extent reasonably practicable under the circumstances.
(4) Early Access by Tenant. Landlord shall permit Tenant access for
installing Tenant's trade fixtures and computer, telephone and other
communications equipment, furniture, systems and wiring in portions of the
Premises no later than fourteen (14) days prior to substantial completion
when it can be done without material interference with remaining work or
with the maintenance of harmonious labor relations. Any such access by
Tenant shall be at upon all of the terms and conditions of the Lease
(other than the payment of Annual Fixed Rent, Operating Expenses Allocable
to the Premises and Landlord's Tax Expenses Allocable to the Premises and
tenant electricity) and shall be at Tenant's sole risk, and Landlord shall
not be responsible for any injury to persons or damage to property
resulting from such early access by Tenant (except to the extent caused by
the negligence or willful misconduct of Landlord or its agents, employees
or contractors).
(5) Prohibition on Access by Tenant Prior to Actual Substantial
Completion. If, prior to the date that the Premises are in fact actually
substantially complete, the Premises are deemed to be substantially
complete pursuant to the provisions of this Section 3.1 (i.e. and the
Commencement Date has therefore occurred), Tenant shall not (except with
Landlord's consent, which consent shall not be unreasonably withheld,
conditioned or delayed) be entitled to take possession of the Premises for
the Permitted Use until the Premises are in fact actually substantially
complete.
3.2 CERTAIN TENANT RIGHTS. (A) If Landlord shall have failed substantially to
complete the Work in the Premises described in the Plans on or before
April 1, 2003 (which date shall be extended automatically for such periods
of time as Landlord is prevented from proceeding with or completing the
same by reason of Tenant Delays), Landlord shall pay to Tenant or grant
Tenant free rent (at Landlord's election) in an amount equal to the sum of
(I) Seventy Thousand Two Hundred Seventy-Three and 00/100 Dollars
($70,273.00) per month (prorated as appropriate to the extent that Tenant
is only required to pay holdover costs for a partial month) (the "Holdover
Compensation"), being equal to the difference between (x) the monthly
holdover costs chargeable by the sublandlord and payable by Tenant under
that certain Agreement of Sublease dated March 31, 2000 (the "52 Second
Avenue Sublease") by and between
26
Renaissance Worldwide, Inc., as sublandlord, and Tenant, as subtenant,
with respect to premises located at 00 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx (the "52 Second Avenue Premises") during any period of time
in which Tenant remains in occupancy of the 00 Xxxxxx Xxxxxx Premises
beyond the expiration date of the 00 Xxxxxx Xxxxxx Sublease (as set forth
in the next paragraph of this subsection (A)) and (y) the monthly amount
that Tenant otherwise have been required to pay for the 00 Xxxxxx Xxxxxx
Premises in accordance with the terms and provisions of the 00 Xxxxxx
Xxxxxx Sublease in the absence of any holdover penalties, plus (II) the
costs (if any) actually incurred by Tenant under Section 17 of the 00
Xxxxxx Xxxxxx Sublease as the direct result of Landlord's failure to
substantially complete the Work by April 1, 2003, as such date may be
extended as the result of Tenant Delays (it being understood and agreed
that in no event shall Landlord be liable for any costs pursuant to this
subsection (II) in excess of Seventy Thousand Two Hundred Seventy-Three
and 00/100 Dollars ($70,273.00) in the aggregate). In that regard, it is
understood and agreed that Landlord shall under no circumstances be
required to pay any Holdover Compensation if the Work is substantially
completed on or before April 1, 2003 or if no holdover penalties are
actually imposed by the sublandlord under the 00 Xxxxxx Xxxxxx Sublease.
In connection with the foregoing, Tenant represents and warrants that (i)
there are no amendments to the 00 Xxxxxx Xxxxxx Sublease other than those
listed in the immediately preceding paragraph (if any) and (ii) the term
of the 00 Xxxxxx Xxxxxx Sublease is scheduled to expire on March 31, 2003.
Tenant further covenants and agrees that it will not amend the 00 Xxxxxx
Xxxxxx Sublease or otherwise take any action thereunder that would
increase the amount of holdover costs to be paid by Tenant under the 00
Xxxxxx Xxxxxx Sublease following the expiration of the term thereof
without the prior written consent of Landlord (provided that in any event,
if the holdover costs are increased without Landlord's consent, Landlord
shall have no liability or responsibility therefor and such increase shall
not be deemed to be a part of the Holdover Compensation otherwise payable
hereunder). In addition, notwithstanding anything contained in this
subsection (A) to the contrary, it is understood and agreed that (i)
Landlord shall have no liability or responsibility to pay any holdover
costs incurred by Tenant attributable to any reason other than the failure
of Landlord to substantially complete the Work by April 1, 2003 and (ii)
such right to receive Holdover Compensation shall be Tenant's sole and
exclusive remedy for Landlord's failure to substantially complete the Work
within such time.
(B) If Landlord shall have failed substantially to complete the Work in
the Premises described in the Plans on or before the Outside Completion
Date as defined in Section 1.1 hereof (which date shall be extended
automatically (i) for such periods of time as Landlord is prevented from
proceeding with or completing the same by reason of Tenant Delays or (ii)
for up to two hundred forty (240) days in the event of any Force Majeure
as defined in Section 3.1) Tenant shall have the right to terminate this
Lease by giving notice to Landlord of Tenant's desire to do so before such
completion and within the time period from the Outside Completion Date (as
so extended) until the date which is thirty (30) days subsequent to the
Outside Completion Date (as so extended); and, upon the giving of such
notice, the term of this Lease shall cease and come to an end without
further
27
liability or obligation on the part of either party unless, within thirty
(30) days after receipt of such notice, Landlord substantially completes
the Work; and such right of termination shall be Tenant's sole and
exclusive remedy for Landlord's failure so to complete the Work within
such time. Each day of Tenant Delay shall be deemed conclusively to cause
an equivalent day of delay by Landlord in substantially completing the
Work pursuant to Section 3.1, and thereby automatically extend for each
such equivalent day of delay the date of the Outside Completion Date.
3.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION. All construction work
required or permitted by this Lease shall be done in a good and
workmanlike manner and in compliance with all applicable laws, ordinances,
rules, regulations, statutes, by-laws, court decisions, and orders and
requirements of all public authorities ("Legal Requirements") and all
requirements of insurers of the Building ("Insurance Requirements"). All
of Tenant's work shall be coordinated with any work being performed by or
for Landlord and in such manner as to maintain harmonious labor relations.
Each party may inspect the work of the other at reasonable times and shall
promptly give notice of observed defects. Each party authorizes the other
to rely in connection with design and construction upon approval and other
actions on the party's behalf by any Construction Representative of the
party named in Section 1.1 or any person hereafter designated in
substitution or addition by notice to the party relying. Except as
otherwise provided in Article IV, the work required of Landlord pursuant
to this Article III shall be deemed approved by Tenant when Tenant
commences occupancy of the Premises for the Permitted Uses, except for (i)
items which are uncompleted (including punch list items and long lead
items) at the time Tenant commences occupancy, (ii) items as to which
Tenant shall have given notice to Landlord within thirty (30) days of the
Commencement Date and (iii) items which could not readily have been
discovered in the exercise of reasonable diligence within the thirty (30)
day period set forth in subsection (ii) above and as to which Tenant shall
have given notice no later than twelve (12) months after the date
Landlord's Work is deemed substantially complete in accordance with
Section 3.1 above.
3.4 INTENTIONALLY OMITTED.
3.5 ADDITIONAL TENANT WORK COSTS. To the extent, if any, that there are
Additional Tenant Work Costs, Tenant shall pay Landlord, as Additional
Rent, 100% of the Additional Tenant Work Costs at the time the Notice to
Proceed is given (or in the case of a Change Order, at the time of
Tenant's approval of the Change Order Request).
3.6 ALTERATIONS. Tenant shall not make alterations and additions to Tenant's
space except in accordance with plans and specifications therefor first
approved by Landlord, which approval shall not be unreasonably withheld or
delayed (provided, however, that Tenant shall have the right to make
decorative changes such as repainting or recarpeting the Premises at a
cost not to exceed $50,000 during any twelve (12) month period during the
Lease Term without Landlord's consent, so long as the other conditions set
forth in this Section 3.6 have been satisfied). However, Landlord's
determination of matters
28
relating to aesthetic issues relating to alterations, additions or
improvements which are visible outside the Premises shall be in Landlord's
sole discretion. Without limiting such standard Landlord shall not be
deemed unreasonable for withholding approval of any alterations or
additions (including, without limitation, any alterations or additions to
be performed by Tenant under Section 3.1) which (a) in Landlord's opinion
might adversely affect any structural or exterior element of the Building,
any area or element outside of the Premises, or any facility serving any
area of the Building outside of the Premises, or (b) involve or affect the
exterior design, size, height, or other exterior dimensions of the
Building or (c) will require unusual expense to readapt the Premises to
normal office use on Lease termination or expiration or increase the cost
of construction or of insurance or taxes on the Building or of the
services called for by Section 4.1 unless Tenant first gives assurance
acceptable to Landlord for payment of such increased cost and that such
readaptation will be made prior to such termination or expiration without
expense to Landlord, or (d) enlarge the Rentable Floor Area of the
Premises. Landlord's review and approval of any such plans and
specifications and consent to perform work described therein shall not be
deemed an agreement by Landlord that such plans, specifications and work
conform with applicable Legal Requirements and Insurance Requirements nor
deemed a waiver of Tenant's obligations under this Lease with respect to
applicable Legal Requirements and Insurance Requirements nor impose any
liability or obligation upon Landlord with respect to the completeness,
design sufficiency or compliance of such plans, specifications and work
with applicable Legal Requirements and Insurance Requirements. All
alterations and additions shall be part of the Building unless and until
Landlord shall specify the same for removal pursuant to Section 5.2. All
of Tenant's alterations and additions and installation of furnishings
shall be coordinated with any work being performed by Landlord and in such
manner as to maintain harmonious labor relations and not to damage the
Building or Site or unreasonably interfere with construction or operation
of the Building and other improvements to the Site and, except for
installation of furnishings, shall be performed by Landlord's general
contractor or by contractors or workmen first approved by Landlord. Except
for work by Landlord's general contractor, Tenant, before its work is
started, shall secure all licenses and permits necessary therefor; deliver
to Landlord a statement of the names of all its contractors and
subcontractors and the estimated cost of all labor and material to be
furnished by them and security satisfactory to Landlord protecting
Landlord against liens arising out of the furnishing of such labor and
material; and cause each contractor to carry workmen's compensation
insurance in statutory amounts covering all the contractor's and
subcontractor's employees and commercial general liability insurance or
comprehensive general liability insurance with a broad form comprehensive
liability endorsement with such limits as Landlord may reasonably require,
but in no event less than $2,000,000.00 combined single limit per
occurrence on a per location basis (all such insurance to be written in
companies reasonably approved by Landlord and naming and insuring Landlord
and Landlord's managing agent as additional insureds and insuring Tenant
as well as the contractors), and to deliver to Landlord certificates of
all such insurance. Tenant agrees to pay promptly when due the entire cost
of any work done on the Premises by Tenant, its agents, employees, or
independent contractors, and not to cause or permit any liens for labor or
materials performed or furnished in connection therewith to attach
29
to the Premises or the Buildings or the Site and immediately to discharge
any such liens which may so attach. Tenant shall pay, as Additional Rent,
100% of any real estate taxes on the Complex which shall, at any time
after commencement of the Term, directly and specifically result from any
alteration, addition or improvement to the Premises made by Tenant.
ARTICLE IV
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 LANDLORD COVENANTS:
4.1.1 SERVICES FURNISHED BY LANDLORD. To furnish services, utilities,
facilities and supplies set forth in Exhibit C equal to those customarily
provided by landlords in high quality buildings in the Boston West
Suburban Market subject to escalation reimbursement in accordance with
Section 2.6.
4.1.2 ADDITIONAL SERVICES AVAILABLE TO TENANT. To furnish, at Tenant's
expense, reasonable additional Building operation services which are usual
and customary in similar office buildings in the Boston West Suburban
Market upon reasonable advance request of Tenant at reasonable and
equitable rates from time to time established by Landlord. Tenant agrees
to pay to Landlord, as Additional Rent, the cost of any such additional
Building services requested by Tenant and for the cost of any additions,
alterations, improvements or other work performed by Landlord in the
Premises at the request of Tenant within thirty (30) days after being
billed therefor.
4.1.3 ROOF, EXTERIOR WALL, FLOOR SLAB AND COMMON FACILITY REPAIRS. Except
for (a) normal and reasonable wear and use and (b) damage caused by fire
and casualty and by eminent domain, and except as otherwise provided in
Article VI and subject to the escalation provisions of Section 2.6, (i) to
make such repairs to and replacements of the roof, exterior walls, floor
slabs and common areas, building systems (including heating, ventilation
and air conditioning, electrical, water and sewer) and facilities as may
be necessary to keep them in good and serviceable condition and (ii) to
maintain the Building (exclusive of Tenant's responsibilities under this
Lease) in a first class manner comparable to the maintenance of similar
properties in the Boston West Suburban Market.
4.1.4 SIGNAGE. (A) To provide and install, at Landlord's expense, letters
to identify Tenant's official name (i) in the existing building standard
directory located at the ground floor entrances to the Building, (ii) on
the existing monument sign at the intersection of Route 117 and Xxxxx
Road, (iii) on the existing monument type directional sign at the entrance
to the drop-off area for the Building and (iv) in the existing brush
stainless steel signage system in the main lobby on the ground floor of
the Building.
30
(B) All signage described herein shall be in the building standard
graphics and no others shall be used or permitted.
(C) Tenant's rights set forth herein shall be available only so long as
this Lease is in full force and effect and there shall not exist any Event
of Default, and shall not be available and shall cease at such time as
Netegrity, Inc. shall cease to be the Tenant hereunder (provided, however,
that such signage rights shall be transferable in the event of an
assignment or subleasing pursuant to Section 5.6.1 below, so long as
Tenant pays all costs associated with resigning).
(D) Tenant's rights as set forth herein shall be in common with signage
rights granted from time to time by Landlord or the owner of the Site or
portions thereof to other tenants of the Building or the Site.
4.2 INTERRUPTIONS AND DELAYS IN SERVICES AND REPAIRS, ETC. Landlord shall not
be liable to Tenant for any compensation or reduction of rent by reason of
inconvenience or annoyance or for loss of business arising from the
necessity of Landlord or its agents entering the Premises in the manner
set forth in this Lease for any of the purposes in this Lease authorized,
or for repairing the Premises or any portion of the Building however the
necessity may occur. In case Landlord is prevented or delayed from making
any repairs, alterations or improvements, or furnishing any services or
performing any other covenant or duty to be performed on Landlord's part,
by reason of any cause reasonably beyond Landlord's control, including
without limitation the causes set forth in Section 3.2 hereof as being
reasonably beyond Landlord's control, Landlord shall not be liable to
Tenant therefor, nor, except as expressly otherwise provided below or in
Article VI, shall Tenant be entitled to any abatement or reduction of rent
by reason thereof. Notwithstanding the foregoing, in the event that the
electrical, heating, ventilating, air conditioning, or all elevator
service to the Premises shall be shut down for more than five (5) full and
consecutive business days, then, Tenant shall be entitled to an equitable
abatement of Annual Fixed Rent in an amount proportionate to the nature
and extent of the interruption of Tenant's usage of the Premises as a
result of the loss of service (taking into account any recovery Tenant may
receive under any insurance policy providing coverage for business
interruption). Notwithstanding anything herein contained to the contrary,
in no event shall any of the events referred to in this Section give rise
to a claim in Tenant's favor that such failure constitutes actual or
constructive, total or partial, eviction from the Premises.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs
have been completed; provided, however, that in each instance of stoppage,
Landlord shall exercise reasonable diligence to eliminate the cause
thereof. Except in case of emergency repairs, Landlord will give Tenant
reasonable advance notice of any contemplated stoppage and will use
reasonable efforts to avoid unnecessary inconvenience to Tenant by reason
thereof.
4.3 LANDLORD INSURANCE. Landlord shall carry at all times during the Term of
this
31
Lease (i) commercial general liability insurance with respect to the
Building in an amount not less than $5,000,000.00 combined single limit
per occurrence and (ii) insurance against loss or damage with respect to
the Building covered by the so-called "all risk" type insurance coverage
in an amount equal to at least the replacement value of the Building.
Landlord may also maintain such other insurance as may from time to time
be required by a mortgagee holding a mortgage lien on the Building.
Further, Landlord may also maintain such insurance against loss of annual
fixed rent and additional rent and such other risks and perils as Landlord
deems proper. Any and all such insurance (i) may be maintained under a
blanket policy affecting other properties of Landlord and/or its
affiliated business organizations, (ii) may be written with deductibles as
determined by Landlord and (iii) shall be subject to escalation
reimbursement in accordance with Section 2.6.
4.4 ADA COMPLIANCE. As of the date hereof, Landlord represents and warrants
that Landlord has not received notice from any governmental agencies that
the Building is in violation of Title III of the Americans with
Disabilities Act.
ARTICLE V
TENANT'S COVENANTS
Tenant covenants during the term and such further time as Tenant occupies
any part of the Premises:
5.1 PAYMENTS. To pay when due all fixed rent and Additional Rent and all
charges for utility services rendered to the Premises (except as otherwise
provided in Exhibit C) and, as further Additional Rent, all charges for
additional services rendered pursuant to Section 4.1.2.
5.2 REPAIR AND YIELD UP. Except as otherwise provided in Article VI and
Section 4.1.3 to keep the Premises in good order, repair and condition,
reasonable wear and tear and damage caused by casualty or eminent domain
only excepted, and all glass in windows (except glass in exterior walls
unless the damage thereto is attributable to Tenant's negligence or
misuse) and doors of the Premises whole and in good condition with glass
of the same type and quality as that injured or broken, damage by fire or
taking under the power of eminent domain only excepted, and at the
expiration or termination of this Lease peaceably to yield up the Premises
all construction, work, improvements, and all alterations and additions
thereto in good order, repair and condition, reasonable wear and tear and
damage caused by casualty or eminent domain only excepted, first removing
(i) all goods and effects of Tenant, (ii) to the extent specified by
Landlord by notice to Tenant given at least ten (10) days before such
expiration or termination, the wiring for Tenant's computer, telephone and
other communication systems and equipment and (iii) to the extent
specified by Landlord at the time approval of the same is given, all
alterations and additions made by Tenant and all partitions, and in any
event repairing any
32
damage caused by such removal and restoring the Premises and leaving them
clean and neat. Tenant shall not permit or commit any waste, and Tenant
shall be responsible for the cost of repairs which may be made necessary
by reason of damage to common areas in the Building, to the Site or to the
other building caused by Tenant, Tenant's agents, contractors, employees,
sublessees, licensees, concessionaires or invitees.
5.3 USE. To use and occupy the Premises for the Permitted Use only, and not to
injure or deface the Premises, Building, the Site or any other part of the
Complex nor to permit in the Premises or on the Site any auction sale,
vending machine (unless consented to by Landlord, which consent shall not
be unreasonably withheld or delayed), or inflammable fluids or chemicals,
or nuisance, or the emission from the Premises of any objectionable noise
or odor, and not to use or devote the Premises or any part thereof for any
purpose other than the Permitted Uses, nor any use thereof which is
inconsistent with the maintenance of the Building as an office building of
the first class in the quality of its maintenance, use and occupancy, or
which is contrary to law or ordinance or liable to invalidate or increase
the premiums for any insurance on the Building or its contents or liable
to render necessary any alteration or addition to the Building that would
not have been rendered necessary but for such use by Tenant. Further, (i)
Tenant shall not, nor shall Tenant permit its employees, invitees, agents,
independent contractors, contractors, assignees or subtenants to, keep,
maintain, store or dispose of (into the sewage or waste disposal system or
otherwise) or engage in any activity which might produce or generate any
substance which is or may hereafter be classified as a hazardous material,
waste or substance (collectively "Hazardous Materials"), under federal,
state or local laws, rules and regulations, including, without limitation,
42 U.S.C. Section 6901 et seq., 42 U.S.C. Section 9601 et seq., 42 U.S.C.
Section 2601 et seq., 49 U.S.C. Section 1802 et seq. and Massachusetts
General Laws, Chapter 21E and the rules and regulations promulgated under
any of the foregoing, as such laws, rules and regulations may be amended
from time to time (collectively "Hazardous Materials Laws"), (ii) Tenant
shall immediately notify Landlord of any incident in, on or about the
Premises, the Building or the Site that would require the filing of a
notice under any Hazardous Materials Laws, (iii) Tenant shall comply and
shall cause its employees, invitees, agents, independent contractors,
contractors, assignees and subtenants to comply with each of the foregoing
and (iv) Landlord shall have the right to make such inspections (including
testing) as Landlord shall elect from time to time to determine that
Tenant is complying with the foregoing.
Notwithstanding the foregoing, Tenant may use normal amounts and types of
substances typically used for office uses, provided that Tenant uses such
substances in the manner in which they are normally used, and in
compliance with all Hazardous Materials Laws and other Legal Requirements.
5.4 OBSTRUCTIONS; ITEMS VISIBLE FROM EXTERIOR; RULES AND REGULATIONS. Not to
obstruct in any manner any portion of the Building not hereby leased or
any portion thereof or of the Site used by Tenant in common with others;
not without prior consent of Landlord to permit the painting or placing of
any signs, curtains, blinds, shades, awnings, aerials or flagpoles, or the
like, visible from outside the
33
Premises; and to comply with all reasonable Rules and Regulations of
general applicability now or hereafter made by Landlord, of which Tenant
has been given notice, for the care and use of the Building and Site and
their facilities and approaches; Landlord shall not be liable to Tenant
for the failure of other occupants of the Buildings to conform to such
Rules and Regulations.
5.5 SAFETY APPLIANCES. To keep the Premises equipped with all safety
appliances required by any public authority because of any use made by
Tenant other than normal office use, and to procure all licenses and
permits so required because of such use and, if requested by Landlord, to
do any work so required because of such use, it being understood that the
foregoing provisions shall not be construed to broaden in any way Tenant's
Permitted Use.
5.6 ASSIGNMENT; SUBLEASE. Except as otherwise expressly provided herein,
Tenant covenants and agrees that it shall not assign, mortgage, pledge,
hypothecate or otherwise transfer this Lease and/or Tenant's interest in
this Lease or sublet (which term, without limitation, shall include
granting of concessions, licenses or the like) the whole or any part of
the Premises. Any assignment, mortgage, pledge, hypothecation, transfer or
subletting not expressly permitted in or consented to by Landlord under
Sections 5.6.1-5.6.5 shall be void, ab initio; shall be of no force and
effect; and shall confer no rights on or in favor of third parties. In
addition, Landlord shall be entitled to seek specific performance of or
other equitable relief with respect to the provisions hereof.
5.6.1 Notwithstanding the foregoing provisions of Section 5.6 above and the
provisions of Sections 5.6.2 and 5.6.4 below, but subject to the
provisions of Sections 5.6.3 and 5.6.5, below Tenant shall have the right
to assign this Lease or to sublet the Premises (in whole or in part) to
(i) any parent or subsidiary corporation of Tenant, (ii) any corporation
into which Tenant may be converted or with which it may merge or (iii) any
entity which acquires all or substantially all of the stock or assets of
Tenant, provided that in the event of any of the foregoing the entity to
which this Lease is so assigned or which so sublets the Premises has a
credit worthiness (e.g. assets on a pro forma basis using generally
accepted accounting principles consistently applied and using the most
recent financial statements) which is the same or better than the Tenant
as of the date of this Lease. In the event of an assignment or subletting
pursuant to subsection (i) above, if any parent or subsidiary corporation
of Tenant to which this Lease is assigned or the Premises sublet (in whole
or in part) shall cease to be such a parent or subsidiary corporation,
such cessation shall be considered a new assignment or subletting subject
to the applicable provisions of Sections 5.6 through 5.6.5 as appropriate.
5.6.1.1 Notwithstanding the provisions of Section 5.6 above, in the event Tenant
desires (i) to assign this Lease or (ii) to sublet fifty percent (50%) or
more of the Rentable Floor Area of the Premises for all or substantially
all of the then-remaining Term of this Lease, Tenant shall notify Landlord
thereof in writing and Landlord shall have the right at its sole option,
to be exercised within twenty (20) days after receipt of Tenant's notice,
to terminate this Lease as of the effective date of the proposed
assignment or subletting (as
34
set forth in Tenant's notice); provided, however, that upon the
termination date, all obligations relating to the period after such
termination date (but not those relating to the period before such
termination date) shall cease and promptly upon being billed therefor by
Landlord, Tenant shall make final payment of all Annual Fixed Rent and
Additional Rent due from Tenant through the termination date.
Notwithstanding the foregoing, in the event that Tenant shall only propose
to sublease a portion of the Premises, Landlord shall only have the right
to so terminate this Lease with respect to the portion of the Premises
which Tenant proposes to sublease (the "Terminated Portion of the
Premises") and from and after the termination date the Rentable Floor Area
of the Premises shall be reduced to the rentable floor area of the
remainder of the Premises and the definition of Rentable Floor Area of the
Premises shall be so amended and after such termination all references in
this Lease to the "Premises" or the "Rentable Floor Area of the Premises"
shall be deemed to be references to the remainder of the Premises and
accordingly Tenant's payments for Annual Fixed Rent, operating costs, real
estate taxes and electricity shall be reduced on a pro rata basis to
reflect the size of the remainder of the Premises.
In the event that Landlord shall not exercise its termination rights as
aforesaid, or shall fail to give any or timely notice pursuant to this
Section, the provisions of Sections 5.6.2-5.6.5 shall be applicable. This
Section 5.6.1.1 shall not be applicable to an assignment or sublease
pursuant to Section 5.6.1.
5.6.2 Notwithstanding the provisions of Section 5.6 above, but subject to the
provisions of this Section 5.6.2 and the provisions of Sections 5.6.3,
5.6.4 and 5.6.5 below, in the event that Landlord shall not have exercised
the termination right as set forth in Section 5.6.1.1, or shall have
failed to give any or timely notice under Section 5.6.1.1, then for a
period of one hundred twenty (120) days (i) after the receipt of
Landlord's notice stating that Landlord does not elect the termination
right, or (ii) after the expiration of the twenty (20) day period referred
to in Section 5.6.1.1, in the event Landlord shall not give any or timely
notice under Section 5.6.1.1 as the case may be, Tenant shall have the
right to assign this Lease or sublet the Premises in accordance with
Tenant's notice to Landlord given as provided in Section 5.6.3 provided
that, in each instance, Tenant first obtains the express prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed. Without limiting the foregoing standard, Landlord shall not be
deemed to be unreasonably withholding its consent to such a proposed
assignment or subleasing if:
(a) the proposed assignee or subtenant is in active negotiation
with Landlord for premises in the Building (and adequate space
is available for such tenant in the Building) or is not of a
character consistent with the operation of a first class
office building (by way of example Landlord shall not be
deemed to be unreasonably withholding its consent to an
assignment or subleasing to any governmental or
quasi-governmental agency), or
(b) the proposed assignee or subtenant is not of good character
and reputation, or
35
(c) the proposed assignee or subtenant does not possess adequate
financial capability to perform the Tenant obligations as and
when due or required, or
(d) the assignee or subtenant proposes to use the Premises (or
part thereof) for a purpose other than the purpose for which
the Premises may be used as stated in Section 1.1 hereof, or
(e) the character of the business to be conducted or the proposed
use of the Premises by the proposed subtenant or assignee
shall (i) be likely to increase Landlord's Operating Expenses
beyond that which Landlord now incurs for use by Tenant; (ii)
be likely to increase the burden on elevators or other
Building systems or equipment over the burden permitted in
this Lease; or (iii) violate or be likely to violate any
provisions or restrictions contained herein relating to the
use or occupancy of the Premises, or
(f) there shall be existing an Event of Default (defined in
Section 7.1), or
(g) any part of the rent payable under the proposed assignment or
sublease shall be based in whole or in part on the income or
profits derived from the Premises or if any proposed
assignment or sublease shall potentially have any adverse
effect on the real estate investment trust qualification
requirements applicable to Landlord and its affiliates.
5.6.3 Tenant shall give Landlord notice of any proposed sublease or assignment,
and said notice shall specify the provisions of the proposed assignment or
subletting, including (a) the name and address of the proposed assignee or
subtenant, (b) in the case of a proposed assignment or subletting pursuant
to Section 5.6.2, such information as to the proposed assignee's or
proposed subtenant's net worth and financial capability and standing as
may reasonably be required for Landlord to make the determination referred
to in Section 5.6.2 above (provided, however, that Landlord shall hold
such information confidential having the right to release same to its
officers, accountants, attorneys and mortgage lenders on a confidential
basis), (c) all of the material terms and provisions upon which the
proposed assignment or subletting is to be made, (d) in the case of a
proposed assignment or subletting pursuant to Section 5.6.2, all other
information necessary to make the determination referred to in Section
5.6.2 above and (e) in the case of a proposed assignment or subletting
pursuant to Section 5.6.1 above, such information as may be reasonably
required by Landlord to determine that such proposed assignment or
subletting complies with the requirements of said Section 5.6.1.
Landlord shall respond to Tenant's request for consent within fifteen (15)
days after receipt thereof, either approving the proposed assignment or
sublease, rejecting the same or requesting additional information; it
being understood and agreed that Landlord's failure to timely respond
shall be deemed to be an approval of the proposed assignment or
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sublease. If Landlord shall consent to the proposed assignment or
subletting, as the case may be, then, in such event, Tenant may thereafter
sublease or assign pursuant to Tenant's notice, as given hereunder;
provided, however, that if such assignment or sublease shall not be
executed and delivered to Landlord within one hundred twenty (120) days
after the date of Landlord's consent, the consent shall be deemed null and
void and the provisions of Section 5.6.1.1 shall be applicable.
5.6.4 In addition, in the case of any assignment or subleasing as to which
Landlord may consent (other than an assignment or subletting permitted
under Section 5.6.1 hereof) such consent shall be upon the express and
further condition, covenant and agreement, and Tenant hereby covenants and
agrees that, in addition to the Annual Fixed Rent, Additional Rent and
other charges to be paid pursuant to this Lease, fifty percent (50%) of
the "Assignment/Sublease Profits" (hereinafter defined), if any, shall be
paid to Landlord. The "Assignment/Sublease Profits" shall be the excess,
if any, of (a) the "Assignment/Sublease Net Revenues" as hereinafter
defined over (b) the Annual Fixed Rent and Additional Rent and other
charges provided in this Lease (provided, however, that for the purpose of
calculating the Assignment/Sublease Profits in the case of a sublease,
appropriate proportions in the applicable Annual Fixed Rent, Additional
Rent and other charges under this Lease shall be made based on the
percentage of the Premises subleased and on the terms of the sublease).
The "Assignment/Sublease Net Revenues" shall be the fixed rent, additional
rent and all other charges and sums payable either initially or over the
term of the sublease or assignment plus all other profits and increases to
be derived by Tenant as a result of such subletting or assignment, less
the actual costs of Tenant incurred in such subleasing or assignment (the
definition of which shall include but not necessarily be limited to rent
concessions, brokerage commissions, alteration allowances and reasonable
attorneys fees), as set forth in a statement certified by an appropriate
officer of Tenant and delivered to Landlord within sixty (60) days of the
full execution of the sublease or assignment document.
All payments of the Assignment/Sublease Profits due Landlord shall be made
within ten (10) days of receipt of same by Tenant.
5.6.5 (A) It shall be a condition of the validity of any assignment or
subletting of right under Section 5.6.1 above, or consented to under
Section 5.6.2 above, that both Tenant and the assignee or sublessee
enter into a separate written instrument directly with Landlord in a
form and containing terms and provisions reasonably required by
Landlord, including, without limitation, the agreement of the assignee
or sublessee to be bound directly to Landlord for all the obligations
of the Tenant hereunder, including, without limitation, the obligation
(a) to pay the rent and other amounts provided for under this Lease
(but in the case of a partial subletting pursuant to Section 5.6.1,
such subtenant shall agree on a pro rata basis to be so bound) and (b)
to comply with the provisions of Sections 5.6 through 5.6.5 hereof.
Such assignment or subletting shall not relieve the Tenant named
herein of any of the obligations of the Tenant hereunder and Tenant
shall remain fully and primarily liable therefor and the liability of
Tenant and such assignee (or subtenant, as the
37
case may be) shall be joint and several. Further, and
notwithstanding the foregoing, the provisions hereof shall not
constitute a recognition of the assignment or the assignee
thereunder or the sublease or the subtenant thereunder, as the case
may be, and at Landlord's option, upon the termination of the Lease,
the assignment or sublease shall be terminated.
(B) As Additional Rent, Tenant shall reimburse Landlord promptly for
reasonable out of pocket legal and other expenses incurred by
Landlord in connection with any request by Tenant for consent to
assignment or subletting (such legal expenses not to exceed
$2,500.00 in connection with any single request for consent).
(C) If this Lease be assigned, or if the Premises or any part thereof be
sublet or occupied by anyone other than Tenant, Landlord may upon
prior notice to Tenant, at any time and from time to time following
the occurrence of an Event of Default hereunder, collect rent and
other charges from the assignee, sublessee or occupant and apply the
net amount collected to the rent and other charges herein reserved,
but no such assignment, subletting, occupancy or collection shall be
deemed a waiver of this covenant, or a waiver of the provisions of
Sections 5.6 through 5.6.5 hereof, or the acceptance of the
assignee, sublessee or occupant as a tenant or a release of Tenant
from the further performance by Tenant of covenants on the part of
Tenant herein contained, the Tenant herein named to remain primarily
liable under this Lease.
(D) The consent by Landlord to an assignment or subletting under any of
the provisions of Sections 5.6.1 or 5.6.2 shall in no way be
construed to relieve Tenant from obtaining the express consent in
writing of Landlord to any further assignment or subletting.
(E) On or after the occurrence and during the continuation of an "Event
of Default" (defined in Section 7.1), Landlord shall be entitled to
one hundred percent (100%) of any Assignment/Sublease Profits
(provided, however, that fifty percent (50%) of such
Assignment/Sublease Profits shall be credited against amounts due
and payable from Tenant on account of Annual Fixed Rent for such
period).
(F) In addition to the other requirements set forth in this Lease and
notwithstanding any other provision of this Lease, partial
sublettings of the Premises shall only be permitted under the
following terms and conditions: (i) the layout of both the subleased
premises and the remainder of the Premises must comply with
applicable laws, ordinances, rules and/or regulations and be
approved by Landlord, including, without limitation, all
requirements concerning access and egress, such approval not to be
unreasonably withheld, conditioned or delayed; (ii) in the event the
subleased premises are separately physically demised from the
remainder of the Premises, Tenant shall pay all costs of separately
physically demising the subleased premises; and (iii) there shall be
no more than seven (7) subleases in effect for the Premises at any
given time.
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5.7 INDEMNITY; INSURANCE. (A) To defend with counsel first approved by
Landlord (which approval shall not be unreasonably withheld or delayed),
save harmless, and indemnify Landlord from any liability for injury, loss,
accident or damage to any person or property, and from any claims,
actions, proceedings and expenses and costs in connection therewith
(including without limitation reasonable counsel fees) (i) arising from or
claimed to have arisen from (a) the omission, fault, willful act,
negligence or other misconduct of Tenant or Tenant's contractors,
licensees, invitees, agents, servants, independent contractors or
employees or (b) any use made or thing done or occurring on the Premises
not due to the omission, fault, willful act, negligence or other
misconduct of Landlord, or (ii) resulting from the failure of Tenant to
perform and discharge its covenants and obligations under this Lease.
(B) To maintain commercial general liability insurance or comprehensive
general liability insurance written on an occurrence basis with a broad
form comprehensive liability endorsement covering the Premises insuring
Landlord and Landlord's managing agent (and such persons as are in privity
of estate with Landlord and Landlord's managing agent as may be set out in
notice from time to time) as additional insureds as well as Tenant with
limits which (i) may be maintained via an umbrella policy and (ii) shall,
at the commencement of the Term, be at least equal to those stated in
Section 1.1 and from time to time during the Term shall be for such higher
limits, if any, as are customarily carried in Greater Boston with respect
to similar properties or which may reasonably be required by Landlord, and
worker's compensation insurance with statutory limits covering all of
Tenant's employees working in the Premises, and to deposit with Landlord
on or before the Commencement Date and concurrent with all renewals
thereof, certificates for such insurance bearing the endorsement that the
policies will not be canceled until after thirty (30) days' written notice
to Landlord. All insurance required to be maintained by Tenant pursuant to
this Lease shall be maintained with responsible companies qualified to do
business, and in good standing, in the Commonwealth of Massachusetts and
which have a rating of at least "A-" and are within a financial size
category of not less than "Class VIII" in the most current Best's Key
Rating Guide or such similar rating as may be reasonably selected by
Landlord if such Guide is no longer published. Any and all such insurance
(x) may be maintained under a blanket policy affecting other properties of
Tenant and (y) may be written with deductibles as determined by Tenant
and, as affect the Premises, reasonably approved by Landlord.
5.8 PERSONAL PROPERTY AT TENANT'S RISK. That all of the furnishings, fixtures,
equipment, effects and property of every kind, nature and description of
Tenant and of all persons claiming by, through or under Tenant which,
during the continuance of this Lease or any occupancy of the Premises by
Tenant or anyone claiming under Tenant, may be on the Premises or
elsewhere in the Building or on the Site, shall be at the sole risk and
hazard of Tenant, and if the whole or any part thereof shall be destroyed
or damaged by fire, water or otherwise, or by the leakage or bursting of
water pipes, steam pipes, or other pipes, by theft or from any other
cause, no part of said loss or damage is to be charged to or be borne by
Landlord, except that Landlord shall in no event be indemnified or held
39
harmless or exonerated from any liability to Tenant or to any other
person, for any injury, loss, damage or liability to the extent such
indemnity, hold harmless or exoneration is prohibited by law or to the
extent that such loss, damage or liability is caused by the negligence or
willful misconduct of Landlord. Further, Tenant, at Tenant's expense,
shall maintain at all times during the Term of this Lease insurance
against loss or damage covered by so-called "all risk" type insurance
coverage with respect to Tenant's fixtures, equipment, goods, wares and
merchandise, tenant improvements made by or paid for by Tenant, and other
property of Tenant (collectively "Tenant's Property"). Such insurance
shall be in an amount at least equal to the full replacement cost of
Tenant's Property.
5.9 RIGHT OF ENTRY. To permit Landlord and its agents to examine the Premises
at reasonable times and upon reasonable prior notice (except in the event
of an emergency) and, if Landlord shall so elect, to make any repairs or
replacements Landlord may deem necessary; to remove, at Tenant's expense,
any alterations, addition, signs, curtains, blinds, shades, awnings,
aerials, flagpoles, or the like not consented to in writing; and to show
the Premises to prospective tenants during the nine (9) months preceding
expiration of the Term and to prospective purchasers and mortgagees at all
reasonable times. In connection with its exercise of the rights set forth
herein, Landlord shall use reasonable efforts to minimize interference
with Tenant's business operations at the Premises to the extent reasonably
practicable under the circumstances.
5.10 FLOOR LOAD; PREVENTION OF VIBRATION AND NOISE. Not to place a load upon
the Premises exceeding an average rate of 70 pounds of live load per
square foot of floor area (partitions shall be considered as part of the
live load); and not to move any safe, vault or other heavy equipment in,
about or out of the Premises except in such manner and at such time as
Landlord shall in each instance authorize; Tenant's business machines and
mechanical equipment which cause vibration or noise that may be
transmitted to the Building structure or to any other space in the
Building shall be so installed, maintained and used by Tenant so as to
eliminate such vibration or noise.
5.11 PERSONAL PROPERTY TAXES. To pay promptly when due all taxes which may be
imposed upon Tenant's Property in the Premises to whomever assessed.
5.12 COMPLIANCE WITH LAWS. To comply with all applicable Legal Requirements now
or hereafter in force which shall impose a duty on Landlord or Tenant
relating to or as a result of the use or occupancy of the Premises;
provided that Tenant shall not be required to make any alterations or
additions to the structure, roof, exterior and load bearing walls,
foundation, structural floor slabs and other structural elements of the
Building unless the same are required by such Legal Requirements as a
result of or in connection with Tenant's use or occupancy of the Premises
beyond normal use of space of this kind. Tenant shall promptly pay all
fines, penalties and damages that may arise out of or be imposed because
of its failure to comply with the provisions of this Section 5.12.
Notwithstanding the foregoing, except to the extent caused by Tenant or
its employees, agents or contractors, Tenant shall not be obligated to
correct any violations of laws,
40
regulations or code existing in the Premises as of the Commencement Date
(which such violations shall be remedied by Landlord).
5.13 PAYMENT OF LITIGATION EXPENSES. As Additional Rent, to pay all reasonable
costs, counsel and other fees incurred by Landlord in connection with the
successful enforcement by Landlord of any obligations of Tenant under this
Lease or in connection with any bankruptcy case involving Tenant or any
guarantor (Landlord hereby similarly agreeing to pay all reasonable costs,
counsel and other fees incurred by Tenant in connection with the
successful enforcement by Tenant of any obligations of Landlord under this
Lease).
ARTICLE VI
CASUALTY AND TAKING
6.0 LANDLORD'S RESTORATION ESTIMATE. In case during the Lease Term the
Building or Site are damaged by fire or other casualty, Landlord shall
within forty-five (45) days after the occurrence thereof notify Tenant in
writing of Landlord's reasonable estimate of the length of time necessary
to repair or restore such fire or casualty damage from the time that
repair work would commence ("Landlord's Restoration Estimate").
6.1 DAMAGE RESULTING FROM CASUALTY. In case during the Lease Term the Building
or the Site are damaged by fire or casualty, and if according to
Landlord's Restoration Estimate such fire or casualty damage cannot, in
the ordinary course, reasonably be expected to be repaired within three
hundred (300) days from the time that repair work would commence, either
party may, at its election, terminate this Lease by notice given to the
other party within sixty (60) days after the date of such fire or other
casualty, specifying the effective date of termination. The effective date
of termination specified by the terminating party shall not be less than
thirty (30) days nor more than forty-five (45) days after the date of
notice of such termination.
In case during the last year of the Lease Term, the Premises are damaged
by fire or casualty and such fire or casualty damage cannot, in the
ordinary course, reasonably be expected to be repaired within the lesser
of (x) one hundred fifty (150) days from the time that repair work would
commence, or (y) the number of days then remaining in the Lease Term,
Tenant may, at its election, terminate this Lease by notice given to
Landlord within sixty (60) days after the date of such fire or other
casualty, specifying the effective date of termination. The effective date
of termination specified by Tenant shall be not less than thirty (30) days
nor more than forty-five (45) days after the date of notice of such
termination.
Unless terminated pursuant to the foregoing provisions, this Lease shall
remain in full force and effect following any such damage subject,
however, to the following provisions.
41
If the Building or the Site or any part thereof are damaged by fire or
other casualty and this Lease is not so terminated, or Landlord or Tenant
have no right to terminate this Lease, and in any such case the holder of
any mortgage which includes the Building as a part of the mortgaged
premises or any ground lessor of any ground lease which includes the Site
as part of the demised premises allows the net insurance proceeds to be
applied to the restoration of the Building (and/or the Site), Landlord
promptly after such damage and the determination of the net amount of
insurance proceeds available shall use due diligence to restore the
Premises and the Building in the event of damage thereto (excluding
Tenant's Property) into proper condition for use and occupation and a just
proportion of the Annual Fixed Rent, Tenant's share of Operating Costs and
Tenant's share of real estate taxes according to the nature and extent of
the injury to the Premises shall be abated until the Premises shall have
been put by Landlord substantially into such condition except for punch
list items and long lead items of such a nature that Tenant can reasonably
use the Premises for the Permitted Use notwithstanding the fact that such
long lead items have not been completed. Notwithstanding anything herein
contained to the contrary, Landlord shall not be obligated to expend for
such repair and restoration any amount in excess of the net insurance
proceeds.
Unless such restoration is completed within ten (10) months from the date
of the casualty or taking, such period to be subject, however, to
extension where the delay in completion of such work is due to causes
beyond Landlord's reasonable control (but in no event beyond twelve (12)
months from the date of the casualty or taking), Tenant, as its sole and
exclusive remedy, shall have the right to terminate this Lease at any time
after the expiration of such ten-month (as extended) period until the
restoration is substantially completed, such termination to take effect as
of the thirtieth (30th) day after the date of receipt by Landlord of
Tenant's notice, with the same force and effect as if such date were the
date originally established as the expiration date hereof unless, within
thirty (30) days after Landlord's receipt of Tenant's notice, such
restoration is substantially completed, in which case Tenant's notice of
termination shall be of no force and effect and this Lease and the Lease
Term shall continue in full force and effect.
6.2 UNINSURED CASUALTY. Notwithstanding anything to the contrary contained in
this Lease, if the Building or the Premises shall be substantially damaged
by fire or casualty as the result of a risk not covered by the forms of
casualty insurance at the time maintained by Landlord (or required to be
maintained by Landlord hereunder) and such fire or casualty damage cannot,
in the ordinary course, reasonably be expected to be repaired within
ninety (90) days from the time that repair work would commence, Landlord
may, at its election, terminate the Term of this Lease by notice to the
Tenant given within sixty (60) days after such loss. If Landlord shall
give such notice, then this Lease shall terminate as of the date of such
notice with the same force and effect as if such date were the date
originally established as the expiration date hereof.
6.3 RIGHTS OF TERMINATION FOR TAKING. If the entire Building, or such portion
of the Premises as to render the balance (if reconstructed to the maximum
extent practicable
42
in the circumstances) unsuitable for Tenant's purposes, shall be taken by
condemnation or right of eminent domain, Landlord or Tenant shall have the
right to terminate this Lease by notice to the other of its desire to do
so, provided that such notice is given not later than thirty (30) days
after Tenant has been deprived of possession. If either party shall give
such notice, then this Lease shall terminate as of the date of such notice
with the same force and effect as if such date were the date originally
established as the expiration date hereof.
Further, if so much of the Building shall be so taken that continued
operation of the Building would be uneconomic as a result of the taking,
Landlord shall have the right to terminate this Lease by giving notice to
Tenant of Landlord's desire to do so not later than thirty (30) days after
Tenant has been deprived of possession of the Premises (or such portion
thereof as may be taken). If Landlord shall give such notice, then this
Lease shall terminate as of the date of such notice with the same force
and effect as if such date were the date originally established as the
expiration date hereof.
Should any part of the Premises be so taken or condemned during the Lease
Term hereof, and should this Lease not be terminated in accordance with
the foregoing provisions, and the holder of any mortgage which includes
the Premises as part of the mortgaged premises or any ground lessor of any
ground lease which includes the Site as part of the demised premises
allows the net condemnation proceeds to be applied to the restoration of
the Building, Landlord agrees that after the determination of the net
amount of condemnation proceeds available to Landlord, Landlord shall use
due diligence to put what may remain of the Premises into proper condition
for use and occupation as nearly like the condition of the Premises prior
to such taking as shall be practicable (excluding Tenant's Property).
Notwithstanding the foregoing, Landlord shall not be obligated to expend
for such repair and restoration any amount in excess of the net
condemnation proceeds made available to it.
If the Premises shall be affected by any exercise of the power of eminent
domain, then the Annual Fixed Rent, Tenant's share of operating costs and
Tenant's share of real estate taxes shall be justly and equitably abated
and reduced according to the nature and extent of the loss of use thereof
suffered by Tenant; and in case of a taking which permanently reduces the
Rentable Floor Area of the Premises, a just proportion of the Annual Fixed
Rent, Tenant's share of operating costs and Tenant's share of real estate
taxes shall be abated for the remainder of the Lease Term.
6.4 AWARD. Landlord shall have and hereby reserves to itself any and all
rights to receive awards made for damages to the Premises, the Buildings,
the Complex and the Site and the leasehold hereby created, or any one or
more of them, accruing by reason of exercise of eminent domain or by
reason of anything lawfully done in pursuance of public or other
authority. Tenant hereby grants, releases and assigns to Landlord all
Tenant's rights to such awards, and covenants to execute and deliver such
further assignments and assurances thereof as Landlord may from time to
time request, and if Tenant shall fail to execute and deliver the same
within fifteen (15) days after notice from Landlord, Tenant
43
hereby covenants and agrees that Landlord shall be irrevocably designated
and appointed as its attorney-in-fact to execute and deliver in Tenant's
name and behalf all such further assignments thereof which conform with
the provisions hereof.
Nothing contained herein shall be construed to prevent Tenant from
prosecuting in any condemnation proceeding a claim for the value of any of
Tenant's usual trade fixtures installed in the Premises by Tenant at
Tenant's expense and for relocation and moving expenses, provided that
such action and any resulting award shall not affect or diminish the
amount of compensation otherwise recoverable by Landlord from the taking
authority.
ARTICLE VII
DEFAULT
7.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of this Lease
any one or more of the following events (herein sometimes called an "Event
of Default") shall occur:
(i) Tenant shall fail to pay the fixed rent, Additional Rent or
other charges for which provision is made herein on or before
the date on which the same become due and payable, and the
same continues for ten (10) days after written notice from
Landlord thereof; or
(ii) Landlord having rightfully given the notice specified in
subdivision (a) above twice in any calendar year, Tenant shall
thereafter in the same calendar year fail to pay the fixed
rent, Additional Rent or other charges on or before the date
on which the same become due and payable; or
(iii) Tenant shall assign its interest in this Lease or sublet any
portion of the Premises in violation of the requirements of
Sections 5.6 through 5.6.5 of this Lease; or
(iv) Tenant shall neglect or fail to perform or observe any other
covenant herein contained on Tenant's part to be performed or
observed and Tenant shall fail to remedy the same within
thirty (30) days after written notice to Tenant specifying
such neglect or failure, or if such failure is of such a
nature that Tenant cannot reasonably remedy the same within
such thirty (30) day period, Tenant shall fail to commence
promptly to remedy the same and to prosecute such remedy to
completion with diligence and continuity; or
(v) Tenant's leasehold interest in the Premises shall be taken on
execution or by other process of law directed against Tenant;
or
44
(vi) Tenant shall make an assignment for the benefit of creditors
or shall file a voluntary petition in bankruptcy or shall be
adjudicated bankrupt or insolvent, or shall file any petition
or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or
similar relief for itself under any present or future
Federal, State or other statute, law or regulation for the
relief of debtors, or shall seek or consent to or acquiesce
in the appointment of any trustee, receiver or liquidator of
Tenant or of all or any substantial part of its properties,
or shall admit in writing its inability to pay its debts
generally as they become due; or
(vii) A petition shall be filed against Tenant in bankruptcy or
under any other law seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or
similar relief under any present or future Federal, State or
other statute, law or regulation and shall remain undismissed
or unstayed for an aggregate of ninety (90) days (whether or
not consecutive), or if any debtor in possession (whether or
not Tenant) trustee, receiver or liquidator of Tenant or of
all or any substantial part of its properties or of the
Premises shall be appointed without the consent or
acquiescence of Tenant and such appointment shall remain
unvacated or unstayed for an aggregate of ninety (90) days
(whether or not consecutive) then, and in any of said cases
(notwithstanding any license of a former breach of covenant
or waiver of the benefit hereof or consent in a former
instance), Landlord lawfully may, immediately or at any time
thereafter, and without demand or further notice terminate
this Lease by notice to Tenant, specifying a date not less
than ten (10) business days after the giving of such notice
on which this Lease shall terminate, and this Lease shall
come to an end on the date specified therein as fully and
completely as if such date were the date herein originally
fixed for the expiration of the Lease Term (Tenant hereby
waiving any rights of redemption), and Tenant will then quit
and surrender the Premises to Landlord, but Tenant shall
remain liable as hereinafter provided; or
(viii) Tenant shall abandon the Premises in such a manner as to
create a hazard or nuisance in, or diminution in value to,
the Premises or the Building.
(b) If this Lease shall have been terminated as provided in this
Article, then Landlord may, without notice, re-enter the Premises,
either by force, summary proceedings, ejectment or otherwise, and
remove and dispossess Tenant and all other persons and any and all
property from the same, as if this Lease had not been made, and
Tenant hereby waives the service of notice of intention to re-enter
or to institute legal proceedings to that end.
(c) In the event that this Lease is terminated under any of the
provisions contained in Section 7.1 (a) or shall be otherwise
terminated by breach of any obligation of Tenant, Tenant covenants
and agrees forthwith to pay and be liable for, on the
45
days originally fixed herein for the payment thereof, amounts equal
to the several installments of rent and other charges reserved as
they would, under the terms of this Lease, become due if this Lease
had not been terminated or if Landlord had not entered or
re-entered, as aforesaid, and whether the Premises be relet or
remain vacant, in whole or in part, or for a period less than the
remainder of the Term, and for the whole thereof, but in the event
the Premises be relet by Landlord, Tenant shall be entitled to a
credit in the net amount of rent and other charges received by
Landlord in reletting, after deduction of all reasonable expenses
incurred in reletting the Premises (including, without limitation,
remodeling costs, brokerage fees and the like), and in collecting
the rent in connection therewith, in the following manner:
Amounts received by Landlord after reletting shall first be applied
against such Landlord's expenses, until the same are recovered, and
until such recovery, Tenant shall pay, as of each day when a payment
would fall due under this Lease, the amount which Tenant is
obligated to pay under the terms of this Lease (Tenant's liability
prior to any such reletting and such recovery not in any way to be
diminished as a result of the fact that such reletting might be for
a rent higher than the rent provided for in this Lease); when and if
such expenses have been completely recovered, the amounts received
from reletting by Landlord as have not previously been applied shall
be credited against Tenant's obligations as of each day when a
payment would fall due under this Lease, and only the net amount
thereof shall be payable by Tenant. Further, amounts received by
Landlord from such reletting for any period during what would have
been the Term of this Lease had the same not been terminated shall
be credited only against obligations of Tenant allocable to such
period, and shall not be credited against obligations of Tenant
hereunder accruing subsequent or prior to such period; nor shall any
credit of any kind be due for any period after the date when the
term of this Lease is scheduled to expire according to its terms.
(d) (i) At any time after such termination and whether or not Landlord
shall have collected any damages as aforesaid, as liquidated final
damages and in lieu of all other damages beyond the date of notice
from Landlord to Tenant, at Landlord's election, Tenant shall pay to
Landlord such a sum as at the time of the giving of such notice
represents the amount of the excess, if any, of the total rent and
other benefits which would have accrued to Landlord under this Lease
from the date of such notice for what would be the then unexpired
Lease Term if the Lease terms had been fully complied with by Tenant
over and above the then cash rental value (in advance) of the
Premises for the balance of the Lease Term, discounted to present
value at a discount rate equal to the then-prevailing prime rate in
Boston as set by Fleet National Bank (or its successor).
(d) (ii) For the purposes of this Article, if Landlord elects to
require Tenant to pay damages in accordance with the immediately
preceding paragraph, the total rent shall be computed by assuming
that Tenant's share of excess taxes, Tenant's share
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of excess operating costs and Tenant's share of excess electrical
costs would be, for the balance of the unexpired Term from the date
of such notice, the amount thereof (if any) for the immediately
preceding annual period payable by Tenant to Landlord.
(e) In case of any Event of Default, re-entry, dispossession by summary
proceedings or otherwise, Landlord may (i) re-let the Premises or
any part or parts thereof, either in the name of Landlord or
otherwise, for a term or terms which may at Landlord's option be
equal to or less than or exceed the period which would otherwise
have constituted the balance of the Term of this Lease and may grant
concessions, abatements or free rent to the extent that Landlord
considers advisable or necessary to re-let the same and (ii) may
make such alterations and repairs in the Premises as Landlord in its
sole judgment considers advisable or necessary for the purpose of
reletting the Premises; and the making of such alterations and
repairs shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be
liable in any way whatsoever for failure to re-let the Premises, or,
in the event that the Premises are re-let, for failure to collect
the rent under re-letting. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or future
laws in the event of Tenant being evicted or dispossessed, or in the
event of Landlord obtaining possession of the Premises, by reason of
the violation by Tenant of any of the covenants and conditions of
this Lease.
(f) The specified remedies to which Landlord may resort hereunder are
not intended to be exclusive of any remedies or means of redress to
which Landlord may at any time be entitled lawfully, and Landlord
may invoke any remedy (including the remedy of specific performance)
allowed at law or in equity as if specific remedies were not herein
provided for. Further, nothing contained in this Lease shall limit
or prejudice the right of Landlord to prove for and obtain in
proceedings for bankruptcy or insolvency by reason of the
termination of this Lease, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and governing
the proceedings in which, the damages are to be proved, whether or
not the amount be greater, equal to, or less than the amount of the
loss or damages referred to above.
(g) In lieu of any other damages or indemnity and in lieu of the
recovery by Landlord of all sums payable under all the foregoing
provisions of this Section 7.1, Landlord may elect to collect from
Tenant, by notice to Tenant, at any time after this Lease is
terminated under any of the provisions contained in this Article VII
or otherwise terminated by breach of any obligation of Tenant and
before full recovery under such foregoing provisions, and Tenant
shall thereupon pay, as liquidated damages, an amount equal to the
sum of (x) the Annual Fixed Rent and all Additional Rent payable for
the lesser of (i) the twelve (12) months ended next prior to such
termination or (ii) the number of months then remaining in the Term
of this Lease, plus (y) the amount of Annual Fixed Rent and
Additional Rent of
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any kind accrued and unpaid at the time of such election plus
any and all expenses which the Landlord may have incurred for
and with respect of the collection of any of such rent.
7.2 LANDLORD'S DEFAULT. Landlord shall in no event be in default in the
performance of any of Landlord's obligations hereunder unless and until
Landlord shall have failed to perform such obligations within thirty
(30) days, or such additional time as is reasonably required to correct
any such default, after notice by Tenant to Landlord properly
specifying wherein Landlord has failed to perform any such obligation.
ARTICLE VIII
8.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will not
do or permit anything to be done in or upon the Premises, or bring in
anything or keep anything therein, which shall increase the rate of
insurance on the Premises or on the Building above the standard rate
applicable to premises being occupied for the use to which Tenant has
agreed to devote the Premises; and Tenant further agrees that, in the
event that Tenant shall do any of the foregoing, Tenant will promptly
pay to Landlord, on demand, any such increase resulting therefrom,
which shall be due and payable as Additional Rent thereunder.
8.2 WAIVER. Failure on the part of Landlord or Tenant to complain of any
action or non-action on the part of the other, no matter how long the
same may continue, shall never be a waiver by Tenant or Landlord,
respectively, of any of its rights hereunder. Further, no waiver at any
time of any of the provisions hereof by Landlord or Tenant shall be
construed as a waiver of any of the other provisions hereof, and a
waiver at any time of any of the provisions hereof shall not be
construed as a waiver at any subsequent time of the same provisions.
The consent or approval of Landlord or Tenant to or of any action by
the other requiring such consent or approval shall not be construed to
waive or render unnecessary Landlord's or Tenant's consent or approval
to or of subsequent similar act by the other.
No payment by Tenant, or acceptance by Landlord, of a lesser amount
than shall be due from Tenant to Landlord shall be treated otherwise
than as a payment on account. The acceptance by Landlord of a check for
a lesser amount with an endorsement or statement thereon, or upon any
letter accompanying such check, that such lesser amount is payment in
full, shall be given no effect, and Landlord may accept such check
without prejudice to any other rights or remedies which Landlord may
have against Tenant.
8.3 CUMULATIVE REMEDIES. Except as expressly provided in this Lease, the
specific remedies to which either party may resort under the terms of
this Lease are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which any such party may be
lawfully entitled in case of any breach or threatened breach by the
other party of any provisions of this Lease. In addition to the other
remedies provided in this Lease, the parties shall be entitled to the
restraint by injunction of the violation or
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attempted or threatened violation of any of the covenants, conditions
or provisions of this Lease or to a decree compelling specific
performance of any such covenants, conditions or provisions.
8.4 QUIET ENJOYMENT. Tenant, subject to the terms and provisions of this
Lease on payment of the rent and observing, keeping and performing all
of the terms and provisions of this Lease on Tenant's part to be
observed, kept and performed, shall lawfully, peaceably and quietly
have, hold, occupy and enjoy the Premises during the Term (exclusive of
any period during which Tenant is holding over after the expiration or
termination of this Lease without the consent of Landlord), without
hindrance or ejection by any persons lawfully claiming to have title to
the Premises superior to Tenant, subject, however, to the terms of this
Lease; the foregoing covenant of quiet enjoyment is in lieu of any
other covenant, express or implied; and it is understood and agreed
that this covenant and any and all other covenants of Landlord
contained in this Lease shall be binding upon Landlord and Landlord's
successors, including ground or master lessees, only with respect to
breaches occurring during Landlord's or Landlord's successors'
respective ownership of Landlord's interest hereunder, as the case may
be.
Further, Tenant specifically agrees to look solely to Landlord's then
equity interest in the Building (including proceeds from sale,
financing or insurance) at the time owned, or in which Landlord holds
an interest as ground lessee, for recovery of any judgment from
Landlord; it being specifically agreed that neither Landlord (original
or successor), nor any beneficiary of any trust of which any person
holding Landlord's interest is trustee, nor any member, manager,
partner, director or stockholder, nor Landlord's managing agent, shall
ever be personally liable for any such judgment, or for the payment of
any monetary obligation to Tenant. The provision contained in the
foregoing sentence is not intended to, and shall not, limit any right
that Tenant might otherwise have to obtain injunctive relief against
Landlord or Landlord's successors in interest, or any action not
involving the personal liability of Landlord (original or successor),
any successor trustee to the persons named herein as Landlord, or any
beneficiary of any trust of which any person holding Landlord's
interest is trustee, or of any manager, member, partner, director or
stockholder of Landlord or of Landlord's managing agent to respond in
monetary damages from Landlord's assets other than Landlord's equity
interest aforesaid in the Building. In no event shall Landlord ever be
liable to Tenant for any indirect or consequential damages or loss of
profits or the like.
8.5 NOTICE TO MORTGAGEE AND GROUND LESSOR. After receiving notice from any
person, firm or other entity that it holds a mortgage which includes
the Premises as part of the mortgaged premises, or that it is the
ground lessor under a lease with Landlord, as ground lessee, which
includes the Premises as a part of the demised premises, no default
notice from Tenant to Landlord shall be effective unless and until a
copy of the same is given to such holder or ground lessor, and the
curing of any of Landlord's defaults by such holder or ground lessor
within a reasonable time thereafter (not to exceed sixty (60) days or
such shorter time period as may be agreed upon by Tenant and such
mortgagee or ground lessor in a subordination, non-disturbance and
attornment agreement) shall be
49
treated as performance by Landlord. For the purposes of this Section
8.5 or Section 8.15, the term "mortgage" includes a mortgage on a
leasehold interest of Landlord (but not one on Tenant's leasehold
interest).
8.6 ASSIGNMENT OF RENTS. With reference to any assignment by Landlord of
Landlord's interest in this Lease, or the rents payable hereunder,
conditional in nature or otherwise, which assignment is made to the
holder of a mortgage or ground lease on property which includes the
Premises, Tenant agrees:
(a) That the execution thereof by Landlord, and the
acceptance thereof by the holder of such mortgage or
the ground lessor, shall never be treated as an
assumption by such holder or ground lessor of any of
the obligations of Landlord hereunder, unless such
holder, or ground lessor, shall, by notice sent to
Tenant, specifically otherwise elect; and
(b) That, except as aforesaid, such holder or ground
lessor shall be treated as having assumed Landlord's
obligations hereunder only upon foreclosure of such
holder's mortgage and the taking of possession of the
Premises, or, in the case of a ground lessor, the
assumption of Landlord's position hereunder by such
ground lessor.
In no event shall the acquisition of title to the
Building and the land on which the same is located by
a purchaser which, simultaneously therewith, leases
the entire Building or such land back to the seller
thereof be treated as an assumption by such
purchaser-lessor, by operation of law or otherwise,
of Landlord's obligations hereunder, but Tenant shall
look solely to such seller-lessee, and its successors
from time to time in title, for performance of
Landlord's obligations hereunder subject to the
provisions of Section 8.4 hereof. In any such event,
this Lease shall be subject and subordinate to the
lease to such purchaser provided that such purchaser
agrees to recognize the right of Tenant to use and
occupy the Premises upon the payment of rent and
other charges payable by Tenant under this Lease and
the performance by Tenant of Tenant's obligations
hereunder and provided that Tenant agrees to attorn
to such purchaser. For all purposes, such
seller-lessee, and its successors in title, shall be
the landlord hereunder unless and until Landlord's
position shall have been assumed by such
purchaser-lessor.
8.7 SURRENDER. No act or thing done by Landlord during the Lease Term shall
be deemed an acceptance of a surrender of the Premises, and no
agreement to accept such surrender shall be valid, unless in writing
signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of the Premises prior to the
termination of this Lease. The delivery of keys to any employee of
Landlord or of Landlord's agents shall not operate as a termination of
the Lease or a surrender of the Premises.
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8.8 BROKERAGE. (A) Tenant warrants and represents that Tenant has not dealt
with any broker in connection with the consummation of this Lease other
than the broker, person or firm, if any, designated in Section 1.1
hereof (the "Brokers"); and in the event any claim is made against the
Landlord relative to dealings by Tenant with brokers other than the
Brokers, Tenant shall defend the claim against Landlord with counsel of
Tenant's selection first approved by Landlord (which approval will not
be unreasonably withheld) and save harmless and indemnify Landlord on
account of loss, cost or damage which may arise by reason of such
claim.
(B) Landlord warrants and represents that Landlord has not dealt with
any broker in connection with the consummation of this Lease other than
the Brokers; and in the event any claim is made against the Tenant
relative to dealings by Landlord with brokers other than the Brokers,
Landlord shall defend the claim against Tenant with counsel of
Landlord's selection and save harmless and indemnify Tenant on account
of loss, cost or damage which may arise by reason of such claim.
Landlord agrees that it shall be solely responsible for the payment of
brokerage commissions to the Brokers for the Original Term of this
Lease and, to the extent any such commission is due and payable in
connection therewith, for the Extended Term (if exercised).
8.9 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease, or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
8.10 PROVISIONS BINDING, ETC. The obligations of this Lease shall run with
the land, and except as herein otherwise provided, the terms hereof
shall be binding upon and shall inure to the benefit of the successors
and assigns, respectively, of Landlord and Tenant and, if Tenant shall
be an individual, upon and to his heirs, executors, administrators,
successors and assigns. Each term and each provision of this Lease to
be performed by Tenant shall be construed to be both a covenant and a
condition. The reference contained to successors and assigns of Tenant
is not intended to constitute a consent to subletting or assignment by
Tenant.
8.11 RECORDING. Tenant agrees not to record the within Lease, but each party
hereto agrees, on the request of the other, to execute a so-called
Notice of Lease or short form lease in form recordable and complying
with applicable law and reasonably satisfactory to both Landlord's and
Tenant's attorneys. In no event shall such document set forth rent or
other charges payable by Tenant under this Lease; and any such document
shall expressly state that it is executed pursuant to the provisions
contained in this Lease, and is not intended to vary the terms and
conditions of this Lease.
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8.12 NOTICES. Whenever, by the terms of this Lease, notice shall or may be
given either to Landlord or to Tenant, such notice shall be in writing
and shall be sent by registered or certified mail postage prepaid:
If intended for Landlord, addressed to Landlord at the address set
forth on the first page of this Lease (or to such other address or
addresses as may from time to time hereafter be designated by Landlord
by like notice) with a copy to Landlord, Attention: General Counsel.
If intended for Tenant, addressed to Tenant at the address set forth on
the second page of this Lease except that from and after the
Commencement Date the address of Tenant shall be the Premises (or to
such other address or addresses as may from time to time hereafter be
designated by Tenant by like notice), with a courtesy copy to Xxxxxxxx
X. Xxxxx, Esq. at Xxxxxxxx, Xxxxxxx & Xxxxxxx, P.C., 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
Except as otherwise provided herein, all such notices shall be
effective when received; provided, that (i) if receipt is refused,
notice shall be effective upon the first occasion that such receipt is
refused or (ii) if the notice is unable to be delivered due to a change
of address of which no notice was given, notice shall be effective upon
the date such delivery was attempted.
Where provision is made for the attention of an individual or
department, the notice shall be effective only if the wrapper in which
such notice is sent is addressed to the attention of such individual or
department.
Any notice given by an attorney on behalf of Landlord or Tenant or by
Landlord's managing agent shall be considered as given by Landlord or
Tenant, as appropriate, and shall be fully effective.
Time is of the essence with respect to any and all notices and periods
for giving notice or taking any action thereto under this Lease.
8.13 WHEN LEASE BECOMES BINDING. Employees or agents of Landlord have no
authority to make or agree to make a lease or any other agreement or
undertaking in connection herewith. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall
become effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. All negotiations, considerations,
representations and understandings between Landlord and Tenant are
incorporated herein and may be modified or altered only by written
agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.
8.14 SECTION HEADINGS. The titles of the Articles throughout this Lease are
for convenience and reference only, and the words contained therein
shall in no way be held
52
to explain, modify, amplify or aid in the interpretation, construction
or meaning of the provisions of this Lease.
8.15 RIGHTS OF MORTGAGEE. This Lease shall be subject and subordinate to any
mortgage now or hereafter on the Site or the Building, or both, and to
each advance made or hereafter to be made under any mortgage, and to
all renewals, modifications, consolidations, replacements and
extensions thereof and all substitutions therefor provided that the
holder of such mortgage agrees to recognize the rights of Tenant under
this Lease (including the right to use and occupy the Premises) upon
the payment of rent and other charges payable by Tenant under this
Lease and the performance by Tenant of Tenant's obligations hereunder.
In confirmation of such subordination and recognition, Tenant shall
execute and deliver promptly such instruments of subordination and
recognition as such mortgagee may reasonably request. Landlord agrees
to use reasonable efforts to obtain a subordination, non-disturbance
and attornment agreement from the current mortgagee of the Site. In the
event that any mortgagee or its respective successor in title shall
succeed to the interest of Landlord, then, this Lease shall
nevertheless continue in full force and effect and Tenant shall and
does hereby agree to attorn to such mortgagee or successor and to
recognize such mortgagee or successor as its landlord provided that
such mortgagee or successor agrees to recognize the rights of Tenant
under this Lease (including the right to use and occupy the Premises)
upon the payment of rent and other charges payable by Tenant under this
Lease and the performance by Tenant of Tenant's obligations hereunder.
If any holder of a mortgage which includes the Premises, executed and
recorded prior to the date of this Lease, shall so elect, this Lease
and the rights of Tenant hereunder, shall be superior in right to the
rights of such holder, with the same force and effect as if this Lease
had been executed, delivered and recorded, or a statutory Notice hereof
recorded, prior to the execution, delivery and recording of any such
mortgage. The election of any such holder shall become effective upon
either notice from such holder to Tenant in the same fashion as notices
from Landlord to Tenant are to be given hereunder or by the recording
in the appropriate registry or recorder's office of an instrument in
which such holder subordinates its rights under such mortgage to this
Lease.
If in connection with obtaining financing a bank, insurance company,
pension trust or other institutional lender shall request reasonable
modifications in this Lease as a condition to such financing, Tenant
will not unreasonably withhold, delay or condition its consent thereto,
provided that such modifications do not increase the monetary
obligations of Tenant hereunder or materially adversely affect the
leasehold interest hereby created.
8.16 STATUS REPORTS AND FINANCIAL STATEMENTS. Recognizing that Landlord may
find it necessary to establish to third parties, such as accountants,
banks, potential or existing mortgagees, potential purchasers or the
like, the then current status of performance hereunder, Tenant, on the
request of Landlord made from time to time, will promptly furnish to
Landlord, or any existing or potential holder of any mortgage
encumbering the Premises, the Building, the Site and/or the Complex or
any potential
53
purchaser of the Premises, the Building, the Site and/or the Complex,
(each an "Interested Party"), a statement of the status of any matter
pertaining to this Lease, including, without limitation,
acknowledgments that (or the extent to which) each party is in
compliance with its obligations under the terms of this Lease. In
addition, Tenant shall deliver to Landlord, or any Interested Party
designated by Landlord, financial statements of Tenant and any
guarantor of Tenant's obligations under this Lease, as reasonably
requested by Landlord no more frequently than once during any twelve
(12) month period, including, but not limited to financial statements
for the past three (3) years (provided, however, that the provisions of
this sentence shall be inapplicable for so long as Tenant is a public
company whose stock is traded on a national exchange). Any such status
statement or financial statement delivered by Tenant pursuant to this
Section 8.16 may be relied upon by any Interested Party.
8.17 SELF-HELP. If Tenant shall at any time default beyond the expiration of
any applicable notice and cure periods provided in this Lease (except
in the event of an emergency situation, in which event Landlord may act
prior to the expiration of any applicable cure period) in the
performance of any obligation under this Lease, Landlord shall have the
right, but shall not be obligated, to enter upon the Premises and to
perform such obligation notwithstanding the fact that no specific
provision for such substituted performance by Landlord is made in this
Lease with respect to such default. In performing such obligation,
Landlord may make any payment of money or perform any other act. All
sums so paid by Landlord (together with interest at the rate of two and
one-half percentage points over the then prevailing prime rate in
Boston as set by Fleet National Bank or its successor (but in no event
greater than the maximum rate permitted by applicable law) and all
costs and expenses in connection with the performance of any such act
by Landlord, shall be deemed to be Additional Rent under this Lease and
shall be payable to Landlord immediately on demand. Landlord may
exercise the foregoing rights without waiving any other of its rights
or releasing Tenant from any of its obligations under this Lease.
8.18 HOLDING OVER. Any holding over by Tenant after the expiration of the
term of this Lease shall be treated as a tenancy at sufferance and
shall be on the terms and conditions as set forth in this Lease, as far
as applicable except that Tenant shall pay as a use and occupancy
charge an amount equal to the greater of (x) 150% of the Annual Fixed
Rent and Additional Rent calculated (on a daily basis) at the highest
rate payable under the terms of this Lease, or (y) the fair market
rental value of the Premises, in each case for the period measured from
the day on which Tenant's hold-over commences and terminating on the
day on which Tenant vacates the Premises. In addition, Tenant shall
save Landlord, its agents and employees harmless and will exonerate,
defend and indemnify Landlord, its agents and employees from and
against any and all damages which Landlord may suffer on account of
Tenant's hold-over in the Premises after the expiration or prior
termination of the term of this Lease. Nothing in the foregoing nor any
other term or provision of this Lease shall be deemed to permit Tenant
to retain possession of the Premises or hold over in the Premises after
the expiration or earlier termination of the Lease Term. All property
which remains in the Building or the Premises after the
54
expiration or termination of this Lease shall be conclusively deemed to
be abandoned and may either be retained by Landlord as its property or
sold or otherwise disposed of in such manner as Landlord may see fit.
If any part thereof shall be sold, then Landlord may receive the
proceeds of such sale and apply the same, at its option against the
expenses of the sale, the cost of moving and storage, any arrears of
rent or other charges payable hereunder by Tenant to Landlord and any
damages to which Landlord may be entitled under this Lease and at law
and in equity.
8.19 NON-SUBROGATION. Any insurance carried by either party with respect to
the Premises or property therein or occurrences thereon shall, if it
can be so written without additional premium or with an additional
premium which the other party agrees to pay, include a clause or
endorsement denying to the insurer rights of subrogation against the
other party to the extent rights have been waived by the insured prior
to occurrence of injury or loss. Each party, notwithstanding any
provisions of this Lease to the contrary, hereby waives any rights of
recovery against the other for injury or loss due to hazards covered by
such insurance to the extent of the indemnification received
thereunder. In addition, this waiver of rights by Tenant shall apply
to, and be for the benefit of, Landlord's managing agent.
8.20 EXTENSION OPTION. (A) On the conditions (which conditions Landlord may
waive by written notice to Tenant) that at the time of exercise of the
herein described option to extend (i) there exists no "Event of
Default" (defined in Section 7.1), (ii) this Lease is still in full
force and effect, and (iii) Tenant has neither assigned this Lease nor
sublet in the aggregate thirty-three percent (33%) or more of the
Rentable Floor Area of the Premises (except for an assignment or
subletting permitted without Landlord's consent under Section 5.6.1
hereof), Tenant shall have the right to extend the Term hereof upon all
the same terms, conditions, covenants and agreements herein contained
(except for the Annual Fixed Rent which shall be adjusted during the
option period as hereinbelow set forth and except that there shall be
no further option to extend) for one (1) period of five (5) years as
hereinafter set forth. The option period is sometimes herein referred
to as the "Extended Term." Notwithstanding any implication to the
contrary Landlord has no obligation to make any additional payment to
Tenant in respect of any construction allowance or the like or to
perform any work to the Premises as a result of the exercise by Tenant
of any such option.
(B) If Tenant desires to exercise its option to extend the Term, then
Tenant shall give notice to Landlord, not earlier than eighteen (18)
months nor later than fifteen (15) months prior to the expiration of
the Term of this Lease of Tenant's request for Landlord's quotation to
Tenant of a proposed Annual Fixed Rent for the Extended Term. If at the
expiration of thirty (30) days after the date when Landlord receives
Tenant's written request as aforesaid (the "Negotiation Period"),
Landlord and Tenant have not reached agreement on a determination of an
Annual Fixed Rent for such Extended Term and executed a written
instrument extending the Term of this Lease pursuant to such agreement,
then Tenant shall have the right, for ten (10) days following the
expiration of the Negotiation Period, to either (i) revoke its exercise
of the extension option or (ii)
55
make a request to Landlord for a broker determination (the "Broker
Determination") of the Prevailing Market Rent (as defined in Exhibit F)
for the Extended Term, which Broker Determination shall be made in the
manner set forth in Exhibit F. If Tenant timely shall have requested
the Broker Determination, then the Annual Fixed Rent for such Extended
Term shall be the greater of (a) ninety-five percent (95%) of the
Prevailing Market Rent as determined by the Broker Determination or (b)
the Annual Fixed Rent in effect during the last twelve (12) month
period of the Lease Term immediately prior to such Extended Term.
(C) Upon either (a) the agreement by the parties on the Annual Fixed
Rent for the Extended Term during the Negotiation Period or (b) the
timely delivery by Tenant of notice to Landlord requesting the Broker
Determination in accordance with Section 8.20(B) above, then this Lease
and the Lease Term hereof shall automatically be deemed extended, for
the Extended Term, without the necessity for the execution of any
additional documents, except that Landlord and Tenant agree to enter
into an instrument in writing setting forth the Annual Fixed Rent for
the Extended Term as determined in the relevant manner set forth in
this Section 8.20; and in such event all references herein to the Lease
Term or the Term of this Lease shall be construed as referring to the
Lease Term, as so extended, unless the context clearly otherwise
requires, and except that there shall be no further option to extend
the Lease Term. Notwithstanding anything contained herein to the
contrary, in no event shall the Lease Term hereof be extended for more
than five (5) years after the expiration of the Original Lease Term
hereof.
8.21 SECURITY DEPOSIT. (A) Concurrently with the execution of this Lease,
Tenant shall pay to Landlord a security deposit in the amount of Six
Hundred Seventy-Nine Thousand Seven Hundred Eighty-Seven and 50/100
Dollars ($679,787.50) and Landlord shall hold the same, throughout the
Term of this Lease, as security for the performance by Tenant of all
obligations on the part of Tenant to be performed under this Lease.
Such deposit shall be in the form of an irrevocable, unconditional,
negotiable letter of credit (the "Letter of Credit"). The Letter of
Credit shall (i) be issued by and drawn on a bank reasonably approved
by Landlord and at a minimum having a corporate credit rating from
Standard & Poor's Professional Rating Service of BBB- or comparable
minimum rating from Xxxxx'x Professional Rating Service, (ii) be in a
form reasonably acceptable to Landlord, (iii) permit one or more draws
thereunder to be made accompanied by a certification by Landlord that
pursuant to the terms of this Lease, Landlord is entitled to draw upon
such Letter of Credit, (iv) permit transfers or pledges at any time
without charge to any purchase of the Building or Landlord's interest
therein or to any lender as security for a loan and (v) permit
presentment in Boston, Massachusetts. Any such Letter of Credit shall
be for a term of two (2) years (or for one (1) year if the issuer
thereof regularly and customarily only issues letters of credit for a
maximum term of one (1) year) and shall in either case provide for
automatic renewals through the date which is thirty (30) days
subsequent to the scheduled expiration of this Lease or if the issuer
will not grant automatic renewals, the Letter of Credit shall be
renewed or substituted (by substitute Letter of Credit) by Tenant each
year and each renewal or substitution Letter of Credit shall be
delivered to and received by Landlord not later than thirty (30) days
before the
56
expiration of the then current Letter of Credit (herein called a
"Renewal Presentation Date"). In the event of a failure to so deliver
such renewal or substitution Letter of Credit on or before the
applicable Renewal Presentation Date, Landlord shall be entitled to
present the then existing Letter of Credit for payment and to receive
the proceeds thereof, which proceeds shall be held as Tenant's security
deposit, subject to the terms of this Section 8.21. Upon the occurrence
and during the continuation of any Event of Default on the part of
Tenant under the terms of this Lease, Landlord shall have the right
from time to time without prejudice to any other remedy Landlord may
have on account thereof, to draw on all or any portion of such deposit
held as a Letter of Credit and to apply the proceeds of such Letter of
Credit or any cash held as such deposit, or any part thereof, to
Landlord's damages arising from such default. If Landlord so applies
all or any portion of such deposit, Tenant shall within ten (10) days
after notice from Landlord deposit cash with Landlord or increase the
amount of the Letter of Credit in an amount sufficient to restore such
deposit to the full amount stated in this Section 8.21. While Landlord
holds any cash deposit Landlord shall have no obligation to pay
interest on the same and shall have the right to commingle the same
with Landlord's other funds. Neither the holder of a mortgage nor the
Landlord in a ground lease on property which includes the Premises
shall ever be responsible to Tenant for the return or application of
any such deposit, whether or not it succeeds to the position of
Landlord hereunder, unless such deposit shall have been received in
hand by such holder or ground Landlord.
(B) Provided that Tenant has maintained liquidity of at least
$25,000,000.00 as of the fiscal quarter ending immediately prior to the
scheduled reduction date set forth herein, Landlord shall exchange the
Letter of Credit for a Letter of Credit delivered by Tenant which
reduces the amount secured by the Letter of Credit by Three Hundred
Thirty-Nine Thousand Eight Hundred Ninety-Three and 75/100 Dollars
($339,893.75) so that the remaining amount secured by the Letter of
Credit shall be Three Hundred Thirty-Nine Thousand Eight Hundred
Ninety-Three and 75/100 Dollars ($339,893.75) on the first day of the
thirty-seventh (37th) month of the Lease Term if (i) Tenant is not then
in default under the terms of this Lease without the benefit of notice
or grace (provided that such reduction shall occur if and when Tenant
cures the same within the applicable cure period), and (ii) Landlord
has not applied such deposit, or any portion thereof, to Landlord's
damages arising from any default on the part of Tenant, whether or not
Tenant has restored the amount so applied by Landlord. For the purposes
hereof, "liquidity" shall be measured as a total of cash, cash
equivalents and short-term and long-term marketable securities on
Tenant's balance sheet.
(C) Tenant not then being in default and having performed all of its
obligations under this Lease, including the payment of all Annual Fixed
Rent, Landlord shall return the deposit, including all interest earned
thereon, or so much thereof as shall not have theretofore been applied
in accordance with the terms of this Section 8.21, to Tenant on the
expiration or earlier termination of the term of this Lease (as the
same may have been extended) and surrender possession of the Premises
by Tenant to Landlord in the condition required in the Lease at such
time.
57
8.22 LATE PAYMENT. If after having received written notice of late payment one
time during any calendar year during the Lease Term, Tenant shall
thereafter fail to make any payment or installment of Annual Fixed Rent or
Additional Rent on or before the date (the "Interest Accrual Date") which
is five (5) days from the date on which the same first becomes payable
under this Lease, the amount of such payment or installment shall bear
interest from the Interest Accrual Date through and including the date
such payment or installment is received by Landlord, at a rate equal to
the lesser of (i) the rate announced by Fleet National Bank (or its
successor) from time to time as its prime or base rate (or if such rate is
no longer available, a comparable rate reasonably selected by Landlord),
plus two percent (2%), or (ii) the maximum applicable legal rate, if any.
Such interest shall be deemed Additional Rent and shall be paid by Tenant
to Landlord upon demand.
8.23 TENANT'S PAYMENTS. Each and every payment and expenditure, other than
Annual Fixed Rent, shall be deemed to be Additional Rent hereunder,
whether or not the provisions requiring payment of such amounts
specifically so state, and shall be payable, unless otherwise provided in
this Lease, within thirty (30) days after written demand by Landlord, and
in the case of the non-payment of any such amount, Landlord shall have, in
addition to all of its other rights and remedies, all the rights and
remedies available to Landlord hereunder or by law in the case of
non-payment of Annual Fixed Rent. Unless expressly otherwise provided in
this Lease, the performance and observance by Tenant of all the terms,
covenants and conditions of this Lease to be performed and observed by
Tenant shall be at Tenant's sole cost and expense. If Tenant has not
objected to any statement of Additional Rent which is rendered by Landlord
to Tenant within ninety (90) days after Landlord has rendered the same to
Tenant, then the same shall be deemed to be a final account between
Landlord and Tenant not subject to any further dispute. In the event that
Tenant shall seek Landlord's consent or approval under this Lease, then
Tenant shall reimburse Landlord, upon demand, as Additional Rent, for all
reasonable costs and expenses, including legal and architectural costs and
expenses, incurred by Landlord in processing such request, whether or not
such consent or approval shall be given.
8.24 WAIVER OF TRIAL BY JURY. To induce Landlord to enter into this Lease,
Tenant hereby waives any right to trial by jury in any action, proceeding
or counterclaim brought by either Landlord or Tenant on any matters
whatsoever arising out of or any way connected with this Lease, the
relationship of the Landlord and the Tenant, the Tenant's use or occupancy
of the Premises and/or any claim of injury or damage, including but not
limited to, any summary process eviction action.
8.25 GOVERNING LAW. This Lease shall be governed exclusively by the provisions
hereof and by the law of the Commonwealth of Massachusetts, as the same
may from time to time exist.
58
EXECUTED as a sealed instrument in two or more counterparts each of which
shall be deemed to be an original.
LANDLORD:
WITNESS: STONY BROOK ASSOCIATES LLC, a
Delaware limited liability company
----------------------------
By: Xxxxx Road Development Associates LLC, a
managing member
By: Boston Properties Limited Partnership,
a managing member
By: Boston Properties, Inc., its
general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Contalupa
-----------------------------
Title: Sr. Vice President
----------------------------
TENANT:
NETEGRITY, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name:
-------------------------------------
Title: PRESIDENT
------------------------------------
(OR VICE PRESIDENT)
------------------------------------
HERETO DULY AUTHORIZED
ATTEST:
Name: By: /s/ Xxxxxx X. Xxxxxx
----------------------
Title: SECRETARY Name:
---------------------
(ASSISTANT SECRETARY) Title: TREASURER
---------------------------- ------------------------------------
(OR ASSISTANT TREASURER)
------------------------------------
HERETO DULY AUTHORIZED
(CORPORATE SEAL)
59
EXHIBIT A
Five parcels of land in Waltham and Weston, Middlesex County, Commonwealth
of Massachusetts, of which Parcel I and Parcel II are shown on a plan entitled
"Plan of Land in Waltham, Massachusetts, Prepared For Boston Properties," by
Xxxxxxxx Xxxxxxx + Associates, Inc., Engineers and Architects, Scale 1" - 80',
dated August 4, 1998, and recorded with Middlesex South Registry of Deeds as
Plan #863 of 1998 in Book 28950, Page 76; being further described as follows:
PARCEL I:
The land in Waltham shown as "Parcel One" on said plan, and being further
described as follows:
Beginning at a stone bound on the northerly sideline of the land
formerly of The Boston and Maine Railroad Central Mass. Div., now of
the Massachusetts Bay Transportation Authority (MBTA) said bound being
at the southeasterly corner of the herein described premises;
thence running by a curve to the right having a radius of 1122.13 feet
and an arc length of 253.63 feet;
thence turning and running N 67(degree) 04' 17" W by land now or formerly
of Xxxxxxx Xxxxxxxx a distance of 97.00 feet to a point;
thence turning and running S 15(degree) 48' 39" W by land of said Xxxxxxxx
a distance of 15.00 feet;
thence running by said MBTA land by a curve to the right having a radius
of 1122.13 feet and an arc length of 367.75 feet to a point;
thence turning and running N 54(degree) 43' 37" W by said MBTA land 162.84
feet to a point;
thence running by said MBTA land by a curve to the left having a radius of
1183.68 feet and an arc length of 293.42 feet to a point on a stone wall;
thence turning and running by said wall and by land now or formerly of the
Xxxxxxxx/Waltham Company the following eight courses:
N 16(degree) 49' 21" E, 62.97 feet;
N 34(degree) 45' 37" E, 18.58 feet to a drill hole;
N 51(degree) 21' 13" E, 11.21 feet;
N 62(degree) 49' 54" E, 28.58 feet;
N 80(degree) 23' 22" E, 13.70 feet:
N 84(degree) 13' 51" E, 77.28 feet to a drill hole;
S 64(degree) 16' 21" E, 43.21 feet to a drill hole;
S 35(degree) 57' 50" E, 26.95 feet.
Thence turning and running by land now or formerly of Xxxxx X. Xxxxxxx,
land of Rob, Xxxx & Xxxxx XxXxxxx, Xxxxx Road, and land of Greenwall
Associates, S 69(degree) 49' 03" E a distance of 877.27 feet to a point;
thence turning and running by land now or formerly of Xxxxxx Xxxxxxxxx and
by said MBTA land S 09(degree) 42' 43" E a distance of 203.18 feet to the
point of beginning.
The above described parcel contains 5.25 acres, more or less, according to said
plan.
Said Parcel I is also shown as three parcels known as "Lot 17A, 121,699 +/- S.F.
(2.79 +/- AC.)," "Lot 17B, 85,950 +/- S.F. (1.97 +/- AC.)," and "Xxxxx Road
Extension (Private) (50' Wide)" on a plan entitled "Lot Layout Plan I, Xxxxx
Road Extension, Waltham, Massachusetts, Issued for Definitive Subdivision Plan
Approval, Drawing C-4 of 15," and prepared by Xxxxxxx Xxxxxx Brustlin, Inc.,
last dated revision August 12, 1998, which plan was recorded with Middlesex
South Registry of Deeds as Plan #162 of 1999, in Book 29826, Page 353.
PARCEL II:
The land in Waltham and Weston shown as "Parcel Two" on said plan, and being
further described as follows:
Beginning at a stone bound at the southeasterly corner of the
above-described Parcel One;
thence running S 01(degree) 22' 22" E a distance of 82.50 feet across land
of the MBTA to a point on the southerly layout line of said MBTA land;
thence running by a curve to the right having a radius of 1204.63 feet and
an arc length of 374.70 feet to the true point of beginning.
thence turning and running S 15(degree) 48' 39" W a distance of 98.17 feet
to a point;
thence turning and running S 86(degree) 00' 21" E a distance of 96.94 feet
to a point;
thence turning and running S 24(degree) 00' 59" W, partly by a wall,
488.49 feet to a drill hole;
thence turning and running by a wall S 33(degree) 31' 30" W a distance of
91.45 feet to a drill hole;
2
thence turning and running by a wall N 51(degree) 00' 53" W a distance of
49.01 feet to a drill hole;
thence turning and running by a wall N 57(degree) 39' 25" W a distance of
108.53 feet to a drill hole;
thence turning and running by a wall N 53(degree) 23' 23" W a distance of
46.45 feet to a drill hole;
thence turning and running by a wall N 34(degree) 40' 17" W a distance of
87.60 feet to a drill hole;
thence turning and running by a wall N 68(degree) 31' 10" W a distance of
143.69 feet to a drill hole;
thence turning and running S 60(degree) 25' 39" W a distance of 70 feet
more or less to a point in the centerline of Stony Brook;
then turning and running by the centerline of Stony Brook, approximately
590+/- feet to a point on the northerly side of the land formerly of The
Boston & Maine Railroad, Fitchburg Div., now of the Massachusetts Bay
Transportation Authority (MBTA);
thence running by said MBTA land, by a curve to the left having a radius
of 1959.37 feet and an arc length of 42 feet, more or less, to a point of
compound curvature;
thence running by said MBTA land, by a curve to the left having a radius
of 1923.21 feet and an arc length of 212.96 feet to a point;
thence turning and running by said MBTA land N 53(degree) 58' 14" W a
distance of 272.68 feet to a point on the Town Line dividing the City of
Waltham and Town of Weston;
thence turning and running by said Town Line N 22(degree) 22' 15" E a
distance of 52.90 feet to a point;
thence continuing by said Town Line N 22(degree) 22' 16" E a distance of
147.63 feet to a point on the southerly sideline of land now of the
Massachusetts Bay Transportation Authority (MBTA) land, formerly of the
Boston & Maine Railroad Central Mass. Division;
thence running by said MBTA land by a curve to the right having a radius
of 1101.18 feet and an arc length of 898.10 feet to a point;
3
thence turning and running by said MBTA land S 54(degree) 43' 37" E a
distance of 162.84 feet to a point;
thence running by said MBTA land by a curve to the left having a radius of
1204.63 feet and an arc length of 395.77 feet to the true point and place
of beginning.
The above described premises contains 17.5+/- acres, according to said plan.
So much of said Parcel II as is located in Waltham is also shown as "Lot 1A,
760,126 +/- S.F. (17.5 +/- AC.)" on a plan entitled "Lot Layout Plan I, Xxxxx
Road Extension, Waltham, Massachusetts, Issued for Definitive Subdivision Plan
Approval, Drawing C-4 of 15," and prepared by Xxxxxxx Xxxxxx Brustlin, Inc.,
last dated revision August 12, 1998, which plan was recorded with Middlesex
South Registry of Deeds as Plan #162 of 1999, in Book 29826, Page 353.
PARCEL III:
A parcel of land in Weston shown as "Xxxxxx Xxxxxx Xxxxxx" on a plan entitled
"Plan of Lands in Waltham, Massachusetts" by Xxxxxxx X. Xxxxxx & Co. - Civil
Engineers, dated May 1952, and recorded as Plan No. 2231 of 1952 in Book 8010,
Page 143.
Said parcel is also shown on a Survey entitled "ALTA/ACSM Land Title
Survey, Waltham/Weston Corporate Center, 00 Xxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxxx," prepared by Xxxxxxxx Xxxxxxx Associates, Xxxx Xxxxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxx., 00000, dated January 17, 2001, and bounded and
described as follows:
Beginning at a point on the northerly sideline of land formerly of the
Boston & Maine Railroad, Fitchburg, Div., now of the Massachusetts Bay
Transportation Authority (MBTA), at its intersection with the southerly
sideline of land formerly of the Boston & Maine Railroad Central Mass.
Div., now of the MBTA;
thence running by said MBTA land by a curve to the right having a radius
of 1101.18 feet and an arc length of 228.90 feet to a point intersecting
said southerly line of said MBTA land and the approximate town line
dividing the Town of Weston and the City of Waltham;
thence turning and running S 22(degree) 22' 16" W by Parcel Two a distance
of 147.63 feet to a point;
thence turning and running N 67(degree) 09' 45" W by said MBTA land, in
part by a wall, a distance of 175.59 feet to the point of beginning.
4
PARCEL IV:
A parcel of land in Weston being shown as lot "5A, 0.8 acres, Xxxxxx Xxxxx," on
a plan entitled "Plan of Lands in Waltham, Massachusetts" by Xxxxxxx X. Xxxxxx &
Co. - Civil Engineers, dated May 1952, and recorded as Plan No. 2231 of 1952 in
Book 8010, Page 143.
The above described parcel contains 0.8 acres, more or less, according to said
plan.
Said parcel is also shown on a Survey entitled "ALTA/ACSM Land Title
Survey, Waltham/Weston Corporate Center, 00 Xxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxxx," prepared by Xxxxxxxx Xxxxxxx Associates, Xxxx Xxxxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxx., 00000, dated January 17, 2001, and bounded and
described as follows:
Beginning at the southeasterly corner of the herein described premises;
thence running by land of the MBTA by a curve to the left having a radius
of 1959.37 feet and an arc length of 519 feet, more or less, to a point in
the centerline of the Stony Brook;
thence turning and running by the centerline of the Stony Brook and by
Parcel Two a distance of 590+/- feet, more or less, to a point;
thence running by land now or formerly of the Massachusetts Broken Stone
Company S 60 (degree) 25' 39" W a distance of 100+/- feet, more or less,
to the point of beginning.
PARCEL V (Easement Parcel):
Crossing Easement from Massachusetts Bay Transportation Authority as recited in
Easement Agreement dated February 11, 1999, recorded February 22, 1999, in Book
29826, Page 393, and shown on Easement Plan recorded as Plan #163 of 1999, in
Book 29826, Page 392; also shown as "Crossing Easement A" over land in Waltham
on a plan entitled "Lot Layout Plan I, Xxxxx Road Extension, Waltham,
Massachusetts, Issued for Definitive Subdivision Plan Approval, Drawing C-4 of
15," and prepared by Xxxxxxx Xxxxxx Brustlin, Inc., last dated revision August
12, 1998, which plan was recorded with Middlesex South Registry of Deeds as Plan
#162 of 1999, in Book 29826, Page 353.
5
EXHIBIT B
WALTHAM WESTON CORPORATE CENTER
NETEGRITY, INC.
BUILDING STANDARD MATERIALS AND TURNKEY SCOPE
Landlord will provide a turn-key buildout of Tenant's Premises substantially in
accordance with the following scope definition and plan dated 7/30/02 attached
hereto and incorporated herein as part of this Exhibit B. The improvements will
be constructed with the building standard materials described below.
PARTITIONS
The following building standard materials will be provided by Landlord:
a. Interior ceiling partitions (i.e. partitions within a single
premises) will be 2-1/2" metals studs 24" on center with one layer
of 5/8" gypsum board on each side. Partition will extend from floor
to six (6) inches above the acoustic tile ceiling.
b. Demising or other partitions providing sound attenuation will be
2-1/2" metal studs with two layers of 5/8" gypsum board on one side
and one layer of 5/8" gypsum board on the other. Demising partitions
will extend from floor to underside of structure above, subject to
requirements of the building air conditioning system, and the
partition will be filled with 3" compressed fiberglass sound
insulation.
c. All partitions will have vinyl base 4" high.
d. The CEO office, CEO's Assistant Area and the office next to the Engr
Kitchen and Play Area to receive demising partitions described in b.
above. Additional sound attenuation materials to be evaluated by the
architect.
The following turnkey scope will be provided by Landlord:
a. Ceiling high partitions will be provided for the following:
1. Twenty-two (22) offices - 100 SF
2. Fourteen (14) offices - 120 SF
3. Fourteen (14) offices - 150 SF
4. Six (6) offices - 175 SF
5. Two (2) offices - 200 SF
6. One (1) Large Conference Room - 400 SF
7. Six (6) Medium Conference Room - 300 SF
8. Three (3) Small Conference Room - 140 SF
9. One (1) Large Lab - 670 SF
10. Three (3) Medium Labs - Two (2) at 300 SF and One (1) at 400
SF
11. One (1) Large Server Room - 720 SF
12. One (1) Engr Kitchen & Play Area
13. One (1) Shipping & Receiving Area
Netegrity, Inc. - Exhibit B 1
14. One (1) Service Lobby
15. Four (4) Small Storage Closets
16. Four (4) Small Telephone Closets
17. One (1) Break Area
18. One (1) Lunch/Vending Area
19. One (1) Kitchen Area
20. One (1) Toilet Room
21. One (1) Travel Office
b. Glass sidelights (18") shall be provided at all office and
conference room doors 100 SF and larger (68 total)
DOORS
Building standard doors shall consist of the following:
a. All doors within a single premises will be 3'0" x 8'0" solid core
with stain grade, standard veneer faces, 1-3/4" thick and shall
receive two coats of factory clear polyurethane finish. Door frames
will be aluminum. Hardware will include 2 pair of butts, one
standard duty latch set and one door stop. Offices greater than 175
SF shall be equipped with locksets (9 total).
b. All office doors to contain one coat hook.
c. Lab, Server Room, and Playroom doors to have closers (11 total).
d. The four (4) doors located off the main reception area and two (2)
doors in the East Wing Service Lobby shall have vision panels.
e. Glass sidelights - frames will be aluminum with 18" single pane
glazing.
f. Perimeter office sidelights shall have a glazing film applied (23
total).
PAINTING AND WALL COVERING
The building standard for painting and wall covering is:
a. All wall surfaces shall receive two coats of eggshell finish latex
paint. Color selection will be made from a mutually agreed upon
color palette with not more than one color per office. Accent colors
may be used throughout the Premises.
b. Conference rooms and senior VP office (175 SF or larger) may contain
one accent color per room.
c. All door frames within a single premises shall receive two coats of
semi-gloss enamel to be selected from building standard samples. All
interior door frames shall receive two coats of clear polyurethane.
CEILING
Building standard ceilings shall be 2'0" x 2'0" reveal edge textured acoustic
lay-in tile, Celotex LeBaron, or equal. Ceiling height will be 9'0" typically.
Above building standard ceiling will be provided in the following areas:
a. Reception Area - Per mutually agreed to perspective drawing dated
August 8, 2002, a combination drywall ceiling (approximately 50%)
and
Netegrity, Inc. - Exhibit B 2
upgraded 2'0" x 2'0" acoustic tile (approximately 50%; target
$3.25/sf) will be provided.
b. Medium Conference Room - Per mutually agreed to perspective drawing
dated August 8, 2002, a combination drywall ceiling (approximately
50%) and upgraded 2'0" x 2'0" acoustic tile (approximately 50%;
target $3.25/sf) will be provided.
c. Large Conference Room - A combination of drywall and upgraded 2'0" x
2'0" acoustic tile (target $3.25/sf) will be provided. Target
percentage of drywall and acoustic tile is 25% and 75%,
respectively.
d. Engr Lunch and Playroom - A drywall soffit will be installed above
the counters on the east side of the Play Room (22 LF).
e. Intersection points - upgraded ceiling treatment (drywall or dropped
2' x 2' acoustic tile) to be evaluated by architect, tenant and
landlord at various corridor intersection points (6 locations
total).
LIGHTING
Building standard lighting shall be 2' x 4', low-brightness three tube parabolic
reflector fixtures. Above building standard lighting shall be provided in the
following areas:
a. Reception Area - Incandescent downlight fixtures shall be installed
in the Reception Area (approximately 14 fixtures). In addition, one
standard drop fixture to be located over the seating area.
b. Medium Conference Room - Incandescent downlight fixtures shall be
installed in the Medium Conference Room (approximately 10 fixtures).
In addition, one standard drop fixture to be located over the
conference table.
c. Large Conference Room - Incandescent downlight fixtures to be
installed in the Large Conference Room (approximately 14 fixtures).
d. Open office areas - Indirect lighting to be installed in the open
office areas.
e. Private offices - tenant will determine whether to install building
standard 2' x 4' fixtures or indirect lighting in partitioned
offices. For offices 120 SF or smaller, a 6' indirect fixture will
be provided. For offices larger than 120 SF, a 8' indirect fixture
will be provided.
TELEPHONE OUTLETS
Building standard tel/data work shall include one wall location per office
prepared to receive a telephone outlet installation by Tenant's
telecommunication contractor. In total, one tel/data box will be provided for
each 200 square feet of rentable area, each to consist of plaster ring and cable
pull string to above its individual ceiling. In addition, each conference room
shall have two tel/data boxes on opposite walls.
ELECTRIC
The following describes building standard materials and turnkey scope for
Tenant's electrical:
a. Two (2) electric outlets (one of which may be a quadplex outlet) and
one (1) telephone outlet per office, except all conference rooms to
have four
Netegrity, Inc. - Exhibit B 3
(4) electric duplex outlets and two (2) telephone outlets. Eight (8)
duplex outlets per circuit.
b. Power feeds to two hundred forty-eight (248) workstations, four (4)
workstations per circuit.
c. Tenant to provide data and telephone wiring to offices and
workstations.
d. Miscellaneous duplex outlets, as reasonably required, in all
auxiliary space such as lichens, mail room, printer/fax locations
and copy rooms with the exception of special electrical requirements
in excess of the criteria specified in Exhibit C Landlord Services.
HVAC
The building standard HVAC scope consists of a complete variable air volume
(VAV) system installed to serve all areas of the premises, including the
installation of a medium pressure ring duct, as provided in the preliminary Base
Building Outline Specifications previously furnished. Space thermostats and
separate zones will be provided for approximately each 50 lineal feet of
building perimeter and approximately each 2,000 square feet of building
interior. Any thermostats located at an exterior wall shall be insulated.
Supply air shall be provided through ceiling mounted diffusers. Return air will
be into a ceiling return air plenum through slots in the light fixtures or
separate ceiling mounted grills as required. A separate zone and exhaust fan to
the ceiling plenum for the conference rooms.
MILLWORK
a. Plastic laminate base cabinets and counter tops in:
i) Copy Rooms, 25 XX
xx) Break Rooms/Kitchens, 52 LF
iii) Fax/Printer locations, 35 XX
x. Paint grade shelf and rod in each Coat Closet (2 total).
PLUMBING
One (1) sink with waste and hot and cold water in Engr Lunch & Play Area, Break
Room, East Wing Kitchen and restroom located near the Reception Area. In
addition a coffee maker hook up will be provided in the in Engr Lunch & Play
Area, Break Room and East Wing Kitchen. One (1) toilet will be provided in the
restroom located near the Reception Area. Any additional plumbing required to be
provided at Tenant's Cost.
FLOOR FINISHES
A flooring allowance of $20/SY of installed area shall be provided (including
vinyl base at partitions).
Netegrity, Inc. - Exhibit B 4
STRUCTURAL REINFORCEMENT
No additional structural requirements beyond that provided by Base Building
Specifications are included in tenant improvements.
FIRE PROTECTION
The fire protection system will be installed to meet all applicable local, state
and federal codes and regulations for light hazard occupancy.
SPECIAL ALLOWANCE
Landlord will provide a Special Allowance of $30,000 to be used by Tenant in
connection with Tenant Improvements to the Premises above and beyond the turnkey
scope described above.
Except as described above, the following work is excluded from the Landlord's
turnkey scope of work:
a. Any electrical work in excess of that described in the preliminary
Base Building Outline Specifications previously furnished.
b. Any HVAC work in excess of that described in the preliminary Base
Building Outline Specifications previously furnished.
c. Tenant's telecommunication design, systems, wires, equipment and
other services or infrastructure required by Tenant.
d. Tenant's security design, systems, equipment, wires and other
services and infrastructure required by Tenant.
e. Tenant's audio/visual design, systems, equipment and other services
and infrastructure required by Tenant.
f. Tenant's furniture design, wiring, and installation.
Netegrity, Inc. - Exhibit B 5
EXHIBIT B-1
WALTHAM WESTON CORPORATE CENTER
ADDITIONAL TENANT WORK DRAWING REQUIREMENTS
1. Floor plan indicating workstation and furniture locations.
2. Location of standard electrical convenience outlets and telephone
outlets.
3. Location and details of special electrical outlets; (e.g. Xerox),
including voltage, amperage, phase and NEMA configuration of outlets.
4. Locations and details of special security requirements and equipment.
5. Locations and details of special audio/visual requirements, equipment
and systems.
6. Location and heat load in BTU/Hr. of all special air conditioning and
ventilating requirements (i.e. rooms such as telephone closets, server
room, NOC rooms and labs).
7. Location and details of special structural requirements, e.g., slab
penetrations and areas with floor loadings exceeding a live load of 100
lbs./s.f (i.e. for any UPS system, heavy file storage, etc)
8. Details and specifications of special millwork, rolling doors/movevable
partitions, grilles, blackboards, shelves, etc.
9. Verified dimensions of all built-in equipment (file cabinets, lockers,
plan files, etc.).
10. Location of any special soundproofing requirements.
11. All drawings to be uniform size (30" X 42") and shall incorporate the
standard project electrical and plumbing symbols and be at a scale of 1/8"
= 1' or larger.
12. Additional Tenant Work Drawing submittal shall be in a CAD format
compatible with Landlord's architect drawing system.
EXHIBIT C
WALTHAM WESTON CORPORATE CENTER
WALTHAM, MASSACHUSETTS
LANDLORD SERVICES
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I. CLEANING:
Cleaning and janitor services as provided below:
A. OFFICE AREAS:
DAILY: (Monday through Friday, inclusive, holidays excepted).
1. Empty and clean all waste receptacles and ashtrays and remove
waste material from the Premises; wash receptacles as
necessary.
2. Sweep and dust mop all uncarpeted areas using a dust-treated
mop.
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all horizontal
surfaces, including furniture, office equipment, window xxxxx,
door ledges, chair rails, and convector tops, within normal
reach.
5. Wash clean all water fountains and sanitize.
6. Move and dust under all desk equipment and telephones and
replace same (but not computer terminals, specialized
equipment or other materials).
7. Wipe clean all chrome and other bright work.
8. Hand dust grill work within normal reach.
9. Main doors to premises shall be locked and lights shut off
upon completion of cleaning.
10. Empty all recycling bins and remove all recyclables.
WEEKLY:
Dust coat racks and the like.
QUARTERLY:
1. Render high dusting not reached in daily cleaning to
include:
a) dusting all pictures, frames, charts, graphs and similar
wall hangings.
b) dusting of all vertical surfaces, such as walls,
partitions, doors and door frames, etc.
c) dusting all pipes, ducts and moldings.
d) dusting of all vertical blinds.
2. Spray buff all resilient floors.
B. LAVATORIES:
DAILY: (Monday through Friday, inclusive, holidays excepted).
1. Sweep and damp mop.
2. Clean all mirrors, powder shelves, dispensers and receptacles,
bright work, flushometers, piping and toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins, bowls and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel dispensers,
sanitary dispensers; materials to be furnished by Landlord.
MONTHLY:
1. Machine scrub lavatory floors.
2. Wash all partitions and tile walls in lavatories.
3. Dust all lighting fixtures and grills in lavatories.
C. MAIN LOBBIES, ELEVATORS, STAIRWELLS AND COMMON CORRIDORS:
DAILY: (Monday through Friday, inclusive, holidays excepted).
1. Sweep and damp mop all floors, empty and clean waste
receptacles, dispose of waste.
2. Clean elevators, wash or vacuum floors, wipe down walls and
doors.
3. Spot clean any metal work inside lobbies.
4. Spot clean any metal work surrounding building entrance doors.
5. Sweep all stairwells and dust handrails.
MONTHLY:
1. All resilient tile floors in public areas to be spray buffed.
D. WINDOW CLEANING:
All exterior windows shall be washed on the inside and outside
surfaces no less than two (2) times per year.
II. HVAC:
A. Heating, ventilating and air conditioning equipment will be provided
with sufficient capacity to accommodate a maximum population density
of one (1) person per one hundred fifty (150) square feet of
rentable floor area served, and a combined lighting and standard
electrical load of 4 xxxxx per square foot of rentable floor area.
In the event Tenant introduces into the Premises personnel or
equipment which overloads the system's ability to adequately perform
its proper functions, Landlord shall so notify Tenant in writing. If
within fifteen (15) days Tenant has not modified its use so as not
to cause such overload, Landlord may, if needed, provide
supplemental systems at Tenant's expense.
Operating criteria of the basic system are in accordance with the
Massachusetts Energy Code and shall not be less than the following:
i) Cooling season indoor conditions of not in excess of 00X
Xxxxxxxxxx when outdoor conditions are 00X Xxxxxxxxxx drybulb
and 74E Fahrenheit wetbulb.
ii) Heating season minimum room temperature of 00X Xxxxxxxxxx when
outdoor conditions are 1E Fahrenheit drybulb.
B. Landlord shall provide heating, ventilating and air conditioning as
normal seasonal charges may require during Normal Building Operating
Hours (7:00 a.m. to 6:00 p.m., Monday through Friday, and 8:00 a.m.
to 1:00 p.m. on Saturdays, legal holidays in all cases excepted).
If Tenant shall require air conditioning (during the air
conditioning season) or heating or ventilating during any season
outside Normal Building Operating Hours, Landlord shall use
landlord's best efforts to furnish such services for the area or
areas specified by written request of Tenant delivered to the
Building Superintendent or the Landlord before 3:00 p.m. of the
business day preceding the extra usage. For such services, Tenant
shall pay Landlord, as additional rent, upon receipt of billing, a
sum equal to the cost incurred by Landlord.
III. ELECTRICAL SERVICES:
A. Landlord shall provide electric power for a combined load of 4.0
xxxxx per square foot of useable area for lighting and for office
machines through standard receptacles for the typical office space.
B. Landlord, at its option, may require separate metering and direct
billing to Tenant for the electric power required for any special
equipment (such as computers and reproduction equipment) that
requires either 3-phase electric power or any voltage other than
120, or for any other usage in excess of 3.5 xxxxx per square foot.
C. Landlord will furnish and install, at Tenant's expense, all
replacement lighting tubes, lamps and ballasts required by Tenant.
Landlord will clean lighting fixtures on a regularly scheduled basis
at Tenant's expense.
IV. ELEVATORS:
Provide passenger elevator service twenty-four (24) hours per day, seven
(7) days per week.
V. WATER:
Provide hot water for lavatory purposes and cold water for drinking,
lavatory and toilet purposes.
VI. BUILDING DIRECTORY
Provide a building directory.
VII. CARD ACCESS SYSTEM:
Landlord will provide a card access system at one entry door of the
building.
EXHIBIT E
DECLARATION AFFIXING THE COMMENCEMENT DATE OF LEASE
THIS AGREEMENT made this day of , 200 , by and between
STONY BROOK ASSOCIATES LLC (hereinafter "Landlord") and NETEGRITY, INC.
(hereinafter "Tenant").
W I T N E S S E T H T H A T:
1. This Agreement is made pursuant to Section 2.4 of that certain Lease
dated , 2002 between the parties aforenamed as Landlord and
Tenant (the "Lease").
2. It is hereby stipulated that the Lease Term commenced on ,
(being the "Commencement Date" under the Lease), and shall end and expire on
, unless sooner terminated or extended, as provided for in the Lease.
WITNESS the execution hereof under seal by persons hereunto duly
authorized, the date first above written.
LANDLORD:
STONY BROOK ASSOCIATES LLC
By: Xxxxx Road Development Associates
LLC, a managing member
By: Boston Properties Limited Partnership,
a managing member
By: Boston Properties, Inc., its
general Partner
By:
---------------------------
Name:
-------------------------
Title:
------------------------
TENANT:
NETEGRITY, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK , 200
---------------- -
Then personally appeared before me the above-named , as
---------------
of Stony Brook Associates LLC as aforesaid, who acknowledged the
-------------
foregoing instrument to be his free act and deed as such officer and the free
act and deed of said limited liability company.
NOTARY PUBLIC
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF , 200
--------------------------- ------------------- -
Then personally appeared before me the above-named , as
---------------
of Netegrity, Inc. as aforesaid, who acknowledged the
------------------
foregoing instrument to be his/her free act and deed as such officer and the
free act and deed of said corporation.
NOTARY PUBLIC
My Commission Expires:
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EXHIBIT F
BROKER DETERMINATION OF PREVAILING MARKET RENT
AND OTHER BUSINESS TERMS AND CONDITIONS
Where in the Lease to which this Exhibit is attached provision is made for
a Broker Determination of Prevailing Market Rent and/or the other business terms
and conditions upon which particular space is to be leased by Tenant, the
following procedures and requirements shall apply:
1. Tenant's Request. Tenant shall send a notice to Landlord by the time set
for such notice in the applicable section of the Lease, requesting a
Broker Determination of the Prevailing Market Rent and (to the extent
applicable) other business terms and conditions, which notice to be
effective must (i) make explicit reference to the Lease and to the
specific section of the Lease pursuant to which said request is being
made, (ii) include the name of a broker selected by Tenant to act for
Tenant, which broker shall have at least ten (10) years experience dealing
in properties of a nature and type generally similar to the Building
located in the Boston West Suburban Market, and (iii) explicitly state
that Landlord is required to notify Tenant within thirty (30) days of an
additional broker selected by Landlord.
2. Landlord's Response. Within thirty (30) days after Landlord's receipt of
Tenant's notice requesting the Broker Determination and stating the name
of the broker selected by Tenant, Landlord shall give written notice to
Tenant of Landlord's selection of a broker having at least the affiliation
and experience referred to above.
3. Selection of Third Broker. Within ten (10) days thereafter the two (2)
brokers so selected shall select a third such broker also having at least
the affiliation and experience referred to above.
4. Broker Determination. Within thirty (30) days after the selection of the
third broker, the three (3) brokers so selected, by majority opinion,
shall make a determination of the annual fair market rental value of the
Premises and (to the extent applicable) other business terms and
conditions for the period referred to in the Lease. Such determination (x)
may include provision for annual increases or decreases in rent during
said term if so determined, (y) shall take into account the condition of
the Premises and (z) shall take account of, and be expressed in relation
to, provisions for paying for operating expenses, taxes and tenant
electricity as contained in the Lease. The brokers shall advise Landlord
and Tenant in writing by the expiration of said thirty (30) day period of
the annual fair market rental value (which as so determined shall be
referred to as the Prevailing Market
Exhibit F - Page 1 of 2
Rent) and (to the extent applicable) other business terms and conditions
upon which the space is to be leased by Tenant.
5. Resolution of Broker Deadlock. If the Brokers are unable to agree at least
by majority on a determination of annual fair market rental value and/or
other business terms and conditions, then the brokers shall send a notice
to Landlord and Tenant by the end of the thirty (30) day period for making
said determination setting forth their individual determinations, and in
the case of monetary determinations, the highest such determination and
the lowest such determination shall be disregarded and the remaining
determination shall be deemed to be the determination of the monetary term
or provision at issue.
6. Costs. Each party shall pay the costs and expenses of the broker selected
by it and each shall pay one half (1/2) of the costs and expenses of the
Third Broker.
7. Failure to Select Broker or Failure of Broker to Serve. If Tenant shall
have requested a Broker Determination and Landlord shall not have
designated a broker within the time period provided therefor above, then
Tenant's Broker shall alone make the determination of Prevailing Market
Rent and (to the extent applicable) other business terms and conditions in
writing to Landlord and Tenant within thirty (30) days after the
expiration of Landlord's right to designate a broker hereunder. If Tenant
and Landlord have both designated brokers but the two brokers so
designated do not, within a period of fifteen (15) days after the
appointment of the second broker, agree upon and designate the Third
Broker willing so to act, the Tenant, the Landlord or either broker
previously designated may request the Boston Bar Association to designate
the Third Broker willing so to act and a broker so appointed shall, for
all purposes, have the same standing and powers as though he had been
seasonably appointed by the brokers first appointed. In case of the
inability or refusal to serve of any person designated as a broker, or in
case any broker for any reason ceases to be such, a broker to fill such
vacancy shall be appointed by the Tenant, the Landlord, the brokers first
appointed or the said Boston Bar Association, as the case may be,
whichever made the original appointment, or if the person who made the
original appointment fails to fill such vacancy, upon application of any
broker who continues to act or by the Landlord or Tenant such vacancy may
be filled by the said Boston Bar Association, and any broker so appointed
to fill such vacancy shall have the same standing and powers as though
originally appointed.
Exhibit F - Page 2 of 2
EXHIBIT G
NOTICE OF LEASE
Notice is hereby given pursuant to Chapter 183, Section 4, of the Massachusetts
General Laws of the following Lease:
Landlord:
Stony Brook Associates LLC, a Delaware limited liability company
Tenant:
Netegrity, Inc, a Delaware corporation
Date of Execution of Lease:
August , 2002
Description of Lease Premises:
The entire fifth (5th) floor comprising approximately 54,383 square feet
(the "Premises"), of the building located at 000 Xxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxxx (the "Building"), situated on the land more particularly described
in Exhibit A attached hereto and incorporated herein.
Term:
The term of the Lease shall be a period of sixty (60) months commencing on
the Commencement Date.
Commencement Date:
The first to occur of (a) the day on which the work described in Section
3.1 of the Lease to be performed by Landlord is substantially completed or (b)
the date on which Tenant commences beneficial use of the Premises or any portion
thereof.
Extension Option:
Tenant has the option to extend the term of the Lease for one (1) period
of sixty (60) months as provided in Section 8.20 of the Lease.
-1-
Expansion Option:
Tenant has the right to lease (i) an additional 5,000-10,000 square feet
located on the either the first, second, third or fourth floor of the Building
upon the terms and subject to the conditions in Section 2.1.1(A) of the Lease
and (ii) an additional 10,000-25,000 square feet located on either the first,
second, third or fourth floor of the Building upon the terms and subject to the
conditions in Section 2.1.1(B) of the Lease.
Right of First Offer:
Tenant has the right to lease portions of the fourth floor of the Building
subject to the availability of the same and subject to the terms and conditions
set forth in Section 2.1.2 of the Lease.
Executed as an instrument under seal as of the day of , 2002.
STONY BROOK ASSOCIATES LLC
By: Xxxxx Road Development Associates LLC,
a managing member
By: Boston Properties Limited
Partnership, a managing member
By: Boston Properties, Inc.,
its general partner
By:
-------------------------
Name:
-----------------------
Title:
----------------------
NETEGRITY, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
-2-
COMMONWEALTH OF MASSACHUSETTS
, ss: , 2002
------------------ -----------------
Then personally appeared the above-named , as
of Boston Properties, Inc., who acknowledged the foregoing
instrument to be his free act and deed as such officer as aforesaid and the free
act and deed of said corporation as the general partner of Boston Properties
Limited Partnership as managing member of Xxxxx Road Development Associates LLC
as managing member of Stony Brook Associates LLC, before me,
----------------------------------
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
, ss: , 2002
------------------ -----------------
Then personally appeared the above-named , as
of Netegrity, Inc., who acknowledged the foregoing instrument
to be his/her free act and deed as such officer as aforesaid and the free act
and deed of said corporation, before me,
----------------------------------
Notary Public
My Commission Expires
-3-
