Exhibit 00.0
XXXXXXXXX XXXXX XX
XXXXXXX, XXXXXXXXXXXXX
LEASE
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 Reservoir Place II and with an
address at 0000 Xxxxxxx 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:
DATE OF LEASE: January 18, 2000
LANDLORD: Boston Properties Limited Partnership, a Delaware
limited partnership, the general partner of which is
Boston Properties, Inc., a Delaware corporation
LANDLORD'S ORIGINAL c/o Boston Properties, Inc.
ADDRESS: 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
TENANT: Advanced Lumitech, Inc.
TENANT'S ORIGINAL 00 Xxxx Xxxx Xxxxxx
ADDRESS: Xxxxxxx, XX 00000
TENANT'S CONSTRUCTION
REPRESENTATIVE: _________________
COMMENCEMENT DATE: See Section 2.4
RENT COMMENCEMENT
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DATE: The earlier of (x) February 1, 2000 or (y) the date
upon which Tenant commences to use the Premises for
the Permitted Use
TERM OR LEASE TERM
(SOMETIMES CALLED
THE ORIGINAL TERM): Twenty-Four (24) calendar months (plus the partial
month, if any, immediately following the
Commencement Date), unless extended or sooner
terminated as provided in this Lease.
EXTENSION OPTION: Not applicable
THE SITE: That certain parcel of land located on Trapelo Road,
Waltham, Middlesex County, Massachusetts, being more
particularly described in Exhibit A attached hereto.
THE BUILDING: The Building known as Reservoir Place II, and
numbered 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx,
located on the site and containing the Total
Rentable Floor Area set forth below.
THE ADDITIONAL BUILDING: The other Building known as Reservoir Place I
located on the Site and containing the Total
Rentable Floor Area set forth below.
THE BUILDINGS: The Building and the Additional Building.
THE COMPLEX: The Building and the Additional Building together
with all parking areas, garage, and structures and
the Site.
TENANT'S SPACE: A portion of the second (2nd) floor of the Building
in accordance with the floor plan annexed hereto as
Exhibit D and incorporated herein by reference.
NUMBER OF Privileges for parking ten (10) automobiles, four
PARKING PRIVILEGES: (4) of which are located in the garage below the
Building, and six (6) of which will be located on
the outdoor surface lot.
ANNUAL FIXED RENT: During the Original Term of this Lease at the annual
rate of Eighty-Three Thousand Sixty-One and
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00/100 Dollars ($83,061.00) (being the product of
(i) 33.00 and (ii) the "Rentable Floor Area of
Tenant's Space" (hereinafter defined in this Section
1.1). The monthly installment of annual fixed rent
during the Original Term is $6,921.75.
BASE OPERATING
EXPENSES: Landlord's Operating Expenses (as hereinafter
defined in Section 2.6) for calendar year 2000,
being January 1, 2000 through December 31, 2000.
BASE TAXES: Landlord's Tax Expenses (as hereinafter defined in
Section 2.7) for fiscal tax year 2000, being July 1,
1999 through June 30, 2000.
TENANT ELECTRICITY: Initially as provided in Section 2.8 subject to
adjustment as provided in Section 2.8.
RENTABLE FLOOR AREA 2,517 square feet.
OF TENANT'S SPACE
(SOMETIMES ALSO
CALLED RENTABLE FLOOR
AREA OF THE PREMISES):
TOTAL RENTABLE FLOOR 368,257 square feet.
AREA OF THE BUILDING:
TOTAL RENTABLE FLOOR 161,734 square feet.
AREA OF THE ADDITIONAL
BUILDING:
TOTAL RENTABLE FLOOR 529,991 square feet.
AREA OF THE BUILDINGS:
PERMITTED USE: General office purposes.
INITIAL MINIMUM
LIMITS OF TENANT'S
COMMERCIAL GENERAL
LIABILITY INSURANCE: $2,000,000.00 combined single limit per occurrence
on a per location basis
CO-BROKERS: Xxxxx & Xxxxx, Inc. and Xxxxxxxxx & Xxxx Colliers
International
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SECURITY DEPOSIT: $13,843.50
1.2 Exhibits. There are incorporated as part of this Lease:
EXHIBIT A Description of Site
EXHIBIT B Tenant Plan and Working Drawing Requirements
EXHIBIT C Landlord's Services
EXHIBIT D Floor Plan
EXHIBIT E Commencement Date Agreement
EXHIBIT F Intentionally Omitted
EXHIBIT G List of Mortgages
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-THE BUILDINGS, PREMISES, TERM AND RENT
2.1 The Premises
2.1.1 Relocation of Tenant's Space
2.2 Rights To Use Common Facilities
2.2.1 Tenant's Parking
2.3 Landlord's Reservations
2.4 Habendum
2.5 Monthly Fixed Rent Payments
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2.6 Adjustment for Operating Expenses
2.7 Adjustment for Real Estate Taxes
2.8 Tenant Electricity
ARTICLE III-CONDITION OF PREMISES; TENANT ALTERATIONS
3.1 Condition of Premises
3.2 Intentionally Omitted
3.3 Tenant Alterations and Additions
3.4 General Provisions Applicable to Construction
3.5. Special Allowance
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.
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
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5.6 Assignment; Sublease
5.7 Indemnity; Insurance
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
6.1 Fire and Casualty-Termination or Restoration; Rent Adjustment
6.2 Uninsured Casualty
6.3 Eminent Domain-Termination or Restoration
6.4 Eminent Domain Damages Reserved
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
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8.6 Assignment of Rents
8.7 Surrender
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 Report and Financial Statements
8.17 Self-Help
8.18 Holding Over
8.19 Non-Subrogation
8.20 Intentionally Omitted
8.21 Security Deposit
8.22 Late Payment
8.23 Governing Law
8.24 Additional Rent
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ARTICLE II
BUILDING, PREMISES, TERM AND RENT
2.1 Landlord hereby demises and leases to Tenant, and Tenant hereby hires and
accepts from Landlord, Tenant's Space in the Building excluding exterior
faces 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.
Tenant's Space with such exclusions is hereinafter sometimes referred to
as the "Premises". The term "Building" means the Building identified on
the first page, and which is the subject of this Lease and being one of
the two (2) Buildings erected on the Site by the Landlord; 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 change of any abutting
street line and all parking areas and structures. The terms "Property" or
"Complex" means the two (2) Buildings and the Site.
2.1.1 Tenant hereby agrees with Landlord that, upon the request of Landlord made
from time to time, Tenant shall relocate from the Premises then demised to
Tenant under this Lease (the "Original Premises") to other premises (the
"Relocated Premises") within the Building and upon such relocation the
Relocated Premises shall become the premises demised under this Lease and
wherever the term "Premises" is used herein the same thereafter shall mean
and refer to the Relocated Premises. Landlord, at its sole cost and
expense, shall perform the partitioning of the Relocated Premises and
shall place the same into substantially equivalent condition to that in
which the Original Premises were in prior to such relocation, and Landlord
shall also reimburse Tenant for Tenant's reasonable out-of-pocket moving
expenses in so relocating to the Relocated Premises upon billing therefor
from Tenant, which billing shall include reasonable evidence thereof in
the form of paid invoices, receipts and the like. Tenant shall not be
required to vacate the Original Premises and to relocate to the Relocated
Premises until the Relocated Premises shall be substantially complete
subject to punch list items and items of long lead time. Upon any such
relocation the Tenant shall enter into an amendment to this Lease
confirming such relocation, but the Tenant's failure to enter into such
amendment shall not affect in any manner the relocation of the Premises
demised under this Lease from the Original Premises to the Relocated
Premises.
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2.2 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, but not in a manner or extent that would materially interfere with
the normal operation and use of the Building as a multi-tenant office
building and 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, and
elevators of the Building, and the pipes, ducts, shafts, conduits, wires
and appurtenant meters and equipment serving the Premises in common with
others, (b) the loading areas serving the Building and the common walkways
and driveways necessary for access to the Building, and (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.
Notwithstanding anything to the contrary herein, Landlord has no
obligation to allow any particular telecommunication service provider to
have access to the Building or the Premises. 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 In addition, Landlord shall provide to Tenant monthly privileges in
the number specified in Section 1.1 for the parking of automobiles,
in common with use by other tenants from time to time of the
Complex, and on a first-come, first-served basis, and 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
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, 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 reserves the right from time to time, without unreasonable
interference with Tenant's use: (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
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the central core area of the Building, above ceiling surfaces, below floor
surfaces or within perimeter walls of the Premises. Except in the case of
emergencies, Landlord agrees to use its best efforts to give Tenant
reasonable advance notice of any of the foregoing activities which require
work in the Premises.
2.4 The Term of this Lease shall be the period specified in Section 1.1 hereof
as the "Lease Term", unless sooner terminated or extended as herein
provided. If Section 1.1 provides for a fixed Commencement Date, then the
Commencement Date of the Lease Term hereof shall be such date. Otherwise,
the Lease Term hereof shall commence on, and the Commencement Date shall
be the day on which the Premises are delivered by Landlord to Tenant.
In the case where the Premises are to be delivered in their AS-IS
condition, the day on which the Premises are delivered by Landlord to
Tenant shall be the date on which the Landlord delivers the Premises to
Tenant free and clear of all other tenants and occupants.
As soon as may be convenient after the Commencement Date has been
determined, Landlord and Tenant agree to join with each other in the
execution, in the form of Exhibit E hereto, of a written Commencement Date
Agreement in which the Commencement Date and specified Lease Term of this
Lease shall be stated. If Tenant shall fail to execute such Agreement, the
Commencement Date and Lease Term shall be as reasonably determined by
Landlord in accordance with the terms of this Lease.
2.5 Tenant agrees to a to Landlord, or as directed by Landlord, at X.X. Xxx
0000, Xxxxxx. XX 00000-0000 or at such other place as Landlord shall from
time to time designate by notice, 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 on the first day of each and every
calendar month during the extension option period (if exercised), a sum
equal to one twelfth (1/12th) of the annual fixed rent as determined in
Section 8.20 for the applicable extension option period
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 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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Other charges 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
Rent Commencement Date; and other provisions of this Lease calling for
monthly payments shall be read as incorporating this undertaking by
Tenant.
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 "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) 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, workmen's
compensation insurance premiums and payroll taxes paid to, for or with
respect to all persons engaged in the operating, maintaining, managing,
insuring or cleaning of the Building or Site, water, sewer, electric, gas,
oil and telephone charges (excluding heating, ventilating and air
conditioning, electricity and utility charges separately chargeable to
tenants); 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; payments by the Landlord
to the town in which the Complex is located relating to traffic safety,
fire safety, and other governmental services and programs; 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, management, insuring 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 operating expenses if
Landlord shall have reasonably determined that the annual reduction in
operating expenses shall exceed depreciation therefor or (ii) to comply
with applicable laws, rules, regulations, requirements, statutes,
ordinances, by-laws and court decisions of all public authorities which
are now or hereafter in force (herein collectively called "Legal
Requirements"); 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 like
properties within the
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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;
and further provided, however, if Landlord reasonably concludes on the
basis of engineering estimates that a particular capital expenditure will
effect savings in other Operating Expenses, including, without limitation,
energy related costs, and that such projected savings will, on an annual
basis ("Projected Annual Savings"), exceed the annual depreciation
therefor, then and in such event the amount of depreciation for such
capital expenditure shall be increased to an amount equal to the Projected
Annual Savings; and in such circumstance, the increased depreciation (in
the amount of the Projected Annual Savings) shall be made for such period
of time as it would take to fully amortize the cost of the item in
question, together with interest thereon at the interest rate as aforesaid
in equal monthly payments, each in the amount of 1/12th of the Projected
Annual Savings, with such payment to be applied first to interest and the
balance to principal.
"Operating Expenses Allocable to the Premises" shall mean (a) the same
proportion of Landlord's Operating Expenses for and pertaining to the
Building as the Rentable Floor Area of Tenant's Space bears to the Total
Rentable Floor Area of the Building plus (b) the same proportion of
Landlord's Operating Expenses for and pertaining to the Site as the
Rentable Floor Area of Tenant's Space bears to the Total Rentable Floor
Area of the Buildings.
"Base Operating Expenses" is hereinbefore defined in Section 1.1.
"Base Operating Expenses Allocable to the Premises" means (i) the same
proportion of Base Operating Expenses for and pertaining to the Building
as the Rentable Floor Area of Tenant's Space bears to the Rentable Floor
Area of the Building plus (ii) the same proportion of Base Operating
Expenses for and pertaining to the Site as the Rentable Floor Area of
Tenant's Space bears to the Rentable Floor Area of the Buildings.
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 (a) 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, or (b) for a full
calendar year are less than Base Operating Expenses Allocable to the
Premises, or for any such fraction of a calendar year are less than the
corresponding fraction of Base Operating Expenses Allocable to the
Premises then, in the case of (a) Tenant shall pay to Landlord, as
Additional Rent, the amount of such excess, or in the case of (b) Landlord
shall
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credit eighty percent (80%) of such difference against monthly
installments of fixed rent next thereafter coming due or against any sums
then due from Tenant to Landlord under this Lease (or refund such eighty
percent (80%) if the Term has ended and Tenant has no further obligation
to Landlord). Such payments shall be made at the times and in the manner
hereinafter provided in this Section 2.6. The Base Operating Expenses
Allocable to the Premises do not include any costs in respect of
electricity and HVAC, provision for the payment of which is made in
Section 2.8 of this Lease.
Not later than one hundred 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 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 such portion of the overpayment as aforesaid if the Term
has ended and Tenant has no further obligation to Landlord).
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 Annual 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 Landlord's 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 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
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(a) for a full Tax Year exceed Base Taxes Allocable to the Premises, or
for any such fraction of a Tax Year exceed the corresponding fraction of
Base Taxes Allocable to the Premises, or (b) for a full Tax Year
subsequent to the date of full assessment are less than Base Taxes
Allocable to the Premises, or for any such fraction of a Tax Year
subsequent to the date of full assessment are less than the corresponding
fraction of Base Taxes Allocable to the Premises; then, on or before the
thirtieth (30th) day following receipt by Tenant of the certified
statement referred to below in this Section 2.7, in the case of (a) Tenant
shall pay to Landlord, as Additional Rent, the amount of such excess, or
in the case of (b) Landlord shall credit such difference against monthly
installments of fixed rent next thereafter coming due (or refund such
overpayment 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. Not later than one hundred twenty (120) 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.
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. If
during the Lease Term the Tax Year is changed by applicable law to
less than a full 12-
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month period, the Base Taxes and Base Taxes Allocable to the
Premises shall each be proportionately reduced.
(ii) "Landlord's Tax Expenses Allocable to the Premises" shall mean (a)
the same proportion of Landlord's Tax Expenses for and pertaining to
the Building as the Rentable Floor Area of Tenant's Space bears to
the Total Rentable Floor Area of the Building plus (b) the same
proportion of Landlord's Tax Expenses for and pertaining to the Site
as the Rentable Floor Area of Tenant's Space bears to the Total
Rentable Floor Area of the Buildings.
(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) "Base Taxes" is hereinbefore defined in Section 1.1.
(v) "Base Taxes Allocable to the Premises" means (i) the same proportion
of Base Taxes for and pertaining to the Building as the Rentable
Floor Area of Tenant's Space bears to the Total Rentable Floor Area
of the Building, plus (ii) the same proportion of Base Taxes for and
pertaining to the Site as the Rentable Floor Area of Tenant's Space
bears to the Total Rentable Floor Area of the Buildings.
(vi) "Real estate taxes" means all taxes and special assessments of every
kind and nature 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 (including
without limitation, if applicable, the excise prescribed by Mass
Gen. Laws (Ter Ed) Chapter 121A, Section 10 and amounts in excess
thereof paid to the City of Waltham pursuant to agreement between
Landlord and the City) 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,
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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 shall pay to Landlord, as Additional Rent, Tenant's Proportionate
Share (hereinafter defined) of the cost incurred by the Landlord in
furnishing electricity and heating, ventilating and air conditioning
("HVAC") to the Building and the Site, including common areas and
facilities and space occupied by tenants, (but expressly excluding utility
charges separately chargeable to tenants for additional or special
services), and Tenant shall pay on account thereof, at the time that
monthly installments of Annual Fixed Rent are due and payable, as
Additional Rent, an amount equal to 1/12th (prorated for any partial
month) of the amount estimated by Landlord from time to time as the
Tenant's Proportionate Share of the annual cost thereof. 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 Tenant's
Proportionate Share of the cost of furnishing electricity and HVAC to the
Building and the Site exceeds the amounts payable on account thereof, 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, Tenant's Proportionate Share of the amount
of such excess. For and with respect to the electricity and HVAC of the
Building, the Tenant's Proportionate Share shall be a fraction, the
numerator of which is the Rentable Floor Area of Tenant's Space and the
denominator of which is the Total Rentable Floor Area of the Building, and
for and with respect to the electricity for the Site the Tenant's
Proportionate Share shall be a fraction, the numerator of which is the
Rentable Floor Area of Tenant's Space and the denominator of which is the
Total Rentable Floor Area of the Buildings.
Not later than one hundred 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 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 and HVAC to the Building and the Site. 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 HVAC, and the amount remaining due from, or
overpaid by, Tenant for the year or other period covered by the statement.
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ARTICLE III
CONDITION OF PREMISES; ALTERATIONS BY TENANT
3.1 SUBSTANTIAL COMPLETION.
(A) Tenant shall accept the Premises in their AS-IS condition without any
obligation on the Landlord's part to perform any additions, alterations,
improvements, demolition or other work therein or pertaining thereto.
Tenant, at its sole cost and expense, shall perform all work necessary to
prepare the Premises for Tenant's occupancy in accordance with plans and
specifications prepared by an architect, licensed by the Commonwealth of
Massachusetts and reasonably approved by Landlord, such plans and
specifications to be subject to the reasonable approval of the Landlord.
Tenant shall submit to Landlord a detailed floor plan layout together with
working drawings (the "Tenant's Submission") for work to be performed by
Tenant to prepare the Premises for Tenant's occupancy. Such floor plan
layout and working drawings (the "Plans") shall contain at least the
information required by, and shall conform to the requirements of, Exhibit
B. Provided that the Plans contain at least the information required by,
and conform to the requirements of, said Exhibit B, Landlord's approval of
the Plans shall not be unreasonably withheld or delayed; however,
Landlord's determination of matters relating to aesthetic issues relating
to alterations or changes which are visible outside the Premises shall be
in Landlord's sole discretion. If Landlord disapproves of any Plans, then
Tenant shall promptly have the Plans revised by its architect to
incorporate all objections and conditions presented by Landlord and shall
resubmit such plans to Landlord no later than five (5) days after Landlord
has submitted to Tenant its objections and conditions. Such process shall
be followed until the Plans shall have been approved by the Landlord
without objection or condition.
Once the Plans have been approved by Landlord, Tenant, at its sole cost
and expense, shall promptly, and with all due diligence, perform the work
necessary to prepare the Premises for Tenant's occupancy as set forth on
the Plans, and, in connection therewith, the Tenant shall obtain all
necessary governmental permits and approvals for such work. All of such
work shall be performed strictly in accordance with the Plans and in
accordance with applicable Legal Requirements (as defined in Section 3.3
hereof) and Insurance Requirements (as defined in Section 3.3 hereof).
Tenant shall have such work performed by contractors, reasonably approved
by Landlord, which contractors shall provide to Landlord such insurance as
the Landlord may reasonably require. Landlord shall have the right to
provide such rules and regulations relative to the performance of such
work and any other work which the Tenant may perform under this Lease and
Tenant shall abide by all such reasonable rules and regulations and shall
cause all of its contractors to so abide. It shall be Tenant's obligation
to obtain a certificate
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of occupancy or other like governmental approval for the use and occupancy
of the Premises, and Tenant shall not open for business in the Premises
until and unless it has obtained such approval and has submitted to
Landlord a copy of the same together with waivers of lien from all of
Tenant's contractors in form adequate for recording purposes. Tenant shall
also prepare and submit to Landlord promptly after the Tenant's work is
substantially complete a set of as-built plans showing the work performed
by Tenant to the Premises.
3.2 Intentionally Omitted.
3.3 This Section 3.3 shall apply before and during the Term. 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
Insurance Requirements (as defined in this Section 3.3 hereof). 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. 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. However, Landlord's
determination of matters 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) involve or, in Landlord's opinion, might 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) will delay completion of the Premises or Building, or (c)
will require unusual expense to readapt the Premises to normal office use
on Lease termination 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 without expense to Landlord, or (d) are inconsistent, in
Landlord's judgment, with alterations satisfying Landlord's standards for
new alterations in the Building. 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,
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specifications and work conform with applicable Legal Requirements and
requirements of insurers of the Building (herein called "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 Buildings or Site or interfere with
construction or operation of the Buildings 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 $5,000,000.00 combined
single limit per occurrence on a per location basis (all such insurance to
be written in companies 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 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, result from any
alteration, addition or improvement to the Premises made by Tenant.
3.4 All construction work required or permitted by this Lease shall be done in
a good and workmanlike manner and in compliance with all applicable Legal
Requirements and Insurance Requirements now or hereafter in force. Each
party may inspect the work of the other at reasonable times and shall
promptly give notice of observed defects.
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ARTICLE IV
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 Landlord covenants:
4.1.1 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 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.
4.1.3 Subject to the escalation provisions of Section 2.6 and except as
otherwise provided in Article VI, (i) to make such repairs to the
roof, exterior walls, floor slabs and common areas and facilities as
may be necessary to keep them in 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 To provide and install, at Landlord's expense for the initial
installation (all changes thereafter at Tenant's expense), letters
or numerals on doors in the Premises to identify Tenant's official
name and Building address; all such letters and numerals shall be in
the building standard graphics and no others shall be used or
permitted on the Premises.
4.2 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
for any of the purposes in this Lease authorized, or for repairing the
Premises or any portion of the Building or Site 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
strike, lockout, breakdown, accident, order or regulation of or by any
Governmental authority, or failure of supply, or inability by the exercise
of reasonable diligence to obtain supplies, parts or employees necessary
to furnish such services, or because of war or other emergency, or for any
cause due to any act or neglect of Tenant or Tenant's servants, agents,
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employees, licensees or any person claiming by, through or under Tenant,
or other causes reasonably beyond Landlord's control, Landlord shall not
be liable to Tenant therefor, nor, except as expressly otherwise provided
in Article VI, shall Tenant be entitled to any abatement or reduction of
rent by reason thereof, nor shall the same 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.
ARTICLE V
TENANT'S COVENANTS
Tenant covenants during the term and such further time as Tenant occupies
any part of the Premises:
5.1 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 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
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 only
excepted, first removing all goods and effects of Tenant and, 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 all
alterations and additions made by Tenant and all partitions, and repairing
any 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
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the Site or to the other building caused by Tenant, Tenant's agents,
employees, contractors, sublessees, licensees, concessionaires or
invitees. Tenant shall maintain all its equipment, furniture and
furnishings in good order and repair.
5.3 Continuously from the commencement of the Term to use and occupy the
Premises for the Permitted Uses only, and not to injure or deface the
Premises, Building, the Additional 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, or inflammable fluids or chemicals, or nuisance, or the
emission from the Premises of any objectionable noise or odor, nor 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 improper,
offensive, 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.
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.
5.4 Not to obstruct in any manner any portion of the Building not hereby
leased or any portion thereof or of the other building 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
Premises; and to comply with all reasonable Rules and Regulations 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.
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5.5 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 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, and 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 Section 5.6.2 below, but subject to the provisions
of Sections 5.6.3, 5.6.4 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 any parent or subsidiary corporation of Tenant or to any
corporation into which Tenant may be converted or with which it may
merge, provided that 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. 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 an assignment or
subletting requiring Landlord's consent.
5.6.1.1 Notwithstanding the provisions of Section 5.6 above, in
the event Tenant desires to assign this Lease or to sublet
the whole (but not part) of the Premises (no partial
subletting being permitted other than as provided in
Section 5.6.1), Tenant shall notify Landlord thereof in
writing and Landlord shall have the right at its sole
option, to be exercised within thirty (30) days after
receipt of Tenant's notice, to terminate this Lease as of
a date specified in a notice to Tenant, which date shall
not be earlier than sixty (60) days nor later than one
hundred and twenty (120) days after
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Landlord's notice to Tenant; provided, however, that upon
the termination date as set forth in Landlord's notice,
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 rent and additional rent due from
Tenant through the termination date. 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 ninety (90) 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 thirty
(30) 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 whole (but not part) of 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 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 agency), or
(b) the proposed assignee or subtenant is not of good character and
reputation, or
(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
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(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 prior to such proposed subletting or
assignment; 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) the proposed subtenant or assignee is a tenant or subtenant of
any portion of the Property (or any entity affiliated or related to
a tenant or subtenant of the Property) or is (or within the previous
sixty (60) days has been) in active negotiation with Landlord or any
affiliate of Landlord for other premises in the Site or in buildings
nearby the Site.
5.6.3 Tenant shall give Landlord prior 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 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. No partial subletting shall be
permitted.
If Landlord shall consent to the proposed assignment or subletting,
as the case may be, then, in such event, Tenant may thereafter
sublease (the whole but (except in the case of a partial sublease
under Section 5.6.1) not part of the Premises) or assign pursuant to
Tenant's notice, as given hereunder; provided, however, that if such
assignment or sublease shall
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not be executed and delivered to Landlord within ninety (90) 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, one hundred percent (100%) 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
reasonable 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 and alteration
allowances) amortized over the term of the sublease or assignment.
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 permitted under Section 5.6.1 above, or consented to
under Section 5.6.2 above, that both Tenant and the assignee or
sublessee agree directly with Landlord in a separate written
instrument reasonably satisfactory to Landlord which contains terms
and provisions reasonably required by Landlord, including, without
limitation, the agreement of the assignee or sublessee to be bound
by all the obligations of the Tenant hereunder, including, without
limitation, the obligation 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) including the provisions of
Sections 5.6 through
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5.6.5 hereof, but such assignment or subletting shall not relieve
the Tenant named herein of any of the obligations of the Tenant
hereunder, Tenant shall remain fully and primarily liable therefor
and the liability of Tenant and such assignee (or subtenant, as the
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.
(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,
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) No an assignment or subletting under any of the provisions of
Sections 5.6.1 or 5.6.2 shall in any way be construed to relieve
Tenant from obtaining the express consent in writing to Landlord to
any further assignment or subletting.
5.7 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;
to maintain commercial general liability insurance or comprehensive
general liability
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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 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 workmen'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.
5.8 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 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.
Further, Tenant, at Tenant's expense, shall maintain at all times during
the Term of this Lease insurance against loss or damage covered by the
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 To permit Landlord and its agents to examine the Premises at reasonable
times 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
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writing; and to show the Premises to prospective tenants during the eleven
(11) months preceding expiration of the Term and to prospective purchasers
and mortgagees at all reasonable times.
5.10 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 To pay promptly when due all taxes which may be imposed upon Tenant's
Property in the Premises to whomever assessed.
5.12 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.
5.13 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.
ARTICLE VI
CASUALTY AND TAKING
6.1 In case during the Lease Term the Building is damaged by fire or casualty
and such fire or casualty damage cannot, in the ordinary course,
reasonably be expected to be repaired within one hundred twenty (120) days
from the time that repair work would commence as reasonably determined by
Landlord, Landlord may, at its election, terminate this Lease by notice
given to Tenant 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 Landlord shall not
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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 one hundred
fifty (150) days (and/or as to special work or work which requires long
lead time then if such work cannot reasonably be expected to be repaired
within such additional time as is reasonable under the circumstances given
the nature of the work) from the time that repair work would commence as
reasonably determined by Landlord, 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.
If the Building or any part thereof is damaged by fire or 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. 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.
Where Landlord is obligated or otherwise elects to effect restoration of
the Premises, unless such restoration is completed within one (1) year
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
eighteen (18) months from the date of the casualty or taking), Tenant
shall have the right to terminate this Lease at any
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time after the expiration of such one-year (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 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 and such fire or casualty
damage cannot, in the ordinary course, reasonably be expected to be
repaired within thirty (30) 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 thirty (30) 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 If the entire Building, or such portion of the Premises as to render the
balance (if reconstructed to the maximum extent practicable 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 or Site 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
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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 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 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 (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:
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(i) Tenant shall fail to pay any installment of the Annual 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 five (5) business days after notice from Landlord
thereof, or
(ii) Landlord having rightfully given the notice specified in
subdivision (a) above three times in any calendar year, Tenant shall
thereafter in the same calendar year fail to pay the Annual Fixed Rent,
Additional Rent or any other monetary amount due under this Lease on or
before the date on which the same become due and payable, or,
(iii) Tenant shall neglect or fail to perform or observe any other
requirement, term, covenant or condition of this Lease (not hereinabove in
this Section 7.1(a) specifically referred to) on Tenant's part to be
performed or observed and Tenant shall fail to remedy the same within
thirty (30) days after notice to Tenant specifying such neglect or
failure, or if such neglect or 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
(iv) Tenant's leasehold interest in the Premises shall be taken on
execution or by other process of law directed against Tenant; or
(v) 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
(vi) 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 sixty (60) 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 sixty (60) days (whether
or not consecutive).
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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 five (5) 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.
(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 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 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
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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 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) Landlord may elect, as an alternative, to have Tenant pay
liquidated damages, which election may be made by notice given to
Tenant at any time after the termination of this Lease under Section
7.2, above, and whether or not Landlord shall have collected any
damages as hereinbefore provided in this Article VII, and in lieu of
all other such damages beyond the date of such notice. Upon such
notice, Tenant shall promptly pay to Landlord, as liquidated
damages, in addition to any damages collected or due from Tenant
from any period prior to such notice and all expenses which Landlord
may have incurred with respect to the collection of such damages,
such a sum as at the time of such notice represents the amount of
the excess, if any, of (a) the discounted present value, at a
discount rate of 6%, of the Annual Fixed Rent, Additional Rent and
other charges which would have been payable by Tenant under this
Lease for the remainder of the Lease Term if the Lease terms had
been fully complied with by Tenant, over and above (b) the
discounted present value, at a discount rate of 6%, of the Annual
Fixed Rent, Additional Rent and other charges that would be received
by Landlord if the Premises were re- leased at the time of such
notice for the remainder of the Lease Term at the fair market value
(including provisions regarding periodic increases in Annual Fixed
Rent if such are applicable) prevailing at the time of such notice
as reasonably determined by Landlord.
(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 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
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grant concessions or free rent to the extent that Landlord considers
advisable or necessary to re-let the same and (ii) may make such
alterations, repairs and decorations 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, repairs and
decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be liable in
any way whatsoever for failure to re-let the Premises, or, in the event
that the Premises are re-let, for failure to collect the rent under
re-letting. Tenant, for itself and any and all persons claiming through or
under Tenant, including its creditors, upon the termination of this Lease
and of the term of this Lease in accordance with the terms hereof, or in
the event of entry of judgment for the recovery of the possession of the
Premises in any action or proceeding, or if Landlord shall enter the
Premises by process of law or otherwise, hereby waives any right of
redemption provided or permitted by any statute, law or decision now or
hereafter in force, and does hereby waive, surrender and give up all
rights or privileges which it or they may or might have under and by
reason of any present or future law or decision, to redeem the Premises or
for a continuation of this Lease for the term of this Lease hereby demised
after having been dispossessed or ejected therefrom by process of law, or
otherwise.
(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.
7.2 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
MISCELLANEOUS
8.1 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
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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 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. Further,
the acceptance by Landlord of Annual Fixed Rent, Additional Rent or any
other charges paid by Tenant under this Lease shall not be or be deemed to
be a waiver by Landlord of any default by Tenant, whether or not Landlord
knows of such default, except for such defaults as to which such payment
relates.
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 The specific remedies to which Landlord 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 such party may be lawfully entitled
in case of any breach or threatened breach by Tenant of any provisions of
this Lease. In addition to the other remedies provided in this Lease,
Landlord shall be entitled to the restraint by injunction of the violation
or 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 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, without hindrance or ejection by any
persons lawfully claiming under Landlord to
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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
only with respect to breaches occurring during Landlord's or Landlord's
successors' respective ownership of Landlord's interest hereunder,
including ground or master lessees, to the extent of their respective
interests, as and when they shall acquire same and then only for so long
as they shall retain such interest.
Further, Tenant specifically agrees to look solely to Landlord's then
equity interest in the Building 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 lost profits suffered by Tenant from whatever cause or loss of
profits or the like. In the event that Landlord shall be determined to
have acted unreasonably in withholding any consent or approval under this
Lease, the sole recourse and remedy of the Tenant in respect thereof shall
be to specifically enforce Landlord's obligation to grant such consent or
approval, and in no event shall the Landlord be responsible for any
damages of whatever nature in respect of its failure to give such consent
or approval nor shall the same otherwise affect the obligations of the
Tenant under this Lease or act as any termination of this Lease.
8.5 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 mortgaged premises,
no 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 (including a reasonable
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time to obtain possession of the premises if the mortgagee or ground
lessor elects to do so) shall be 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). If any mortgage is listed on Exhibit G then
the same shall constitute notice from the holder of such mortgage for the
purposes of this Section 8.5. Further no Annual Fixed Rent or Additional
Rent may be paid by Tenant more than thirty (30) days in advance except
with the prior written consent of all holder(s) of such mortgages and
ground leases, and any such payment without such consent shall not be
binding on such holder(s).
8.6 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.
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8.7 (A) 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,
provided, however, that the foregoing shall not apply to the delivery of
keys to Landlord or its agents in its (or their) capacity as managing
agent or for purpose of emergency access. In any event, however, 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.
(B) Upon the expiration or earlier termination of the Lease Term, Tenant
shall surrender the Premises to Landlord in the condition as required by
Sections 3.3 and 5.2, first removing all goods and effects of Tenant and
completing such other removals as may be permitted or required pursuant to
Section 5.2.
8.8 (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; and in
the event any claim is made against the Landlord relative to dealings by
Tenant with brokers other than the Brokers, if any, designated in Section
1.1 hereof, 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
broker, person or firm, if any, designated in Section 1.1 hereof; and in
the event any claim is made against the Tenant relative to dealings by
Landlord with brokers other than the Brokers, if any, designated in
Section 1.1 hereof, 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 Broker, if any, designated in Section 1.1
hereof.
8.9 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.
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8.10 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, but has reference only to those
instances in which Landlord may have later given consent to a particular
assignment as required by the provisions of Article V hereof.
8.11 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.
8.12 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).
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.
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Any notice given by an attorney on behalf of Landlord or by Landlord's
managing agent shall be considered as given by Landlord 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 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 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 to
explain, modify, amplify or aid in the interpretation, construction or
meaning of the provisions of this Lease.
8.15 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 in the case of a future mortgage 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. Tenant hereby appoints such
mortgagee (from time to time) as Tenant's attorney-in-fact to execute such
subordination upon default of Tenant in complying with such mortgagee's
(from time to time) request. 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. 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
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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 for the Building or Complex, 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 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, within ten (10) days after the request of Landlord made
from time to time, will 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 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, including, but not limited to financial statements for the past
three (3) years. 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 If Tenant shall at any time default 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 or base rate in Boston as set by BankBoston, N.A.,
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.
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8.18 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) 200% 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 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 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. This waiver of rights by Tenant shall
apply to, and be for the benefit of, Landlord's managing agent.
8.20 Intentionally Omitted.
8.21 If; in Section 1.1 hereof, a security deposit is specified, Tenant agrees
that the same will be paid upon execution and delivery of this Lease, and
that Landlord shall hold the same, throughout the term of this Lease
(including any extension thereof), as security for the performance by
Tenant of all obligations on the part of Tenant to be kept and performed.
Landlord shall have the right from time to time without prejudice to any
other remedy Landlord may have on account thereof, to
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apply such deposit, or any part thereof; to Landlord's damages arising
from any default on the part of Tenant. If Landlord so applies all or any
portion of such deposit, Tenant shall within seven (7) days after notice
from Landlord deliver cash to Landlord in an amount sufficient to restore
such deposit to the full amount stated in Section 1.1. 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, 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 and
surrender possession of the Premises by Tenant to Landlord in the
condition required in the Lease at such time. While Landlord holds such
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. If
Landlord conveys Landlord's interest under this Lease, the deposit, or any
part thereof not previously applied, may be turned over by Landlord to
Landlord's grantee, and, if so turned over, Tenant agrees to look solely
to such grantee for proper application of the deposit in accordance with
the terms of this Section 8.21, and the return thereof in accordance
herewith, and Landlord shall have no further liability therefor.
Neither the holder of any mortgage nor the lessor in any 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 lessor.
8.22 If Landlord shall not have received any payment or installment of Annual
Fixed Rent or Additional Rent on or before the date (the "Due Date") on
which the same first becomes payable under this Lease, the amount of such
payment or installment shall bear interest from the Due 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 BankBoston, N.A.
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 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.
8.24 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 ten (10)
days after written demand by
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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.
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EXECUTED as a sealed instrument in two or more counterparts each of which
shall be deemed to be an original.
WITNESS: LANDLORD:
BOSTON PROPERTIES LIMITED
PARTNERSHIP
By BOSTON PROPERTIES, INC.,
Its general partner
/s/ X. X. Xxxxxx By /s/ Xxxxxx X. Xxxxxx
--------------------------- -----------------------------
Name XXXXXX X. XXXXXX
-----------------------------
Title Vice President
-----------------------------
TENANT:
ADVANCED LUMITECH, INC.
By /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name XXXXXXX XXXXXXX
-----------------------------
Title PRESIDENT
-----------------------------
(OR VICE PRESIDENT)
-----------------------------
HERETO DULY AUTHORIZED
ATTEST:
/s/ Xxxxxxx Xxxxxxx
---------------------------
Name XXXXXXX XXXXXXX By /s/ Xxxxxxx Xxxxxxx
---------------------- -----------------------------
Title SECRETARY Name XXXXXXX XXXXXXX
---------------------- -----------------------------
(ASSISTANT SECRETARY) Title TREASURER
-----------------------------
(OR ASSISTANT TREASURER)
-----------------------------
HERETO DULY AUTHORIZED
(CORPORATE SEAL) /s/ Xxxx X. Xxxxx
-----------------------------
Name Xxxx X. Xxxxx
-----------------------------
Title Attorney for Advanced Lumitech, Inc.
-----------------------------
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EXHIBIT A
Description
A parcel of land (the "Land") in Waltham and Lexington, Middlesex County,
Massachusetts containing 34.372 acres and shown on that certain plan entitled
"Plan of Land in Waltham and Lexington, Middlesex Co., Mass.", dated March
6,1986, prepared by Land Surveys Incorporated, recorded with the Middlesex South
District Registry of Deeds (the "Registry") in Book 17090, Page End (the
"Plan"), bounded and described as follows:
EASTERLY by the Northern Circumferential Highway (Route 128) by
two lines measuring 1,067.16 feet and 127.72 feet;
SOUTHEASTERLY
AND SOUTHERLY by the ramp to Trapelo Road and Trapelo Road by five
lines measuring 309.05 feet, 262.57 feet, 122.01 feet,
78.18 feet, and 8.38 feet;
NORTHWESTERLY by land N/F Reservoir Place Realty Trust, 110 feet;
SOUTHERLY by land N/F Reservoir Place Realty Trust, 96.07 feet,
and by land N/F Xxxxxxx and Xxxxxx Xxxxxx, 99 feet;
NORTHWESTERLY by land N/F Xxxxxx X. and Xxxxxx X. Xxxxx, 105 feet;
SOUTHERLY 62 feet,
SOUTHEASTERLY 39.27 feet and 160 feet, and
NORTH-EASTERLY 39.27 feet, all by land of N/F Xxxxxx P, and Xxxxxx X.
Xxxxx;
SOUTHWESTERLY by Xxxxxxx Xxxx, 00 feet;
NORTHWESTERLY 39.27 feet and 100 feet, and
SOUTHWESTERLY 102.57 feet, all by land N/F Xxxxxxx and Xxxxxx Xxxx;
NORTHWESTERLY 275 feet, and
SOUTHWESTERLY 122.35, by land N/F Xxxxxx X. and Xxxxxxx X. Xxxxxxxx;
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NORTHWESTERLY by two lines measuring 235.15 feet and 284.27 feet, by
lands N/F Xxxxxx X. and Xxxxxxx X. Xxxxxxxx, Xxxxx Xxxx,
N/F Xxxxxxx X. Senior, Jr., N/F Xxxxxx and Xxxxxxx
Xxxxx, N/F Xxxxxxx X. and Xxxxxxx Xxxxxx, and N/F Xxxxx
X. Xxxxxx;
WESTERLY by five lines measuring 580.06 feet, 25 feet, 128.21
feet, 344.66 feet and 9.12 feet, by lands N/F Xxxxx P,
Xxxxxx, N/F Xxxx X. and Xxxxx Xxxxxxx, N/F Xxxxxxxxx and
Xxxx Xxxxxxx, N/F J.S.C. Realty Trust, N/F Santo and
Xxxxxxxxx Xxxxxxx, N/F Xxxx Xxxx and Xxxxxxx Morn, N/F
Xxxxx X. Xxxxxx, Xxxxxxxxx Xxxx, N/F Xxxxxxx X. and
Xxxxxx X. Xxxxxxx, and the City of Waltham;
NORTHEASTERLY 692.16 feet by land N/F The C-R Trust;
EASTERLY 137.39 feet by Route 128;
SOUTHWESTERLY by two lines measuring 336.67 feet and 286.94 feet by
land N/F Tracer Lane Trust;
EASTERLY by two lines measuring 506.14 feet and 325.94 feet, by
land N/F Tracer Lane Trust;
NORTHERLY 45 feet,
WESTERLY 27 feet, and
NORTHERLY 555.01 feet, all by land N/F Tracer Lane Trust.
Together with the right, in common with others, to use Tracer Lane, a
private way, throughout its entire length over the Land, for access to and from
Trapelo Road, a public way, and for all other purposes for which public ways are
normally used in the City of Waltham and the Town of Lexington, as shown on the
Plan.
Together with the appurtenant right in common with others to use that
portion of the Land located within the easement granted to Boston Edison Company
by a Grant of Easement dated October 2, 1946 and recorded in the Registry in
Book 7098, Page 118, for all purposes allowed under an Agreement with Boston
Edison Company and Albamont Properties, Inc. dated January 31, 1975 and recorded
in the Registry in Book 12771, Page 538.
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Together with the appurtenant right and easement, in common with others,
to discharge surface water contained in an Easement Indenture among Tracerlab,
Inc. et al. dated January 9, 1957 and recorded in the Registry in Book 8892,
Page 112.
Together with the appurtenant rights and easements, in common with others,
granted to the owner of the Land in (a) an Indenture among Boston Edison Company
et al. Dated September 19, 1966 and recorded in the Registry in Book 11258, Page
79, (b) a Utilities Maintenance Agreement among LFE Inc. et al dated September
19, 1966 and recorded in the Registry in Book 11258, Page 92, and (c) an
Easement Indenture among 128 Realty Corporation et al. dated September 19, 1966
and recorded in the Registry in Book 11258, Page 061.
Together with the right and easement, in common with others, granted the
owner of the Land in an Agreement dated May 12,1975 and recorded in the Registry
in Book 12892, Page 410.
Together with the right to terminate the Agreement between Xxxxxxx X. Xxxx et
ux. dated April 9,1974 and recorded in the Registry in Book 12627, Page 235.
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EXHIBIT B
TENANT PLAN AND WORKING DRAWING REQUIREMENTS
1. Floor plan indicating location of partitions and doors (details required of
partition and door types).
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. Reflected ceiling plan showing layout of standard ceiling and lighting
fixtures. Partitions to be shown lightly with switches located indicating
fixtures to be controlled.
5. Locations and details of special ceiling conditions, lighting fixtures,
speakers, etc.
6. Location and heat load in BTU/Hr. of all special air conditioning and
ventilating requirements and all necessary HVAC mechanical drawings.
7. Location and details of special structural requirements, e.g., slab
penetrations and areas with floor loadings exceeding a live load of 70 lbs./s.f.
8. Locations and details of all plumbing fixtures; sinks, drinking fountains,
etc.
9. Location and specifications of floor coverings, e.g., vinyl tile, carpet,
ceramic tile, etc.
10. Finish schedule plan indicating wall covering, paint or paneling with paint
colors referenced to standard color system.
11. Details and specifications of special millwork, glass partitions, rolling
doors and grilles, blackboards, shelves, etc.
12. Hardware schedule indicating door number keyed to plan, size, hardware
required including butts, latchsets or locksets, closures, stops, and any
special items such as thresholds, soundproofing, etc. Keying schedule is
required.
13. Verified dimensions of all built-in equipment (file cabinets, lockers, plan
files, etc).
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14. Location of any special soundproofing requirements.
15. 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.
16. Drawing submittal shall include one sepia and one blue line print of each
drawing.
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EXHIBIT C
LANDLORD SERVICES
RESERVOIR PLACE
I. CLEANING:
Cleaning and janitor services as provided below:
A. OFFICE AREAS:
Daily: (Monday through Friday, inclusive, holidays excepted).
1. Empty 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.
Weekly:
1. Dust coat racks and the like.
2. Spot clean entrance doors, light switches and doorways.
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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.
e) dust all ventilating, air conditioning, louvers and
grills.
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,
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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 three (3) 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 useable
floor area served, and a combined lighting and standard electrical
load of 3.0 xxxxx per square foot of useable floor area. In the
event Tenant introduces into
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the Premises personnel or equipment which overloads the system's
ability to adequately perform its proper functions, Landlord shall
so notify Tenant in writing and supplementary system(s) may be
required and installed by Landlord at Tenant's expense, if within
fifteen (15) days Tenant has not modified its use so as not to cause
such overload.
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 78
degrees Fahrenheit when outdoor conditions are 91 degrees
Fahrenheit drybulb and 73 degrees Fahrenheit wetbulb.
ii) Heating season minimum room temperature of 70 degrees
Fahrenheit when outdoor conditions are 6 degrees Fahrenheit
drybulb.
B. Landlord shall provide heating, ventilating and air conditioning as
normal seasonal charges may require during Normal Building Operating
Hours (8:00 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 3.0
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 3.0 xxxxx per square foot.
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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.
V. WATER:
Provide hot water for lavatory purposes and cold water for drinking,
lavatory and toilet purposes.
VI. CARD ACCESS SYSTEM:
Landlord will provide a card access system at one entry door of the
building.
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EXHIBIT D
PREMISES
[GRAPHIC: FLOOR PLAN]
2,517 RSF
RESERVOIR PLACE II
1601 TRAPELO ROAD - SECOND FLOOR [GRAPHIC]
WALTHAM, MA
EXHIBIT F
INTENTIONALLY OMITTED
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EXHIBIT G
LIST OF MORTGAGEES
Security Agreement and Mortgage Deed, dated 10/30/96 recorded in the South
Middlesex Registry of Deeds at Book 26791, Page 101, affected by Amended and
Restated Mortgage Deed from Landlord to Teachers Insurance and Annuity
Association of America, dated 11/3/98 recorded with said Deeds, said mortgagee
having an address Attn: Xxxx Xxxxxx, Xx. Investment Analyst, 000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000.
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