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Exhibit 10-3
LEASE
DATED: FEBRUARY 8, 1996
MASSACHUSETTS INSTITUTE OF TECHNOLOGY, LESSOR
ANALOG DEVICES, INC., LESSEE
00 XXXXXX XXXXXX, XXXXXXXXX, XXXXXXXXXXXXX
TABLE OF CONTENTS
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1.0 Parties and Premises................................... 1
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1.1 Parties and Premises.............................. 1
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1.2 Common Areas...................................... 1
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1.3 Lessee's Option to Lease Additional Space......... 2
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1.4 Lessee's Right of First Refusal................... 2
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1.5 Signs............................................. 2
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2.0 Term .................................................. 3
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2.1 Term; Commencement Date........................... 3
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2.2 Extension Option.................................. 3
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3.0 Rent .................................................. 3
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3.1 Payment of Rent................................... 3
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3.2 Computation of Basic Rent......................... 4
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4.0 Permitted Uses......................................... 5
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5.0 Taxes; Operating Expenses.............................. 6
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5.1 Taxes............................................. 6
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5.2 Operating Expenses................................ 7
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5.3 Payment of Taxes and Operating Expenses........... 8
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5.4 Abatement of Taxes................................ 9
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6.0 Meters for Utilities................................... 10
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7.0 Insurance.............................................. 10
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7.1 Public Liability Insurance........................ 10
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7.2 Casualty Insurance................................ 10
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7.3 Certificate of Insurance.......................... 10
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7.4 Lessor's Insurance................................ 11
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7.5 Waiver of Subrogation............................. 11
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7.6 Waiver of Rights.................................. 12
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8.0 Assignment and Subletting.............................. 12
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9.0 Parking................................................ 15
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10.0 Late Payment of Rent................................... 15
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11.0 Lessee's Covenants..................................... 15
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12.0 Casualty and Eminent Domain............................ 21
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12.1 Substantial Taking................................ 21
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12.2 Partial Taking.................................... 21
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12.4 Substantial Casualty.............................. 22
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12.5 Repair and Restoration............................ 23
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13.0 Defaults; Events of Default; Remedies.................. 23
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13.1 Defaults; Events of Default....................... 23
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13.2 Termination....................................... 24
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13.3 Survival of Covenants............................. 25
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13.4 Damages........................................... 25
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13.5 Right to Relet.................................... 26
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13.6 Right to Equitable Relief......................... 27
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13.7 Right to Self Help................................ 27
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13.8 Further Remedies.................................. 27
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14.0 Construction........................................... 28
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15.0 Lessor's Right of Entry................................ 28
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16.0 Real Estate Broker..................................... 28
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17.0 Notices................................................ 28
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18.0 No Waivers............................................. 29
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19.0 Ground Leases; Mortgages............................... 29
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19.1 Rights of Ground Lessors and Mortgagees........... 29
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19.2 Lease Subordinate................................. 30
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20.0 Notice of Lease; Estoppel Certificates................. 31
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21.0 Holding Over........................................... 31
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22.0 Force Majeure.......................................... 31
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23.0 Entire Agreement....................................... 31
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24.0 Successors and Assigns................................. 32
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25.0 Applicable Law, Severability and Construction.......... 32
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26.0 Authority.............................................. 32
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27.0 Work to be Performed by Polaroid Corporation........... 32
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EXHIBIT A - PREMISES........................................ 34
EXHIBIT B - WORK LETTER..................................... 35
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LEASE
Dated: February 8, 1996
1.0 Parties and Premises.
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1.1 PARTIES AND PREMISES. MASSACHUSETTS INSTITUTE OF
TECHNOLOGY ("Lessor") hereby LEASES unto ANALOG DEVICES,
INC. ("Lessee"), the following premises:
The entire basement, first and second floors, containing
68,135 square feet of rentable area (the "Premises") of
the building known as and numbered 00 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx, containing a total of 117,130
rentable square feet (the "Building"), which is located
on the parcel of land described on EXHIBIT A attached
hereto (the "Land"),
together with the benefit of, and subject to (as the case may
be) all rights, easements, covenants, conditions,
encumbrances, encroachments and restrictions of record as of
the date of this Lease. Lessor shall have the right, without
the necessity of obtaining Lessee's consent thereto or
joinder therein, to grant, permit, or enter into during the
term of this Lease such additional rights, easements,
covenants, conditions, encumbrances, encroachments and
restrictions with respect to the Land as Lessor may deem
appropriate, PROVIDED THAT no such rights, easements,
covenants, conditions, encumbrances, encroachments or
restrictions shall materially affect Lessee's use of the
Premises for the "Permitted Uses" (as defined in Section 4.0
below).
Lessor hereby reserves the right to use the first floor lobby
and service and freight elevators in the Building in common
with the Lessee and the right to pass through the Premises as
reasonably necessary for access to such elevators in
accordance with Section 15 below.
Lessor hereby further reserves the right to maintain, use,
repair and replace pipes, ducts, wires, meters and any other
equipment, machinery, apparatus and fixtures located within
the Premises and serving other parts of the Building. Lessee,
its employees and invitees shall have access to the Premises
at all times, subject to Lessor's reasonable security
procedures.
1.2 COMMON AREAS. Lessor also grants to Lessee, and
Lessee's invitees, the right, in common with others
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entitled thereto, to use for the purposes for which they were
designed, the common facilities of the Building, including
but not limited to, all entrances, elevator foyers, air
shafts, elevator shafts and elevators, stairwells and stairs,
passenger elevators, freight elevator, loading bays, and the
"Parking Area" (as defined in Section 9.0 below)
(collectively, the "Common Areas"). Lessee shall also have
the right to maintain gas storage tanks and associated piping
outside the Building on the Land for gas to be delivered to
the Premises, in compliance with the terms and conditions set
forth in this Lease.
1.3 LESSEE'S OPTION TO LEASE ADDITIONAL SPACE. Provided that both
(i) an "Event of Default" (as defined in Section 13.1 below)
has not occurred prior to the day on which Lessee purports to
exercise the Expansion Option or prior to the first date on
which the Expansion Space will be occupied, and (ii) the
Lessee named herein is actually occupying substantially the
entire Premises as of each of such dates, Lessee shall have
the right and option ("Expansion Option") to lease either the
entire third floor or the entire third and fourth floors of
the Building ("Expansion Space"); PROVIDED THAT Lessee's
occupancy and obligation to pay Rent therefor must commence,
if at all, during the first year of the Initial Term. This
option may be exercised by the Lessee by notice thereof to
Lessor, dispatched not less than sixty (60) days prior to the
date on which Lessee will take occupancy of the additional
space, and upon the exercise of this option, the Premises
shall include such space. Except for the change in Basic Rent
as described in Section 3.2 below, all of the terms and
conditions of this agreement shall apply in respect to the
additional space. The parties agree that the third floor
contains 24,030 square feet of rentable space and that the
fourth floor contains 24,965 square feet of rentable space.
1.4 LESSEE'S RIGHT OF FIRST REFUSAL. Notwithstanding the failure
of the Lessee to exercise its option under Section 1.3, if,
during the Term, Lessor decides to occupy the third and/or
fourth floors of the Building or to offer the space to a
third party, Lessee shall have a right of first refusal to
lease either the entire third floor or the entire third and
fourth floors of the Building for the Rent per Lease Year or
portion thereof which would have been due and payable for
such space and subject to the same conditions and on the same
terms and conditions as if the option had been exercised.
1.5 SIGNS. Lessee shall have the right to maintain one or
more signs on the Premises; PROVIDED THAT all signs
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shall comply with applicable Legal Requirements (as defined
below) and shall have been approved by Lessor in advance
which approval shall not be unreasonably withheld or delayed.
2.0 Term; Commencement Date; Extension Options.
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2.1 TERM; COMMENCEMENT DATE. The initial term of this Lease (the
"Initial Term") shall commence on February 13, 1996, the
"Commencement Date," and expire on the day immediately
preceding the fifth anniversary thereof, unless sooner
terminated as hereinafter provided. For purposes of this
Lease, the phrase "Term" shall mean collectively (a) the
Initial Term, and (b) if Lessee duly exercises one or more
"Extension Option(s)", the "Extension Term" (as these phrases
are defined in Section 2.2 below).
2.2 EXTENSION OPTIONS. Provided that both (i) an "Event of
Default" (as defined in Section 13.1 below) has not occurred
prior to the day on which Lessee purports to exercise the
Extension Option or prior to the first day of the Extension
Term, and (ii) the Lessee named herein is actually occupying
substantially the entire Premises as of each of said dates,
Lessee shall have the option ("Extension Option") to extend
the Lease Term of this Lease for two additional periods of
five (5) years each (the "Extension Term(s)"), unless sooner
terminated as hereinafter provided, subject to all the terms
of this Lease except for the change in Basic Rent as provided
in Section 3.2 of this Lease.
Lessee shall exercise an Extension Option, if at all, by
giving written notice of exercise to Lessor not earlier than
twelve (12) months prior to, nor later than six (6) months
prior to, the last day of the Initial Lease Term or the first
Extension Term as applicable. If Lessee fails to give such
notice to Lessor within such time, Lessee shall be deemed to
have waived the right to exercise the applicable Extension
Option.
3.0 Rent.
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3.1 PAYMENT OF RENT. Lessee shall pay Lessor, without offset or
deduction and without previous demand therefor, as items
constituting rent (collectively, "Rent"):
(a) Basic rent ("Basic Rent") at the rate hereinafter set
forth, in equal monthly installments, in advance,
commencing three months after the Commencement Date (the
"Rent Commencement Date") and continuing thereafter on
the first day of each
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calendar month or portion thereof during the Term. Basic
Rent shall be PRO-RATED for partial months occurring at
the beginning or the end of the Term, and, with respect
to the Additional Space, for any partial Lease Year at
the beginning of the Term; and
(b) All other costs, charges, or expenses which Lessee
in this Lease agrees to pay, or which Lessor pays
or incurs as the result of a default by Lessee
hereunder, including any penalty or interest which
may be added for nonpayment or late payment thereof
as provided in this Lease (collectively,
"Additional Rent"). All recurring payments of
Additional Rent, such as payment on account of
"Operating Expenses" (as such term is hereinafter
defined), shall be due and payable on the same day
on which Basic Rent is due, except that "Taxes" (as
such term is hereinafter defined) shall be due and
payable in installments not later than ten (10)
days before Lessor is obliged to make installment
payments to the City of Cambridge without incurring
interest and penalties but not sooner than ten (10)
days after receipt by Lessee of written demand
therefor from Lessor accompanied by a copy of the
current tax xxxx. Unless otherwise specifically
provided in this Lease, all non-recurring items
constituting Additional Rent shall be due and
payable within thirty (30) days after demand
therefor by Lessor.
All payments shall be made to Lessor or such agent, and at
such place, as Lessor shall, from time to time, in writing
designate, the following being now so designated:
Xxxxxxxx & Grew Inc. as agent for
Massachusetts Institute of Technology
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
3.2 COMPUTATION OF BASIC RENT. Basic Rent shall be due and
payable hereunder during the Initial Term and any Extension
Term in the amount of $1,000,008 per Lease Year, in
installments of $83,334 per month, except that Basic Rent for
the first Lease Year shall be $750,006 because of the three
month rent free period at the beginning of the Initial Term;
PROVIDED THAT, if Lessee exercises its option to lease
additional space (the "Additional Space") under Section 1.3
or its right of first refusal therefor under Section 1.4,
Basic Rent shall be increased by $240,300 per Lease Year if
exercised with respect to the third floor only or by
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$489,950 per Lease Year if exercised with respect to both the
third and fourth floors, commencing on the date of occupancy
and subject to adjustment during any Extension Term as
follows:
for each Extension Term annual Basic Rent applicable to
the Additional Space shall be adjusted at the
commencement date as follows:
(i) The index used for calculation of any adjustment
shall be the official Consumer's Price Index, Boston
Area, all items, (1982-1984 = 100) published by the
Bureau of Labor Statistics, U.S. Department of Labor, or
its successor index should the Department of Labor cease
publishing the CPI.
(ii) Annual Basic Rent applicable to the Additional
Space for each Extension Term shall be the annual Basic
Rent therefor for the preceding five years of the Term
plus an additional amount as determined in paragraph
(iii).
(iii) The index for the month of November immediately
preceding the termination of the Initial Term or the
First Commencement Term as applicable shall be compared
to the index for the same month immediately preceding
the commencement of such five year term. The numerator
shall be the index for the later year and the
denominator shall be the index for the earlier year. The
result shall be multiplied by the current annual Basic
Rent for the Additional Space to determine the new
annual Basic Rent therefor.
As used in this Lease, "Lease Year" means the twelve (12)
month period commencing on the Commencement Date, or a
successive twelve (12) month period included in the Term
commencing on an anniversary of that day, but if the
expiration of the Term or the earlier termination of the
Lease does not coincide with the termination of such a twelve
(12) month period, the term "Lease Year" shall mean the
portion of such twelve (12) month period before such
expiration or termination.
4.0 PERMITTED USES. The Premises shall be used for the following
purposes (the "Permitted Uses") only and for no other:
light manufacturing (including, without limitation,
manufacturing, processing, assembly and packaging of
electronic components), research and development and
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office uses; in each case to the extent permitted as a matter
of right under the zoning ordinance of the City of Cambridge,
Massachusetts.
5.0 Taxes; Operating Expenses.
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5.1 TAXES. Lessee shall pay as Additional Rent its pro rata share
of all taxes, special or general assessments and other
impositions and charges imposed by governmental authorities
of every kind and nature whatsoever, extraordinary as well as
ordinary and each and every installment thereof which shall
or may during the Term be charged, levied, laid, assessed,
imposed, become due and payable or become liens upon or for
or with respect to the Land or any part thereof and the
Building or the Premises, or appurtenances or equipment owned
by Lessor thereon or therein or any part thereof, or on this
Lease, and any tax based on a percentage, fraction or
capitalized value of the Rent (whether in lieu of or in
addition to the taxes hereinbefore described) (collectively,
"Taxes"); provided however that:
(a) if, by law, any Taxes may at the option of the
taxpayer be paid in installments, Lessee may pay
the same in such installments over such period as
the law allows, and Lessee shall only be liable for
such installments as shall become due during the
Term of this Lease, PROVIDED THAT the full amount
of all Taxes attributable to the Term shall be paid
by Lessee in the event of an earlier termination of
this Lease due to a default of Lessee; and
(b) all Taxes for the municipal fiscal years in which the
Term of this Lease shall begin and end shall be
apportioned so that Lessee shall pay only those portions
thereof which correspond with the portion of said year
as is within the Term hereby demised.
Taxes shall not include inheritance, estate, excise,
succession, transfer, gift, franchise, income, gross receipt,
or profit taxes except to the extent such are in lieu of or
in substitution for Taxes as now imposed on the Building, the
Land, the Premises or this Lease. Lessee's share of Taxes
shall be computed as follows: (i) with respect to the
Building and the land under the Building, a percentage equal
to the ratio of the number of rentable square feet occupied
by the Tenant in the Building to the number of rentable
square feet in the Building; and (ii) with respect to the
remainder of the Land, a percentage equal to the ratio of the
number of parking spaces allocated to the Premises under
Section 9 to the aggregate number of parking spaces on the
Premises. The parties hereby agree that rentable square
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feet for the Premises, the Building and the third and fourth
floors of the Building are as set forth in Sections 1.1 and
1.3 above. If Lessee takes occupancy of Additional Space
under its option or right of first refusal set forth in
Section 1.3 and Section 1.4 during the course of any year of
the Term, Taxes for such year shall be determined separately
for each partial year before and after the date of occupancy.
5.2 OPERATING EXPENSES. Lessee shall pay as Additional Rent
Lessee's share as reasonably determined by the Lessor of all
expenses, costs, and disbursements of every kind and nature
(collectively, "Operating Expenses") which Lessor shall pay
or become obligated to pay in connection with the ownership,
operation and maintenance of the Building or the Land,
including all facilities in operation on the Commencement
Date and such additional facilities in subsequent years as
may be determined by Lessor to be necessary or beneficial for
the operation of the Building or the Land or the provision of
services to lessees, including, but not limited to:
(a) all salaries, wages, fringe benefits, payroll taxes
and workmen's compensation insurance premiums
related thereto of and for employees engaged in the
operation of the Building and the Land (with
respect to employees who are engaged in the
operation of other properties as well as the
Building and the Land, these amounts shall be
pro-rated on the basis of the relative amount of
time spent by such employees on the various
properties);
(b) painting, repairs, maintenance and cleaning of all
Common Areas;
(c) utilities (including, without limitation, electricity,
steam, water, sewer and gas) for all interior Common
Areas and lighting of exterior areas and the "Parking
Area" (as defined in Section 9.0 below);
(d) maintenance and repair of the Building heating and
cooling systems, the plumbing systems, the fire
detection and suppression systems, the electrical system
and the elevators;
(e) all maintenance, janitorial, and service
agreements;
(f) all insurance, including the cost of casualty and
liability insurance applicable to the Parking Area,
the Land, the Building and Lessor's personal
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property used in connection therewith, including the
amount of any reasonable deductible payable by Lessor in
making repairs and restoration after a casualty;
(g) maintenance of landscaped areas and paved areas,
and snow removal;
(h) maintenance of the Building security system;
(i) management fees, PROVIDED THAT such fees are paid at
rates which are competitive with those commonly charged
for the management of comparable properties in
Cambridge, Massachusetts;
(j) capital items which are for the purpose of reducing
Operating Expenses or upgrading services or which
are at any time required by a governmental
authority or the provisions of any insurance policy
which is first adopted or first becomes applicable
to the Premises, the Building or the Land after the
date of this Lease, amortized over the reasonable
life of the capital items on a straight line basis
with the reasonable life being determined by Lessor
in accordance with generally accepted accounting
principles;
(k) reasonable expenses incurred in pursuing an application
for an abatement of Taxes pursuant to Section 5.4 below
to the extent not deducted from the abatement, if any,
received; and
(l) legal (excluding legal fees with respect to lease
negotiations and enforcement of lease terms against
other lessees), accounting and other professional fees
and disbursements (excluding leasing commissions).
For so long as Lessee is the sole occupant of the Building,
Lessee shall be responsible for one hundred percent (100%) of
Operating Expenses.
5.3 PAYMENT OF TAXES AND OPERATING EXPENSES. Within a reasonable
time after the Commencement Date, and thereafter within a
reasonable time after the end of each fiscal year of the
Lessor (or portion thereof) included in the Term, Lessor
shall deliver to Lessee (i) a statement of actual Operating
Expenses and Taxes for the fiscal year just ended, together
with reasonable supporting documentation therefor, and (ii) a
budget of Operating Expenses and Taxes for the then-current
fiscal year based on the actual Operating Expenses and Taxes
for the preceding year and projected increases or
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decreases reasonably anticipated by Lessor. Commencing on the
first day of the first calendar month after the delivery to
Lessee of such budget, Lessee shall pay to Lessor, as
Additional Rent, on account of its share of anticipated
Operating Expenses for the then-current year, 1/12th of the
total annualized amount of Lessee's share of Operating
Expenses and shall pay to Lessor, as and when set forth in
Section 3.1, the appropriate percentage of Taxes. Lessor
reserves the right to revise the budget during any fiscal
year to cause it to more accurately reflect the actual Taxes
or Operating Expenses being paid or incurred by Lessor, and
upon any such revision the parties shall make adjustments in
the same time and manner as hereinafter provided for fiscal
year-end adjustments. Upon delivery to Lessee of the
statement of actual Operating Expenses and Taxes for the
preceding fiscal year, Lessor shall adjust Lessee's account
accordingly. If the total amount paid by Lessee on account of
the preceding fiscal year is less than the amount due
hereunder, Lessee shall pay the balance due within twenty
(20) days after delivery by Lessor of such statement. If the
total amount paid by Lessee on account of the preceding
fiscal year exceeds the amount due hereunder, such excess
shall be credited by Lessor against the monthly installments
of Additional Rent next falling due or refunded to Lessee
upon the expiration or termination of this Lease (unless such
expiration or termination is the result of an "Event of
Default" (as defined in Section 13.1 below)). Lessor's
current fiscal year is July 1 - June 30, but Lessor reserves
the right to change the fiscal year at any time during the
Term.
5.4 ABATEMENT OF TAXES. Lessor or Lessee may at any time and from
time to time make application to the appropriate governmental
authority for an abatement of Taxes. If such an application
is successful, Lessor shall (a) deduct from the amount of the
abatement all expenses incurred by it in connection with the
application, (b) pay to Lessee Lessee's pro rata share of the
abatement, with interest, if any, paid by the governmental
authority on such share, and (c) retain the balance, if any;
PROVIDED THAT, if Lessee made the application for such
abatement, Lessor shall pay to Lessee out of the proceeds
thereof Lessee's reasonable expenses incurred in connection
with the application before making the payment to Lessee
described in clause (b) of this Section or before Lessor
retains the amount described in clause (c) of this Section.
Lessor agrees to cooperate with Lessee in connection with an
application for an abatement of Taxes hereunder by Lessee at
no expense to the Lessor.
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6.0 METERS FOR UTILITIES. Lessor reserves the right to install meters
for all utilities provided to the Premises, at its own expense,
and charge Lessee for Lessee's actual use of metered services as
Additional Rent.
7.0 Insurance
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7.1 PUBLIC LIABILITY INSURANCE. Lessee shall take out and
maintain in force throughout the Term (and for so long
thereafter as Lessee remains in occupancy) comprehensive
public liability insurance naming Lessor and persons claiming
by, through or under Lessor as additional insureds, against
all claims and demands for any injury to persons or property
which may be claimed to have occurred on the Premises, the
Building, the Land or on the ways adjoining the Land, in an
amount which at the beginning of the Term shall not be less
than $1,000,000 for personal injury or death or property
damage per occurrence, and $3,000,000 in the aggregate for
personal injury or death or property damage, or such higher
amounts as Lessor thereafter determines to be consistent with
sound commercial practice in Cambridge. Such policy shall
also include contractual liability coverage covering Lessee's
liability assumed under this Lease.
7.2 CASUALTY INSURANCE. (a) Lessee shall be responsible to
provide its own coverage during the Lease Term for fire,
vandalism, malicious mischief, extended coverage and
so-called all risk coverage insurance insuring (i) all items
or components of "Alterations" (as defined in Section 11.0(f)
below) which Lessee is by this Lease either entitled to or
required to remove upon the expiration or earlier termination
of this Lease, and (ii) "Lessee's Property" (as defined in
Section 11.0(h) below). Lessor shall not carry any insurance
concurrent in coverage and contributing in the event of loss
with any insurance required to be furnished by Lessee
hereunder if the effect of such separate insurance would be
to reduce the protection or the payment to be made under
Lessee's insurance.
(b) During any construction or alteration of the Building by
the Lessee, Lessee shall keep in full force and effect all
risk builder's risk insurance against loss or damage on a
completed value non-reporting basis from such hazards and in
such amounts as Lessor may reasonably require.
7.3 CERTIFICATE OF INSURANCE. The insurance required by
Sections 7.1 and 7.2 above shall be placed with insurers
reasonably satisfactory to Lessor and authorized to do
business in Massachusetts. Such insurance shall provide
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that it shall not be amended or canceled with respect to the
additional insureds or certificate holders without twenty
(20) days' prior written notice to each of them. Lessee shall
furnish to Lessor certificates of insurance for all insurance
required to be maintained by Lessee under this Lease,
together with evidence satisfactory to Lessor of the payment
of all premiums for such policies. Lessee, at Lessor's
request, shall also deliver such certificates and evidence of
payment of premiums to the holder of any mortgage affecting
the Land and Building.
7.4 LESSOR'S INSURANCE. Lessor shall take out and maintain in
force throughout the Term, in a company or companies
authorized to do business in Massachusetts, casualty
insurance on the Building (exclusive of "Lessee's Property"
(as defined in Section 11.0(h) below) and all "Alterations"
(as defined in Section 11.0(f) below) which Lessee is by this
Lease either entitled to or required to remove upon the
expiration or earlier termination of this Lease, as to which
Lessee is required to maintain insurance pursuant to Section
7.2 above) in an amount equal to the full replacement value
of the Building (exclusive of foundations and those items set
forth in the preceding parenthetical in this sentence),
covering all risks of direct physical loss or damage and
so-called "extended coverage" risks. This insurance may be
maintained in the form of a blanket policy covering the
Building as well as other properties owned by Lessor.
Notwithstanding the foregoing provisions of this Section 7.4,
Lessor shall have the right, at any time during the Term, to
self-insure all or any portion of the coverages required by
this Section.
7.5 WAIVER OF SUBROGATION. To the extent to which a waiver of
subrogation clause is available, Lessor and Lessee shall
obtain a provision in all insurance policies carried by such
party covering the Premises, including but not limited to
contents, fire and casualty insurance, expressly waiving any
right on the part of the insurer against the other party. If
extra cost is chargeable for such provision, then Lessee
shall pay such extra charge. Notwithstanding the foregoing,
with respect to such portion of the Term during which Lessor
elects to self-insure under Section 7.4 above, then for
purposes of this Section 7.5, Lessor shall be deemed to have
maintained fire and all-risk coverage in an amount equal to
one hundred (100%) percent of the insurable value of the
Building (subject to the exceptions and exclusions set forth
in Section 7.4 above) with a waiver of subrogation clause
contained therein.
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7.6 WAIVER OF RIGHTS. All claims, causes of action and rights of
recovery for any damage to or destruction of persons,
property or business which shall occur on or about the
Premises, the Building or the Land, which result from any of
the perils insured under any and all policies of insurance
maintained by Lessor or Lessee, are waived by each party as
against the other party, and the officers, directors,
employees, contractors, servants and agents thereof,
regardless of cause, including the negligence of the other
party and its respective officers, directors, employees,
contractors, servants and agents, but only to the extent of
recovery, if any, under such policy or policies of insurance;
PROVIDED, HOWEVER, that (i) this waiver shall be null and
void to the extent that any such insurance shall be
invalidated by reason of this waiver, and (ii) with respect
to such portion of the Term during which Lessor elects to
self-insure under Section 7.4 above, then for purposes of
this Section 7.6, Lessor shall be deemed to have maintained
fire and all-risk coverage in an amount equal to one hundred
(100%) percent of the insurable value of the Building
(subject to the exceptions and exclusions set forth in
Section 7.4 above).
8.0 ASSIGNMENT AND SUBLETTING. (a) Lessee shall not mortgage, pledge,
hypothecate, grant a security interest in, or otherwise encumber
this Lease or any sublease hereinafter entered into by Lessee, or
assign this Lease, or sublease the Premises or any portion thereof
(the term "sublease" shall be deemed to include any arrangement
pursuant to which a third party is permitted by Lessee to occupy
all or any portion of the Premises), without obtaining, on each
occasion, the prior written consent of Lessor. Lessor agrees not
to unreasonably withhold or delay its consent to any request to
assign or sublet the Lessee interest hereunder.
(b) If Lessee wishes to assign this Lease or sublease all or any
portion of the Premises, Lessee shall so notify Lessor in writing
and request Lessor's consent thereto. Such notice shall include
(i) the name of the proposed assignee or sublessee, (ii) a general
description of the types of business conducted by the proposed
assignee or sublessee and a reasonably detailed description of the
business operations proposed to be conducted in the Premises by
such person or entity, (iii) such financial information concerning
the proposed assignee or sublessee as Lessor may reasonably
require, and (iv) all terms and provisions upon which such
assignment or sublease is proposed to be made. Lessor shall have
thirty (30) days from the day on which it receives Lessee's notice
and such required information to give notice to Lessee that either
(i) Lessor consents to such assignment or sublease, or (ii) Lessor
withholds its consent to such assignment or sublease, or (iii)
where applicable, Lessor is
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exercising its right of recapture pursuant to paragraph (e)
below.
(c) If Lessor consents to an assignment or sublease: (i) Lessee
shall promptly deliver to Lessor a fully executed copy of said
assignment or sublease; (ii) after any such assignment or
sublease, Lessee shall remain primarily liable to Lessor hereunder
(which liability shall be joint and several with the assignee or
sublessee); and (iii) if the aggregate rent and other amounts
payable to Lessee under or in connection with such assignment or
sublease, after deduction of the costs reasonably incurred by
Lessee in entering into such assignment or sublease (including,
without limitation, reasonable attorneys' fees and expenses,
brokerage commissions, and alteration costs amortized on a
straight-line basis over the term of such sublease or, in the case
of an assignment, over the remaining Term of this Lease), exceeds
the Rent payable hereunder with respect to the portion of the
Premises subject to such sublease (or, in the case of an
assignment, the entire Premises), Lessee shall pay to Lessor, as
Additional Rent, one-half (1/2) of such excess immediately upon
receipt thereof by Lessee.
(d) If Lessor withholds its consent to such assignment or
sublease, Lessee shall not enter into the proposed assignment or
sublease with such person or entity.
(e) If Lessor elects, it shall have the right to consider Lessee's
request for Lessor's consent to any assignment of the Lease, or a
request for Lessor's consent to a sublease which either (i) has a
proposed term (including extension options) of two years or more,
or (ii) would cover twenty-five (25%) percent of the rentable area
of the Premises or more, as an offer to Lessor to release from
this Lease that portion of the Premises which is proposed to be
the subject of such sublease for the term of such proposed
sublease or, in the case of a proposed assignment of this Lease,
the entire Premises for the entire Lease Term. If Lessor accepts
such offer, then (i) in the case of a proposed sublease, this
Lease shall be deemed to be amended as of the proposed effective
date of such sublease so as to delete the portion of the Premises
which would have been subject thereto from the Premises for
purposes of this Lease (with a commensurate adjustment in Rent and
Lessee's share of Taxes and Operating Expenses) for the time
period of what would have been the term of such sublease, or (ii)
in the case of a proposed assignment, this Lease shall terminate
as of the proposed effective date of such assignment as if such
date was the last day of the Term.
(f) Regardless of whether Lessor grants such consent, Lessee
shall reimburse Lessor on demand, as Additional Rent, for all
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out of pocket costs and expenses (including, without limitation,
attorneys' fees) reasonably incurred by Lessor in responding to a
request for such consent.
(g) Lessee shall not be entitled to enter into any assignment or
sublease, or to request Lessor's consent thereto, during the
continuance of a default hereunder by Lessee.
(h) Any assignment or sublease entered into pursuant to this
Section 8.0 shall be subject to all of the terms and provisions of
this Lease, including without limitation this Section 8.0. If
Lessee enters into any such assignment or sublease, Lessor may, at
any time and from time to time after the occurrence of a default
hereunder, collect rent from such assignee or sublessee, and apply
the net amount collected against Lessee's obligations hereunder,
but no such assignment or sublease or collection shall be deemed
an acceptance by Lessor of such assignee or sublessee as a lessee
hereunder or as a release of the original named Lessee hereunder.
(i) Notwithstanding anything contained in this Lease, Lessee shall
not enter into any assignment or sublease with any person or
entity if the identity of the assignee or sublessee is
inconsistent with the investment policies of Lessor as set forth
in writing by the Executive Committee of Lessor prior to its
receipt of Lessee's notice of such proposed assignment or
sublease, and any such transaction shall be void AB INITIO.
(j) In the event that Lessee desires to assign this Lease or to
sublease the Premises (or any portion thereof) to any corporation,
partnership, association or other business organization directly
or indirectly controlling or controlled by Lessee or under common
control with Lessee, or to any successor by merger, consolidation
or purchase of all or substantially all of the assets of Lessee,
Lessee shall give at least twenty (20) days' prior written notice
thereof to Lessor (unless Lessee is prohibited by applicable laws,
codes, rules or regulations, or by the terms of the operative
merger agreement or purchase and sale agreement from providing
notice to Lessor at such time, in which event such notice shall be
provided to Lessor as soon as Lessee is no longer subject to such
prohibition). No consent of Lessor shall be required for any such
assignment or sublease EXCEPT that Lessor shall have the right to
withhold its consent if the identity of the assignee or sublessee
is inconsistent with the investment policies identified in the
foregoing paragraph (i) of this Section. Any assignee or sublessee
which claims an interest in this Lease pursuant to a transfer of
the type described in this paragraph (j) shall be bound by all of
the terms and conditions of this Lease including, without
limitation, those of the foregoing paragraph (i) of
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this Section, and if the identity of such assignee or successor is
inconsistent with such investment policies, Lessor shall have the
right to terminate this Lease and to exercise against such
assignee or sublessee the remedies available to Lessor under this
Lease, at law or in equity for a breach of the provisions hereof
by Lessee. For the purpose of this Lease, the sale of Lessee's
capital stock through any public exchange shall not be deemed an
assignment or sublease of the Lease or of the Premises.
(k) Notwithstanding anything contained in this Lease, Lessee shall
not, either voluntarily or by operation of law, make any transfer
of this Lease or the Premises (or any portion thereof) which
results in Lessee (or anyone claiming by, through or under Lessee)
collecting in connection with the Premises any rental or other
charge based on the net income or on the profits of any person so
as to render any part of the Rent due hereunder "unrelated
business taxable income" of Lessor as described in Section 512 of
the Internal Revenue Code of 1986, as amended, and any such
transfer shall be void AB INITIO.
9.0 PARKING. Lessee shall have the right to use 100 parking spaces in
the parking area on the Land (the "Parking Area") to serve the
Premises. The remaining parking spaces on the Land shall be
divided equally to serve the third and fourth floors of the
Building. If Lessee exercises its option or right of first refusal
with respect to one or both of the third and fourth floors under
Sections 1.3 or 1.4, Lessee will thereby acquire the right to use
the corresponding number of additional parking spaces. While
Lessee is constructing its initial build out, Lessor will, if
necessary, make additional spaces available to Lessee to
accommodate construction personnel and their vehicles.
10.0 LATE PAYMENT OF RENT. Lessee agrees that in the event that any
payment of Basic Rent or Additional Rent shall remain unpaid at
the close of business on the tenth business day after the same is
due and payable hereunder (without reliance on any applicable
grace period), such payment shall bear interest from the date the
same was due at a rate equal to the "Prime Rate" as published from
time to time in THE WALL STREET JOURNAL while such payment is
overdue PLUS four (4%) percent, which shall be due and payable by
Lessee as Additional Rent as compensation for Lessor's extra
administrative costs in investigating the circumstances of late
Rent. The assessment or collection of such a charge shall not be
deemed to be a waiver by Lessor of any default by Lessee arising
out of such failure to pay Rent when due.
11.0 LESSEE'S COVENANTS. Lessee covenants, at its sole cost and
expense, during the Term and such further time as Lessee
occupies any part of the Premises:
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(a) to pay when due the Basic Rent and all Additional Rent, and,
if separately metered at any time during the Term, all
charges for electricity and other utilities;
(b) damage by fire or casualty and reasonable wear and tear only
excepted, to keep the Premises (including window glass) in as
good order, repair and condition as the same are in at the
commencement of the Term, or may be put in thereafter;
(c) not to injure, overload or deface the Premises or the
Building, nor to suffer or commit any waste therein, nor
to place a load upon any floor which exceeds the floor
load which the floor was designed to carry, nor to
connect any equipment or apparatus to any Building
system (e.g., electrical, plumbing, mechanical) which
exceeds the capacity of such system, nor to permit on
the Premises any auction sale or any nuisance or the
emission therefrom of any objectionable vibration,
noise, or odor, nor to permit the use of the Premises
for any purpose other than the Permitted Uses, nor any
use thereof which is improper, offensive, or contrary to
any laws, ordinances, codes, rules and regulations, or
the provisions of any license, permit or other
governmental consent or approval required for or
applicable now or at any time during the Term to the
Land, the Building or the Premises or Lessee's use
thereof (collectively, "Legal Requirements"), or which
is liable to invalidate or increase the premiums for any
insurance on the Building or its contents, or liable to
render necessary any alterations or additions to the
Building;
(d) not to obstruct in any manner any portion of the Building not
hereby leased, or the sidewalks or approaches to the
Building, or the Parking Area, or any hallways or Common
Areas, and to conform to all reasonable rules now or
hereafter made by Lessor for the care and use of the
Building, its facilities and approaches;
(e) to comply with all Legal Requirements and all
recommendations of Lessor's fire insurance rating
organization now or hereafter in effect, to keep the
Premises equipped with all safety appliances, and to
procure (and maintain in full force and effect) all
licenses, permits and other governmental consents and
approvals required by any Legal Requirement or by the
provisions of any applicable insurance policy because of
the use made of the Premises by Lessee (without hereby
intending to vary the provisions of Section 4.0 above),
and, if requested by Lessor, to make all repairs,
alterations, replacements or additions so required in
and to the Premises;
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(f) except as set forth in Section 1.5, Section 14 or this
Section 11.0(f), not, without on each occasion obtaining
the prior written consent of Lessor which will not be
unreasonably withheld or delayed, to make any
alterations, renovations, improvements and/or additions
to the Premises (collectively, "Alterations"), or to
permit the making of any holes in any part of the
Building or the painting or placing of any signs,
awnings, or the like, visible from outside of the
Premises; PROVIDED THAT Lessee may, without such
approval, make Alterations which will neither (i)
materially affect the structure of the Premises or its
building service systems or (ii) cost more than $25,000
to construct ("Minor Alterations"). Prior to commencing
any Alterations, Lessee shall: secure all necessary
licenses, permits and other governmental consents and
approvals; except for Minor Alterations, obtain the
written approval of Lessor as to the plans and
specifications for such work; except for Minor
Alterations, obtain the written approval of Lessor as to
the general contractor (or as to each trade contractor
if there is no general contractor); cause each
contractor and subcontractor to carry workmen's
compensation insurance in statutory amounts covering all
of the contractor's and subcontractor's employees; and
cause each general contractor (or each trade contractor
if there is no general contractor) and subcontractor to
carry comprehensive public liability insurance in
amounts reasonably satisfactory to Lessor (such
insurance to be written by companies reasonably
satisfactory to Lessor and insuring Lessee and Lessor as
well as the contractors and subcontractors). All
Alterations shall be performed in a good and workmanlike
manner consistent with existing conditions within the
Building and shall be of a quality equal to or better
than existing conditions. Lessor and Lessee hereby
agree that Lessee's Work as described in Exhibit B shall
remain part of the Premises upon the expiration or
earlier termination of the Term. All other Alterations
(other than Lessee's removable personal property and
trade fixtures) shall remain part of the Premises and
shall not be removed upon the expiration or earlier
termination of the Term EXCEPT for those items which
Lessor designates for removal in a notice given to
Lessee at the time that Lessee requests Lessor's
approval of such Alteration. Lessee shall pay promptly
when due the entire cost of all work. Lessee shall not
cause or permit any liens for labor or materials
performed or furnished in connection therewith to attach
to the Land or the Building, and shall discharge or bond
any such liens which may be filed or recorded against
the Premises within fifteen (15) days after the filing
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or recording thereof. All such work shall be performed in
compliance with all Legal Requirements and the provisions of
all applicable insurance policies. Promptly after the
completion of any Alterations, Lessee shall provide a
complete set of as-built plans thereof to Lessor showing all
work performed, including, without limitation, plans for all
partitions, plumbing, electric service equipment and wiring,
HVAC equipment and piping, sprinkler systems and other
services installed or modified. Lessee shall indemnify and
hold Lessor harmless from and against any and all suits,
demands, causes of action, claims, losses, debts,
liabilities, damages, penalties or judgments, including,
without limitation, reasonable attorneys' fees, arising from
injury to any person or property occasioned by or growing out
of such work, which indemnity shall survive the expiration or
termination of this Lease;
(g) to save Lessor harmless and indemnified from any loss,
cost and expense (including, without limitation,
reasonable attorneys' fees) arising out of or relating
to (i) a claim of injury to any person or damage to any
property while on the Premises, if not due to the
negligence or willful misconduct of Lessor or its
officers, agents, employees, servants or contractors, or
the breach of Lessor's obligations under this Lease; or
to (ii) a claim of injury to any person or damage to any
property anywhere alleged to be occasioned by any
omission, neglect or default of Lessee or of anyone
claiming by, through, or under Lessee, or any officer,
agent, employee, servant, contractor or invitee of any
of the foregoing. Lessor agrees to indemnify and hold
harmless Lessee from and against all loss, cost and
expense (including, without limitation, reasonable
attorneys' fees) arising out of or relating to a claim
for personal injury or property damage resulting from
the negligence or willful misconduct of Lessor or its
officers, agents, employees, servants or contractors,
including claims of injury to any person or damage to
any property while on the common areas on the property,
if due to the negligence or willful misconduct of Lessor
or its officers, agents, employees, servants or
contractors, or from the breach of Lessor's obligations
or representations under this Lease. The provisions of
this clause (g) shall survive the expiration or
termination of this Lease;
(h) that all furniture, furnishings, fixtures and property of
every kind of Lessee and of all persons claiming by, through
or under Lessee which may be on the Premises from time to
time (collectively, "Lessee's Property") shall be at the sole
risk of Lessee, and Lessor shall
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not be liable 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, or by theft or from any other cause unless caused by
the negligence or willful misconduct of Lessor, or its
officers, agents, employees, servants or contractors;
(i) to pay promptly when due, all taxes of any kind levied,
imposed or assessed on Lessee's Property, which taxes shall
be the sole obligation of Lessee, whether the same is
assessed to Lessee or to any other person and whether the
property on which such tax is levied, imposed or assessed
shall be considered part of the Premises or personal
property;
(j) by the end of business on the last day of the Term (or
the effective date of any earlier termination of this
Lease as herein provided), to remove (1) all of Lessee's
Property and (2) the items or components of Alterations
designated for removal as provided in paragraph (f)
above, in each case whether the same be permanently
affixed to the Premises or not, and to repair any damage
caused by any such removal to Lessor's reasonable
satisfaction; and peaceably to yield up the Premises
clean and in good order, repair and condition
(reasonable wear and tear, and damage by fire or other
casualty or taking which Lessee is not otherwise
required by the terms of this Lease to repair or replace
only excepted); and to deliver the keys to the Premises
to Lessor. Any of Lessee's Property or those
Alterations designated for removal as provided in
paragraph (f) above which are not removed by such date
shall be deemed abandoned and may be removed and
disposed of by Lessor in such manner as Lessor may
determine, and Lessee shall pay to Lessor on demand, as
Additional Rent, the entire cost of such removal and
disposition, together with the costs and expenses
incurred by Lessor in making any incidental repairs and
replacements to the Premises necessitated by Lessee's
failure to remove Lessee's Property or those Alterations
designated for removal as provided in paragraph (f)
above, as required herein or by any other failure of
Lessee to comply with the terms of this Lease, and for
use and occupancy during the period after the expiration
of the Term and prior to Lessee's performance of its
obligations under this paragraph (k). Lessee shall
further indemnify and hold Lessor harmless from and
against any and all suits, demands, causes of action,
claims, losses, debts, liabilities, damages, penalties
or judgments, including, without limitation, reasonable
attorneys' fees, resulting from Lessee's failure or
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delay in surrendering the Premises as above provided
(such indemnity to survive the expiration or termination
of this Lease);
(k) to pay Lessor's reasonable expenses, including reasonable
attorneys' fees, incurred in enforcing any obligations of
Lessee under this Lease;
(l) not to generate, store or use any "Hazardous Materials"
(as hereinafter defined) in or on the Premises or
elsewhere in the Building or on the Land except those
identified in writing to Lessor from time to time, and
then only in compliance with any and all applicable
Legal Requirements, or dispose of Hazardous Materials
from the Premises to any other location except a
properly approved disposal facility and then only in
compliance with any and all Legal Requirements
regulating such activity, nor permit any occupant of the
Premises to do so. As used in this Lease, "Hazardous
Materials" means and includes any chemical, substance,
waste, material, gas or emission which is radioactive or
deemed hazardous, toxic, a pollutant, or a contaminant
under any statute, ordinance, by-law, rule, regulation,
executive order or other administrative order, judgment,
decree, injunction or other judicial order of or by any
governmental authority, now or hereafter in effect,
relating to pollution or protection of human health or
the environment. By way of illustration and not
limitation, "Hazardous Materials" includes "oil",
"hazardous materials", "hazardous waste", and "hazardous
substance" as defined in the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C.
Section 9601 ET SEQ., as amended, the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Section
6902 ET SEQ., as amended, and the Toxic Substances
Control Act, 15 U.S.C. 8601 ET SEQ., as amended, the
regulations promulgated thereunder, and Massachusetts
General Laws, Chapter 21C and Chapter 21E and the
regulations promulgated thereunder. If, at any time
during the Term, any governmental authority requires
testing to determine whether there has been any release
of Hazardous Materials by Lessee or anyone claiming by,
through or under Lessee, then Lessee shall reimburse
Lessor upon demand, as Additional Rent, for the
reasonable costs thereof. Lessee shall execute
affidavits, certifications and the like, as may be
reasonably requested by Lessor from time to time
concerning Lessee's best knowledge and belief concerning
the presence of Hazardous Materials in or on the
Premises, the Building or the Land. Lessor reserves the
right to enter the Premises at reasonable times
(provided twenty-four (24) hours' notice is given to
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Lessee, except in case of emergency) to inspect the same for
Hazardous Materials. Lessee's obligations under this
paragraph (l) shall include, if at any time during the Term
Lessee or anyone claiming by, through or under Lessee uses or
stores radioactive materials on the Premises, compliance with
all so-called "close-out" procedures of the Nuclear
Regulatory Commission or other federal, state or local
governmental authorities having jurisdiction over radioactive
materials, regardless of whether or not such procedures are
completed prior to the expiration or earlier termination of
the Term. Lessee shall indemnify, defend, and hold harmless
Lessor, and the holder of any mortgage on the Building or the
Land, from and against any claim, cost, expense, liability,
obligation or damage, including, without limitation,
attorneys' fees and the cost of litigation, arising from or
relating to the breach by Lessee or anyone claiming by,
through or under Lessee of the provisions of this paragraph
(l), and shall immediately discharge or cause to be
discharged any lien imposed upon the Building or the Land in
connection with any such claim. The provisions of this
paragraph (l) shall survive the expiration or termination of
this Lease;
(m) in case Lessee takes possession of the Premises prior to the
Commencement Date, to perform and observe all of Lessee's
covenants from and after the date upon which Lessee takes
possession except that no Rent shall accrue prior to the Rent
Commencement Date;
(n) to comply with all rules and regulations adopted and
amended from time to time by Lessor for the operation of
the Land and the Building; and
(o) not to permit any officer, agent, employee, servant,
contractor or visitor of Lessee, or of anyone claiming by,
through or under Lessee, to violate any covenant or
obligation of Lessee hereunder.
12.0 Casualty and Eminent Domain.
---------------------------
12.1 SUBSTANTIAL TAKING. In the event that the entire Building, or
more than fifty percent (50%) percent of the rentable area of
the Premises or of the parking spaces which the Lessee is
entitled to use under Section 9.0, shall be taken by any
exercise of the right of eminent domain or other lawful power
in pursuance of any public or other authority during the
Term, then this Lease shall terminate as of the time that
possession is taken by the taking authority.
12.2 PARTIAL TAKING. In the event that a taking occurs and
this Lease is not terminated as provided in Section 12.1
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above, then from and after the date possession is taken by
the taking authority Rent shall be abated by an amount
representing that part of the Rent properly allocable to the
portion of the Premises so taken, but this Lease shall
otherwise continue in full force and effect.
12.3 AWARDS. Lessor reserves and excepts all rights to damage to
the Premises, the Building, the Land and the leasehold hereby
created, now accrued or hereafter accruing by reason of any
exercise of eminent domain, or by reason of anything lawfully
done in pursuance of any public or other authority and by way
of confirmation, Lessee grants to Lessor all of Lessee's
rights to such damages and covenants to execute and deliver
such further instruments of assignment thereof as Lessor may
from time to time request. Lessor agrees, during the Initial
Term only, to pay to Lessee out of the damages received, the
Unamortized Value of Lessee's Work. The Unamortized Value of
Lessee's Work shall mean the Value of Lessee's Work reduced
annually at the end of each year of the Initial Term by one
fifth of the initial amount thereof. The Value of Lessee's
Work shall mean the cost to Lessee of constructing Lessee's
Work reduced by soft costs.
12.4 SUBSTANTIAL CASUALTY. If the Premises are damaged by fire or
other casualty, Lessee shall promptly notify Lessor thereof.
If the Building or any part thereof shall be damaged by fire
or other casualty to the extent that substantial alteration
or reconstruction of the Building shall, in Lessor's sole
opinion, be required (whether or not the Premises shall have
been damaged), or if such casualty renders more than fifty
(50%) percent of the rentable area of the Premises unusable
by Lessee for the operation of its business in the Premises,
or if as a result of such casualty any mortgagee of the
Building requires that insurance proceeds payable in
connection with such casualty be used to retire the mortgage
debt, then, except as set forth in Section 12.5, Lessor may,
at its option, terminate this Lease by notifying Lessee in
writing of such termination within sixty (60) days after the
date of such damage, in which event this Lease shall
terminate on the date set forth in such notice. If such
casualty renders more than fifty (50%) percent of the
rentable area of the Premises unusable by Lessee for the
operation of its business in the Premises, in the reasonable
determination of Lessee, then Lessee may terminate this Lease
by written notice thereof to Lessor within sixty (60) days
after the date of such damage, or if, after such casualty,
Lessor is excused from restoring the Premises under Section
12.5 and notifies
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Lessee that it will not restore the Premises, then Lessee may
terminate this Lease by written notice thereof to Lessor
within thirty (30) days after receipt of such notice by the
Lessee. In the event that this Lease is terminated pursuant
to this Section 12.4, Rent shall be abated, to the extent the
Premises are unusable for the Permitted Uses, from and after
the date of such damage to the date of such termination of
this Lease, and no further Rent shall accrue or be payable
after the date of such termination.
12.5 REPAIR AND RESTORATION. In the event of a taking which does
not result in the termination of this Lease pursuant to
Section 12.1 above, or a casualty which does not result in
the termination of this Lease pursuant to Section 12.4 above,
or if, notwithstanding the occurrence of a substantial
casualty described in Section 12.4, Lessor decides not to
demolish the Building, the Premises shall be repaired and
restored in the manner provided in this Section. Lessor shall
diligently act to restore the Building and the Premises
(exclusive of all items or components of Alterations which
Lessee is by this Lease either entitled to or required to
remove upon the expiration or earlier termination of this
Lease, and Lessee's Property) or, in case of taking, what
remains thereof, to substantially the condition in which they
existed prior to the occurrence of such taking or casualty,
PROVIDED, HOWEVER, that: (i) in no event shall Lessor be
required to spend in connection with restoring the Premises
more than the amount of insurance proceeds or taking award
actually received and allocable thereto (except that this
limitation with respect to insurance proceeds shall not apply
to casualties occurring during such time as Lessor
self-insures pursuant to Section 7.4 above); (ii) Lessor
shall not be required to restore or replace any Alterations
which Lessee is by this Lease either entitled to or required
to remove upon the expiration or earlier termination of this
Lease; and (iii) Lessor shall not be required to restore or
replace any of Lessee's Property. Lessor shall not be liable
for any inconvenience or annoyance to Lessee or injury to the
business of Lessee resulting in any way from such taking or
damage or the repair thereof. Rent shall be abated from and
after the date of such taking or damage to the date on which
Lessor substantially completes the restoration described
above, to the extent the Premises are unusable for the
Permitted Uses.
13.0 Defaults; Events of Default; Remedies.
-------------------------------------
13.1 DEFAULTS; EVENTS OF DEFAULT. The following shall, if
any requirement for notice or lapse of time or both has
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not been met, constitute defaults hereunder, and, if such
requirements have been met, constitute "Events of Default"
hereunder:
(a) The failure of Lessee to perform or observe any of
Lessee's covenants or agreements hereunder
concerning the payment of money for a period of ten
(10) days after written notice thereof, PROVIDED,
HOWEVER, that Lessee shall not be entitled to such
notice if Lessor has given notice to Lessee of two
or more previous such failures within a
twelve-month period, in which event such failure
shall constitute an Event of Default hereunder upon
the expiration of ten (10) days after such payment
was due;
(b) The failure of Lessee to maintain the insurance
required hereunder in full force and effect;
(c) The execution by Lessee of any assignment or
sublease without the prior written consent of
Lessor;
(d) The failure of Lessee to perform or observe any of
Lessee's other covenants or agreements hereunder
for a period of thirty (30) days after written
notice thereof (PROVIDED THAT, in the case of
defaults not reasonably curable in thirty (30) days
through the exercise of reasonable diligence, such
30-day period shall be extended for so long as
Lessee commences cure within such period and
thereafter prosecutes such cure to completion
continuously and with reasonable diligence; or
(e) If the leasehold hereby created shall be taken on
execution, or by other process of law; or if any
assignment shall be made of Lessee's property for
the benefit of creditors; or if a receiver,
guardian, conservator, trustee in bankruptcy or
similar officer shall be appointed to take charge
of all or any part of Lessee's assets by a court of
competent jurisdiction; or if a petition is filed
by Lessee under any bankruptcy or insolvency law;
or if a petition is filed against Lessee under any
bankruptcy or insolvency law and the same shall not
be dismissed within sixty (60) days from the date
upon which it is filed; or a lien or other
involuntary encumbrance is filed against Lessee's
leasehold (or against the Premises, the Building or
the Land based on a claim against Lessee) and is
not discharged or bonded within thirty (30) days
after the filing thereof.
13.2 TERMINATION. If an Event of Default shall occur, Lessor
may, at its option, immediately or any time thereafter
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and without demand or notice, enter upon the Premises or any
part thereof in the name of the whole and repossess the same
as of Lessor's former estate and dispossess Lessee and those
claiming through or under Lessee and remove their effects,
forcibly if necessary, without being deemed guilty of any
manner of trespass and without prejudice to any remedies
which might otherwise be used for arrears of rent or
preceding breach of covenant, and upon such entry this Lease
shall terminate. In lieu of making such entry, Lessor may
terminate this Lease upon three (3) business days' prior
written notice to Lessee. Upon any termination of this Lease
as the result of an Event of Default, Lessee shall quit and
peacefully surrender the Premises to Lessor.
13.3 SURVIVAL OF COVENANTS. No such termination of this Lease
shall relieve Lessee of its liability and obligations under
this Lease and such liability and obligations shall survive
any such termination. Lessee shall indemnify and hold Lessor
harmless from all loss, cost, expense, damage or liability
arising out of or in connection with such termination.
13.4 DAMAGES. In the event of any such termination, Lessee shall
pay to Lessor the Rent up to the time of such termination.
Lessee shall remain liable for, and shall pay on the days
originally fixed for such payment hereunder, the full amount
of all Basic Rent and Additional Rent as if this Lease had
not been terminated; PROVIDED, HOWEVER, if Lessor relets the
Premises, there shall be credited against such obligation the
amount actually received by Lessor each month from such
lessee after first deducting all costs and expenses incurred
by Lessor in connection with reletting the Premises and, if
Lessor has previously received a payment under the succeeding
paragraph of this Section 13.4, there shall be credited
against such obligation the amount actually received by
Lessor.
Lessee further agrees to pay to Lessor, on demand, as and for
liquidated and agreed damages for Lessee's default, the
amount by which:
(a) the aggregate Rent which would have been payable
under this Lease by Lessee from the date of such
termination until what would have been the last day
of the Term but for such termination, EXCEEDS
(b) the greater of (i) the fair and reasonable rental
value of the Premises for the same period, less
Lessor's reasonable estimate of expenses to be
incurred in connection with
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reletting the Premises, including, without
limitation, all repossession costs, brokerage
commissions, legal expenses, reasonable attorneys'
fees, alteration costs, and expenses of preparation
for such reletting, or (ii) the sum of (A) the
amount actually received by Lessor from reletting
the Premises (if any) after payment of such
expenses, and (B) the amount actually received by
Lessor from Lessee pursuant to the preceding
paragraph of this Section (if any).
If the Premises or any part thereof are relet by Lessor for
the period prior to what would have been the last day of the
Term but for such termination, or any portion thereof, the
amount of rent reserved upon such reletting shall be, PRIMA
FACIE, the fair and reasonable rental value for the part or
the whole of the Premises so relet during the term of the
reletting.
In lieu of any other damages hereunder, Lessor may by written
notice to Lessee, at any time after this Lease is so
terminated, elect to recover, and Lessee shall pay as full
and final liquidated damages, an amount equal to (i) the
Basic Rent and Additional Rent accrued under Section 5.0
hereof in the twelve (12) months ending on the effective date
of such termination, PLUS (ii) all Basic Rent and Additional
Rent which was unpaid as of the effective date of such
termination, LESS (iii) the amount received by Lessor
pursuant to the foregoing provisions of this Section 13.4
prior to the time of payment by Lessee of such liquidated
damages.
Nothing herein contained shall limit or prejudice the right
of Lessor to prove and obtain as liquidated damages by reason
of such termination, 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, such damages are to be
proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
13.5 RIGHT TO RELET. At any time or from time to time after any
such termination, Lessor may relet the Premises or any part
thereof for such a term (which may be greater or less than
the period which would otherwise have constituted the balance
of the Term) and on such conditions (which may include
concessions or free rent) as Lessor, in its reasonable
discretion, may determine, and may collect and receive the
rents therefor. Lessor shall in no way be responsible or
liable for any failure
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to relet the Premises or any part thereof, or for any failure
to collect any rent due upon any such reletting.
13.6 RIGHT TO EQUITABLE RELIEF. In the event there shall occur a
default hereunder, Lessor shall be entitled to seek to enjoin
such default and shall have the right to invoke any right and
remedy allowed at law or in equity or by statute or otherwise
as though re-entry and other remedies were not provided for
in this Lease.
13.7 RIGHT TO SELF HELP. In the event of a default by Lessee
hereunder which continues beyond the expiration of the
applicable grace period, Lessor shall have the right to
perform such defaulted obligation of Lessee, including the
right to enter upon the Premises to do so. Lessor shall, as a
courtesy only, notify Lessee of its intention to perform such
obligation. In the event of a default by Lessee hereunder
which has not yet continued beyond the expiration of the
applicable grace period but which Lessor determines
constitutes an emergency threatening imminent injury to
persons or damage to property, Lessor shall have the right to
perform such defaulted obligation of Lessee (including the
right to enter upon the Premises to do so) after giving
Lessee such notice (if any) as is reasonable under the
circumstances. In either event, the aggregate of (i) all sums
so paid by Lessor, (ii) interest (at the rate of 1-1/2% per
month or the highest rate permitted by law, whichever is
less) on such sum, and (iii) all necessary incidental costs
and expenses in connection with the performance of any such
act by Lessor, shall be deemed to be Additional Rent under
this Lease and shall be payable to Lessor immediately upon
demand. Lessor may exercise its rights under this Section
13.7 without waiving any other of its rights or releasing
Lessee from any of its obligations under this Lease. If
Lessor defaults on its obligations hereunder after thirty
(30) days notice thereof or, in the event of an emergency,
such notice as is reasonable under the circumstances, and, as
a result, Lessee is compelled to pay, or reasonably elects to
pay any sum of money or do any act which will require the
payment of a sum of money, or incurs any reasonable expense
to cure such default by Lessor, any reasonable amounts so
paid shall be due from Lessor to Lessee, and Lessor shall pay
such amount promptly to Lessee upon receipt of a xxxx
therefor. The right granted to Lessee in this Section 13.7 is
in addition to any other rights and remedies Lessee may have
at law or in equity.
13.8 FURTHER REMEDIES. Nothing in this Lease contained shall
require Lessor to elect any remedy for a default or
Event of Default by Lessee hereunder, and all rights
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herein provided shall be cumulative with one another and with
any other rights and remedies which Lessor may have at law or
in equity in the case of such a default or Event of Default.
14.0 CONSTRUCTION. Lessee shall have the right to make improvements to
the Premises in order to make them suitable for use as a
semi-conductor wafer manufacturing facility in accordance with the
provisions of the Work Letter attached hereto as EXHIBIT B.
15.0 LESSOR'S RIGHT OF ENTRY. Lessor reserves the right to enter the
Premises on reasonable advance notice to the Lessee for the
purpose of installing one or two elevators and installing or
modifying the existing service systems in the Building in order to
render tenantable the third and fourth floors of the Building;
PROVIDED THAT Lessor shall cooperate with Lessee in order to
minimize interference with Lessee's business operations. Lessor
agrees that all work to install elevator(s) shall be commenced as
soon as reasonably possible after the Commencement Date, and
Lessor shall use reasonable efforts to complete the installation
as soon as possible. Lessor and Lessor's agents shall have the
right to enter the Premises at reasonable times (provided 24
hours' notice is given to Lessee, except in case of emergency),
and if Lessor shall so elect (without hereby imposing any
obligation on Lessor to do so), to permit Lessor to make any
repairs or additions Lessor may deem necessary; and at Lessee's
expense to remove any Alterations, signs, awnings, aerials,
flagpoles or the like not consented to in writing or permitted
hereunder; and to permit Lessor to show the Premises to
prospective purchasers and lessees (at reasonable times on
reasonable advance notice to Lessee) and to keep affixed to any
suitable part of the Premises, during the nine (9) months
preceding the expiration of the Term, appropriate notices for
letting or selling.
16.0 REAL ESTATE BROKER. Lessor and Lessee each represent to the other
that they have dealt with no broker in connection with this Lease.
Lessee agrees to indemnify and hold Lessor harmless from and
against any claims for commissions or fees by reason of any act of
Lessee or its representatives. Lessor agrees to indemnify and hold
Lessee harmless from and against any claims for commissions or
fees by any person by reason of any act of Lessor or its
representatives.
17.0 NOTICES. Whenever by the terms of this Lease notice, demand, or
other communication shall or may be given either to Lessor or to
Lessee, the same shall be in writing and shall be sent by hand
delivery, or by registered or certified mail, postage prepaid, or
by Federal Express or other similar overnight delivery service,
to:
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Lessor: Massachusetts Institute of
Technology
000 Xxxx Xxxxxx - Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx,
Director of Real Estate
with a copy to: Xxxxxx X. Xxxxxxxx, Esq.
Rackemann, Xxxxxx & Xxxxxxxx
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Lessee: Analog Devices, Inc.
Xxx Xxxxxxxxxx Xxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Attention: Chief Financial
Officer
with a copy to: Xxxxxx X. Xxxxxxxxx, Esq.
Xxxx and Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Any notice, demand or other communication shall be effective upon
receipt by or tender for delivery to the intended recipient
thereof.
18.0 NO WAIVERS. Failure of a party to complain of any act or omission
on the part of the other party no matter how long the same may
continue, shall not be deemed to be a waiver by such party of any
of its rights hereunder. No waiver by a party at any time,
expressed or implied, of any breach of any provision of this Lease
shall be deemed a waiver of a breach of any other provision of
this Lease or a consent to any subsequent breach of the same or
any other provision. No acceptance by a party of any partial
payment shall constitute an accord or satisfaction but shall only
be deemed a partial payment on account; nor shall any endorsement
or statement on any check or any letter accompanying any check or
payment be deemed an accord and satisfaction, and the receiving
party may accept such check or payment without prejudice to that
party's right to recover the balance of such installment or pursue
any other remedy available to such party in this Lease or at law
or in equity.
19.0 Ground Leases; Mortgages.
------------------------
19.1 RIGHTS OF GROUND LESSORS AND MORTGAGEES. No act or
failure to act on the part of Lessor which would entitle
Lessee under the terms of this Lease, or by law, to be
relieved of Lessee's obligations hereunder or to
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terminate this Lease, shall result in a release or
termination of such obligations or a termination of this
Lease unless (i) Lessee shall have first given written notice
to Lessor's ground lessors and mortgagees of the act or
failure to act on the part of Lessor which Lessee claims as
the basis of Lessee's rights; and (ii) such ground lessors
and mortgagees, after receipt of such notice, have failed or
refused to correct or cure the condition within a reasonable
time thereafter, but nothing in this Lease shall be deemed to
impose any obligation on any such ground lessor or mortgagee
to correct or cure any such condition. The foregoing sentence
shall apply only for the benefit of ground lessors and
mortgagees who have been identified to Lessee by a notice
given in accordance with Section 17. No ground lessor shall
be liable for the failure to perform any of the obligations
of Lessor hereunder unless and until such ground lessor
terminates its ground lease and takes possession of the
Premises, nor shall any mortgagee be liable for the failure
to perform any of the obligations of Lessor hereunder unless
and until such mortgagee enters upon and takes possession of
the Premises for purposes of foreclosure.
19.2 LEASE SUBORDINATE. This Lease is and shall be subject and
subordinate to any ground lease or mortgage now or hereafter
on the Premises, and to all advances under any such mortgage
and to all renewals, amendments, extensions and
consolidations thereof, PROVIDED THAT the holder of such
ground lessor's interest or mortgagee's interest enters into
a non-disturbance and attornment agreement with Lessee which
provides that in the event that such ground lessor or
mortgagee succeeds to Lessor's interest hereunder, then,
PROVIDED THAT Lessee is not in default hereunder beyond the
cure period provided in this Lease, such party shall
recognize and be bound by the terms of this Lease. In the
event that any ground lessor or the holder of any mortgage
succeeds to Lessor's interest in the Premises or any portion
thereof, Lessee hereby agrees to attorn to such ground lessor
or mortgagee. In confirmation of such subordination, Lessee
shall execute and deliver promptly any certificate in
recordable form that Lessor or any ground lessor or any
mortgagee may reasonably request. Notwithstanding the
foregoing provisions of this Section, the holder of any
mortgage on the Premises may at any time subordinate its
mortgage to this Lease by written notice to Lessee.
Lessor hereby represents to Lessee that as of the date of
this Lease, there are no mortgages or ground leases
encumbering the Premises or any portion thereof.
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34
20.0 NOTICE OF LEASE; ESTOPPEL CERTIFICATES. Lessor and Lessee agree
that this Lease shall not be recorded. However, upon the request
of either party, Lessor and Lessee shall execute and acknowledge a
Notice of Lease in mutually acceptable and recordable form.
From time to time during the Lease Term, and without charge,
either party shall, within fifteen (15) business days of request
by the other, certify by written instrument duly executed and
acknowledged, to the requesting party or to any person reasonably
specified by the requesting party, regarding (a) the existence of
any amendments or supplements to this Lease; (b) the validity and
force and effect of this Lease; (c) the existence of any known
default or Event of Default; (d) the existence of any offsets,
counterclaims or defenses; (e) the Commencement Date and the
expiration date of the Lease Term; (f) the amount of Rent due and
payable and the date to which Rent has been paid; and (g) such
other matters as may be reasonably requested.
21.0 HOLDING OVER. If Lessee occupies the Premises after the day on
which the Lease Term expires (or the effective date of any earlier
termination as herein provided) without having entered into a new
lease thereof with Lessor, Lessee shall be a tenant-at-sufferance
only, subject to all of the terms and provisions of this Lease;
PROVIDED THAT Basic Rent shall be payable for the first sixty (60)
days after such expiration or termination at one and one-half
(1.5) times the then-effective Basic Rent stated in Section 3.2
and thereafter shall be payable at three (3) times the
then-effective Basic Rent there stated. Such a holding over, even
if with the consent of Lessor, shall not constitute an extension
or renewal of this Lease. For purposes of this Section, the
failure of Lessee to complete by the last day of the Lease Term or
the effective date of any earlier termination as herein provided
the "close-out" procedures required by the Nuclear Regulatory
Commission or any other federal, state or local governmental
agency having jurisdiction over the use of radioactive materials
within the Premises shall constitute a holding over and subject
Lessee to the provisions of this Section.
22.0 FORCE MAJEURE. Neither Lessor nor Lessee shall be deemed to be in
default hereunder and the time for performance of any of their
respective obligations hereunder other than the payment of money
shall be postponed for so long as the performance of such
obligation is prevented by strike, lock-out, act of God, absence
of materials or any other matter not reasonably within the control
of the party which must perform the obligation (collectively,
"Force Majeure").
23.0 ENTIRE AGREEMENT. No oral statement or prior written matter
shall have any force or effect. This Agreement shall not be
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35
modified or canceled except by writing subscribed to by all
parties.
24.0 SUCCESSORS AND ASSIGNS. The terms, covenants and conditions of
this Lease shall run with the Land, and be binding upon and inure
to the benefit of Lessor and Lessee and their respective
successors and permitted assigns.
25.0 APPLICABLE LAW, SEVERABILITY AND CONSTRUCTION. This Lease shall be
governed by and construed in accordance with the laws of
Massachusetts and, if any provisions of this Lease shall to any
extent be invalid, the remainder of this Lease, and the
application of such provisions in other circumstances, shall not
be affected thereby. The titles of the several Sections contained
herein are for convenience only and shall not be considered in
construing this Lease. Whenever the singular is used and when
required by the context it shall include the plural, and the
neuter gender shall include the masculine and feminine. The
Exhibits attached to this Lease are incorporated into this Lease
by reference. This Lease may be executed in several counterparts,
each of which shall be an original, but all of which shall
constitute one and the same instrument. The term "Lessor" whenever
used herein, shall mean only the owner at the time of Lessor's
interest herein, and no covenant or agreement of Lessor, express
or implied, shall be binding upon any person except for defaults
occurring during such person's period of ownership nor binding
individually upon any fiduciary, any shareholder, officer or
director, or any beneficiary under any trust, and the liability of
Lessor, in any event, shall be limited to Lessor's interest in the
Building. If Lessee is several persons or a partnership, Lessee's
obligations are joint or partnership and also several. Unless
repugnant to the context, "Lessor" and "Lessee" mean the person or
persons, natural or corporate, named above as Lessor and as Lessee
respectively, and their respective heirs, executors,
administrators, successors and assigns.
26.0 AUTHORITY. Contemporaneously with the signing of this Lease,
Lessee shall furnish to Lessor a certified copy of the resolution
of the Board of Directors of Lessee authorizing Lessee to enter
into this Lease, and Lessor shall furnish appropriate evidence of
the authority of Lessor to enter into this Lease.
27.0 WORK TO BE PERFORMED BY POLAROID CORPORATION. Lessor will purchase
the Land and the Building from Polaroid Corporation ("Polaroid")
contemporaneously with the execution and delivery of this
Agreement. Under the purchase and sale agreement between Lessor
and Polaroid (the "Purchase Agreement"), a copy of which has been
provided to the Lessee,
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Polaroid has agreed to install a new steam line to serve the
Building and to provide steam to the Building while the new line
is being installed. Polaroid has also agreed: (i) to allow Lessor
and Lessee to perform wipe tests in the clean room on the first
floor of the Building, and (ii) at Polaroid's expense, to perform
any cleanup needed to eliminate Hazardous Materials therein.
Lessor agrees to use reasonable efforts to ensure that Polaroid
fulfills such obligations.
WITNESS the execution hereof under seal as of the day and year
first above written.
LESSOR: MASSACHUSETTS INSTITUTE OF
TECHNOLOGY
Date: February 8, 1996, 1996 By:/S/ Xxxxxx X. Xxxxxxxx
---------------- -----------------------------
Xxxxxx X. Xxxxxxxx
Director of Real Estate
Hereunto duly authorized
LESSEE: ANALOG DEVICES, INC.
Date: February 8, 1996, 1996 By:/S/ Xxxxxx X. XxXxxxxxx
---------------- -----------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: V.P. Finance and CFO
Hereunto duly authorized
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EXHIBIT A - PREMISES
--------------------
DESCRIPTION
-----------
The land with the buildings thereon in Cambridge, Massachusetts,
bounded and described as follows:
Northerly: by State Street;
Easterly: by Xxxxxx Street;
Southeasterly: by Albany Street;
Southwesterly: by Massachusetts Avenue; and
Westerly: by Smart Street.
Said premises contain 120,847 square feet of land more or less.
Subject to a notice of variance granted to Xxxxxxxxx Machine
Company dated October 27, 1964, recorded with the Middlesex County
South District Registry of Deeds at Book 10676, Page 366 and filed for
registration with the Middlesex County South Registry District of the
Land Court as Document No. 412081.
For title see the following three deeds to the Seller: (1) deed of
PneumoDynamics Corporation dated June 12, 1972, recorded with said
Deeds at Book 12224, Page 402 and filed for registration with the
Middlesex County South Registry District of the Land Court as Document
No. 498460; (2) deed of Massachusetts Institute of Technology dated
September 9, 1977 and recorded with said Deeds at Book 13282, Page 401;
and (3) deed of Xxxxx Xxxxxx dated November 30, 1989 and recorded with
said Deeds at Book 20232, Page 320. See also Certificate of Title No.
137943.
38
EXHIBIT B - WORK LETTER
-----------------------
This Work Letter is incorporated by reference into the Lease dated
February 8, 1996 by and between Massachusetts Institute of Technology,
as Lessor, and Analog Devices, Inc. as Lessee. Terms defined in or by
reference in the Lease not otherwise defined herein shall have the same
meaning herein as therein.
1. ADDITIONAL DEFINITIONS. Each of the following terms shall
have the meaning stated immediately after it:
CONSTRUCTION AUTHORIZATIONS. Collectively, all permits,
licenses and other consents and approvals required from any
governmental authority for the construction of Lessee's Work.
LESSEE'S GENERAL CONTRACTOR. A general contractor selected
by Lessee and approved in writing by Lessor, who will be
engaged by Lessee to construct Lessee's Work.
LESSEE'S WORK. All improvements, alterations and additions which
Lessee wishes to make to the Premises as part of the initial
preparation thereof for Lessee's occupancy. All Lessee's Work
shall be performed in a good and workmanlike manner consistent
with existing conditions within the Building and shall be of a
quality equal to or better than existing conditions.
WORKING DRAWINGS. The working drawings and specifications for
Lessee's Work, to be prepared by Lessee and Lessee's architect in
accordance with this Work Letter. The Working Drawings shall be
prepared in compliance with all applicable Legal Requirements and
stamped by registered Massachusetts professionals, and shall
consist of all architectural and engineering plans and
specifications which are required to finish the Premises or to
obtain any Construction Authorization required therefor.
2. PREPARATION OF THE PREMISES. Lessee shall perform Lessee's
Work at Lessee's sole cost and expense.
3. INSURANCE. Prior to the commencement of any design work on
Lessee's Work, Lessee shall provide to Lessor an original
certificate of insurance, in customary form, for each
architect and engineer retained by Lessee in connection with
the design and/or construction of Lessee's Work, which
certificate shall evidence a current "errors and omissions"
insurance policy as in effect, in an amount reasonably
acceptable to Lessor. Prior to the commencement of the
construction of Lessee's Work, Lessee shall provide to Lessor
an original certificate of insurance for the general
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39
construction of Lessee's Work, which certificate shall evidence a
current general liability insurance policy as in effect, in an
amount reasonably acceptable to Lessor, naming Lessor as an
additional insured.
4. WORKING DRAWINGS. Lessee shall be solely responsible for the
preparation and completion of all preliminary and final
Working Drawings. Lessee shall retain its own architects and
engineers to prepare Working Drawings, PROVIDED THAT Lessor
first approves such engineers and architects so selected by
Lessee, which approval shall not be unreasonably withheld or
delayed. Lessee shall provide copies of the preliminary
Working Drawings to Lessor, and Lessor shall provide to
Lessee within one (i) business day thereafter a list of
corrections and modifications which Lessor requires to be
made to the Working Drawings.
Lessee shall revise the preliminary Working Drawings to
incorporate the corrections and modifications requested by Lessor
and shall submit final Working Drawings to Lessor for its
approval. Lessor shall review the final Working Drawings and,
within one (1) business day after receipt thereof, Lessor shall
either (a) notify Lessee that Lessor has approved the final
Working Drawings, or (b) provide to Lessee a list of corrections
and modifications which Lessor requires to be made to the Working
Drawings. In the event Lessor returns the Working Drawings to
Lessee for correction or modification, Lessee shall diligently
correct the Working Drawings and re-submit them to Lessor for
approval pursuant to the preceding provisions of this paragraph.
No work shall be performed until final Working Drawings have been
approved in writing by Lessor.
The review and/or approval by Lessor or its architect or engineers
of any plans, sketches or Working Drawings submitted by Lessee
relating to Lessee's Improvements shall not (i) constitute an
opinion or representation by Lessor that the same are in
compliance with all applicable Legal Requirements and the
provisions of all applicable insurance policies or as to the
feasibility of constructing the work shown thereon, or (ii) impose
on Lessor any responsibility for a design defect, it being agreed
that all such responsibility shall remain solely with Lessee.
Lessee shall reimburse Lessor, promptly upon demand therefor, for
all costs and expenses reasonably incurred by Lessor in reviewing
any plans, drawings and specifications submitted by Lessee
pursuant to this Work Letter, which reimbursement shall be due and
payable as Additional Rent.
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40
5. LESSEE'S GENERAL CONTRACTOR. Lessee shall obtain the prior
reasonable written approval of Lessor as to Lessee's General
Contractor.
6. LESSEE'S WORK. Lessee shall be solely responsible for
obtaining all Construction Authorizations required for
Lessee's Work. Lessee shall apply for and maintain in full
force and effect (or cause Lessee's General Contractor to
apply for and so maintain) all Construction Authorizations
required for the construction of Lessee's Work, and upon
completion of Lessee's Work shall obtain a certificate from
the appropriate governmental authority that Lessee's Work has
been completed in accordance with Legal Requirements. Lessee
shall deliver to Lessor a copy of said certificate promptly
after receiving the same.
Promptly after receiving all Construction Authorizations required
for Lessee's Work, Lessee shall cause Lessee's General Contractor
to commence construction and diligently to proceed to completion
thereof. All construction shall be performed in a good and
workmanlike manner, using new materials and in compliance with the
Working Drawings, the Construction Authorizations, all Legal
Requirements, and the provisions of all applicable insurance
policies.
Lessee shall pay promptly for all labor and materials supplied to
Lessee in connection with Lessee's Work, shall not cause or permit
any liens for such labor or materials to attach to the Premises,
and shall bond or discharge any such lien which may be filed or
recorded within fifteen (15) days after Lessee receives actual
notice of such filing or recording.
The construction of Lessee's Work shall be subject to the
requirements set forth in Section 11.0(f) of the Lease. Lessor may
inspect such work at any time or times and shall promptly give
notice to Lessee of any observed defects. Lessee shall indemnify,
defend and hold harmless Lessor from and against any and all
liability, damage, penalties or judgments and from and against any
claims, actions, proceedings and expenses and costs in connection
therewith, including reasonable attorneys' fees, arising out of or
resulting from the design or construction of Lessee's Work.
Lessee shall obtain from Lessee's General Contractor a guaranty
against construction defects for a period of not less than one (1)
year.
7. DELAYS. No delay by Lessee, Lessee's architects or
engineers, Lessee's General Contractor, or any subcontractor
or supplier thereof shall affect the Rent Commencement Date.
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41
8. LESSOR'S AND LESSEE'S REPRESENTATIVES. Prior to the
commencement of any design work for the Premises, each party
hereto shall designate in writing to the other a person as
"Lessor's Representative" and "Lessee's Representative"
respectively, which person shall be available during ordinary
business hours to review the progress of the work and to
respond to issues which arise during construction. Each
party may rely on the other's Representative with respect to
all matters which pertain to this Work Letter, each party
having authorized its Representative to make decisions
binding upon such party with respect to such matters.
9. GENERAL. A breach by Lessee of any provision of this Work
Letter shall constitute a default under the Lease, for which
Lessor shall have all remedies therein provided.
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