GATEWAY DEVELOPERS, LLC
OFFICE LEASE
CITY SQUARE
BOSTON (CHARLESTOWN), MASSACHUSETTS
ARTICLE SECTION CAPTION PAGE
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I. BASIC LEASE PROVISIONS 1
1.1 Introduction 1
1.2 Basic Data 1
II. DESCRIPTION OF PREMISES AND
APPURTENANT RIGHTS: TERM 3
2.1 Location of Premises; Term 3
2.2 Appurtenant Rights and Reservations 5
2.3 Parking Rights 7
III. RENT 8
3.1 Fixed Rent 8
IV. USE OF PREMISES 8
4.1 Permitted Use 8
4.2 Alterations 11
V. ASSIGNMENT AND SUBLETTING 12
5.1 Prohibition 12
VI. DELIVERY OF PREMISES AND RESPONSIBILITY
AND RESPONSIBILITY FOR REPAIRS CONDITION
OF PREMISES 14
6.1 Delivery of Possession of Premises 14
6.2 Plans and Specifications 16
6.3 Preparation of Premises 17
6.3A Landlord's Payment 19
6.3B Subtenant Completion 20
6.4 Repairs to be Made by Landlord 22
6.5 Tenant's Agreement 23
6.6 Floor Loan - Heavy Machinery 24
VII. SERVICES TO BE FURNISHED BY LANDLORD
AND UTILITY CHARGES 24
7.1 Landlord's Services 24
7.2 Payment of Utility Charges 26
ARTICLE SECTION CAPTION PAGE
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VIII. REAL ESTATE TAXES AND OTHER EXPENSES 26
8.1 Xxxxxx's Share of Real Estate Taxes 26
8.2 Tenant's Share of Operating Expenses 29
IX. INDEMNITY AND PUBLIC LIABILITY INSURANCE 36
9.1 Tenant's Indemnity 36
9.2 Public Liability Insurance 36
9.3 Tenant's Risk 37
9.4 Injury Caused by Third Parties 37
X. LANDLORD'S ACCESS TO PREMISES 38
10.1 Landlord's Right of Access 38
10.2 Exhibition of Space to Prospective Tenants 38
XI. FIRE, EMINENT DOMAIN, ETC. 39
11.1 Damage 39
11.2 Substantial Damage 39
11.3 Rent Abatement 41
11.4 Damage to Building 41
11.5 Definition of Substantial Damage 41
11.6 Taking 41
11.7 Rent Abatement 42
11.8 Award 42
XII. LANDLORD'S REMEDIES 43
12.1 Events of Default 43
12.2 Remedies 44
12.3 Landlord's Default 46
XIII. MISCELLANEOUS PROVISIONS 46
13.1 Extra Hazardous Use 46
13.2 Waiver 47
13.3 Covenant of Quite Enjoyment 48
13.4 Notice to Mortgagee and Ground Lessor 49
13.5 Assignment of Rents 49
13.6 Mechanics' Liens 50
13.7 No Brokerage 50
13.8 Invalidity of Particular Provisions 51
13.9 Provisions Binding, Etc. 51
13.10 Recording 51
13.11 Notices 51
13.12 When Lease Becomes Binding 52
13.13 Paragraph Headings 52
13.14 Rights of Mortgagee/Ground Lease 52
13.15 Status Report 53
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ARTICLE SECTION CAPTION PAGE
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13.16 Tenant's Financial Condition 53
13.17 No Partnership 54
13.18 Holding Over 54
13.19 Non-Subrogation 54
13.20 Governing Law 54
13.21 Definition of Additional Rent 54
13.22 Extension Option 54
13.23 Right of First Offer 55
EXHIBITS A Description of Premises
B Description of Lot
C Description of Work
C-1 Landlord/Tenant Matrix
D Broker's Determination
E Parking Plan
F HVAC Specifications
G Notice of Lease
H Ground Lessor SNDA
I Cleaning Specifications
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THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in the
Building (as defined below) to be constructed in Boston (Charlestown),
Massachusetts on the lot (the "Lot") described on Exhibit "B" hereto.
The parties to this instrument hereby agree with each other as follows:
ARTICLE I
BASIC LEASE PROVISIONS
1.1 INTRODUCTION. As further supplemented in the balance of this instrument
and its Exhibits, the following sets forth the basic terms of this Lease
and, where appropriate, constitutes definitions of certain terms used in
this Lease.
1.2 BASIC DATA.
Date:
Landlord: Gateway Developers, LLC, a
Massachusetts limited liability company
Present Mailing Address: 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Tenant: Xxxxx, Inc.
Present Mailing Address
of Tenant: 00 Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Lease Term or Term: 144 calendar months (plus the partial
month, if any, immediately following the
Commencement Date as defined in
Section 6.2(e).
Target Date: August 1, 2002
Fixed Rent: For and with respect to the first
seventy-two (72) calendar months of the term
of this lease, plus the partial month, if
any, immediately succeeding the Commencement
Date at the rate of $33.00 per square foot
per annum of rentable area for the first
75,000 square feet of rentable area and
$35.00 per square foot per annum of rentable
area of the Premises for the remainder of the
Premises; and for and with respect to the
balance of the initial term of this lease at
the rate of
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$36.00 per square foot per annum of the
rentable area of the Premises for the first
75,000 square feet of rentable area and
$40.00 per square foot per annum of the
rentable area of the Premises for the
remainder of the Premises. Fixed Rent shall
be payable in monthly installments equal to
1/12th of the annual Fixed Rent.
Use: For general office purposes only.
Description of Space:
(Herein the "Premises") See attached Exhibit A, containing
approximately 95,000 square feet of rentable
area to be determined using the BOMA method
of measurement subject to adjustment as set
forth in Article VI, not to exceed 95,000
square feet of rentable area.
Tenant's Tax Share: A fraction the numerator of which
is the rentable area of the Premises and the
denominator of which is the rentable area of
the Building.
Base Taxes: The Taxes (as hereinafter defined)
for and with respect to the first fiscal tax
year in which the Building is fully assessed
as a completed structure ("1st Tax Period").
Base Operating Expenses: The Operating
Expenses (as hereinafter defined) for and
with respect to the first twelve (12)
calendar months of the Term of this lease
(the "Base Year"), grossed up in accordance
with Section 8.2(g).
Lot: The parcel of land described on
Exhibit B hereto.
Building: The interconnected building
including the Garage located on the Lot (the
Premises being located in each wing thereof,
"Wing One" (North Washington Street) and
"Wing Two" (Water Street).
Rentable Floor Area
of the Building: 168,000 rentable square feet of
floor area as determined using BOMA method of
measurement, subject to adjustment as set
forth in Article VI.
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Security Deposit: N/A
Guarantor of Tenant's
Obligations: N/A
Brokers None
ARTICLE II
DESCRIPTION OF PREMISES
AND APPURTENANT RIGHTS; TERM
2.1 LOCATION OF PREMISES; TERM. (a) Landlord hereby demises and leases to
Tenant, and Tenant hereby accepts from Landlord, the Premises identified
in the foregoing portions of this Lease for and during the Lease Term.
(a) The Lease Term shall begin on the Commencement Date as defined in
Article VI. The Lease Term shall continue for the period set forth
in Section 1.2 hereof, unless sooner terminated as hereinafter
provided, and without any right of renewal or extension, except as
expressly set forth in this Lease. After the Commencement Date,
upon the request of either party, Landlord and Tenant shall enter
unto an instrument confirming the Commencement Date and the
expiration date of the Lease.
(b) As used herein the following terms shall have the following
meanings:
For the purposes of this Lease, a "Tenant Delay" shall mean any
actual delay in the completion of Landlord's Work caused by a
Tenant Change Order (as hereinafter defined) or any act or
negligence of Tenant or its agents, employees, contractors or
invitees or any failure by Tenant to act when Tenant has a duty so
to act under the law or under the terms of this Lease, including,
without limitation, (i) any failure by Tenant to deliver to
Landlord any draft, revised or final versions of Tenant's Plans or
to take any other action required of Tenant under this Lease
within the period specified in this Lease, (ii) in instances for
which the Lease specifies no period in which Tenant shall act, any
failure by Tenant to respond to any reasonable request for
information relating to Tenant's Work or otherwise to cooperate
reasonably with Landlord, within a reasonable time after receiving
from Landlord a written request for such information or
cooperation.
For the purposes of this Lease, a "Landlord Delay" shall mean any
actual delay in the completion or commencement of the Tenant Work
caused by any act or negligence of Landlord or its agents,
employees, or contractors or any failure by Landlord to act when
Landlord has a duty so to act under the terms of this Lease,
including, without limitation, (i) any failure by Landlord to
deliver to Tenant any draft, revised or final versions of plans
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to be prepared by or at the direction of Landlord hereunder or to
take any other action required of Landlord under this Lease within
the periods specified in this Lease, (ii) in instances for which
this Lease specifies no period in which Landlord shall act, any
failure by Landlord to respond to any reasonable request for
information relating to Xxxxxx's Work or otherwise to cooperate
reasonably with Tenant, within a reasonable time after receiving
from Tenant a written request for such information or cooperation,
or (iii) any failure by Landlord to complete the Landlord's Work
by the Target Date (as hereinafter defined).
In the event that either party claims that the other has caused a
Landlord Delay or a Tenant Delay, as applicable, the parties shall
continue to perform their obligations hereunder in a manner so as
to avoid any further delay. Landlord and Xxxxxx each agree to
promptly notify each other of any delay claimed by it against the
other, and to notify each other in advance of any reasonably
foreseeable delay, and the parties shall meet as soon as
reasonably possible to discuss such delay claim, or such
foreseeable delay claim, as applicable, but in no event shall the
failure to reach agreement on such delay excuse either party from
performing hereunder and waive such party's right to such delay
claim.
For purposes of this Lease, "Landlord's Force Majeure" shall mean
any actual delay due to governmental regulations, unusual scarcity
of or inability to obtain labor or materials (despite the exercise
of reasonable efforts to obtain the same), labor difficulties fire
or casualty or other causes reasonably beyond Xxxxxxxx's control.
For the purposes of this Lease, "Tenant's Force Majeure" shall
mean any actual delay due to governmental regulation, unusual
scarcity of or inability to obtain labor or materials (despite the
exercise of reasonable efforts to obtain the same), labor
difficulties, fire or casualty or other causes reasonably beyond
the Tenant's control.
Each party shall provide the other with written notice as promptly
as possible after the occurrence of a claimed Force Majeure event
hereunder and of the expected duration of the anticipated delay,
and shall also notify the other as soon as such first party's
Force Majeure event has ended, and shall use all reasonable
efforts to cure the Force Majeure event.
(c) Subject to Tenant Delay and Landlord's Force Majeure, Landlord
shall use reasonable speed and diligence in the construction of
the Building and shall use its best efforts "to deliver" the
Building and Premises to Tenant for its occupancy on or before
August 1, 2002 (the "Target Date"). The failure "to deliver" the
Premises and Building to Tenant for its occupancy by the Target
Date shall in no way affect the validity of this Lease or the
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obligations of Tenant hereunder nor shall the same be construed in
any way to extend the term of this Lease. Notwithstanding the
foregoing, if the Premises and Building shall have not been
delivered to Tenant within the meaning of Section 6.1 hereof
within thirty (30) days after the Target Date, then except as
expressly provided herein, Tenant shall not have any claim against
Landlord and Landlord shall have no liability to Tenant, by reason
thereof. If the Premises and the Building are not deemed delivered
to Tenant under Section 6.1 hereof by the Target Date (extended to
the extent of any Tenant Delay or Landlord's Force Majeure) then
as Tenant's sole right and remedy in respect thereof, Tenant shall
have, so long as Tenant is not in default under this Lease beyond
the expiration of applicable notice and/or cure periods, a credit
against the Fixed Rent first coming due hereunder in an amount
equal to one (1) day's Fixed Rent for the Premises for each day
after the Target Date (as so extended) until such delivery has
been deemed made, but in any event such credit shall cease upon
the date the Tenant shall first open for business in the Premises.
(By way of example only, if the Premises and the Building are
"delivered" on October 1, 2002, and the Target Date was August 1,
2002, then, following the Commencement Date, Tenant shall be
entitled to a credit equal to the daily Fixed Rent rate for the
Premises multiplied by 31, which amount Tenant may apply to the
Fixed Rent due after the Commencement Date until the balance of
said credit is equal to zero.)
If the Premises are not deemed delivered to Tenant under Section
6.1 hereof by August 1, 2003, Tenant shall have the right to
terminate this Lease by written notice to Landlord given before
the date of such delivery. If the Landlord having used reasonable
efforts to deliver the Premises is unable to deliver the Premises
by December 31, 2003 Landlord shall have the right to terminate
this Lease by written notice to Tenant given before the date of
such delivery.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. Tenant shall have, as appurtenant
to the Premises, the nonexclusive right to use and to permit its
invitees to use in common with others, public or common lobbies, if any,
elevators, hallways, stairways, loading docks and loading areas, service
lifts, sanitary facilities, pipes, ducts, conduits, shafts, wires and
appurtenant equipment providing electricity, telephone, water, sewer,
telecommunications and other utilities to the Premises and equipment to
the roof and all other common areas, if any, located in the Building and
all sidewalks, access roads and driveways, located on the Lot and
serving the Building (the "Common Areas"), but such rights shall always
be subject to reasonable rules and regulations from time to time
established by Landlord by suitable notice and to the right of Landlord
to designate and change from time to time areas and facilities so to be
used, provided that any such change shall not materially interfere with
Tenant's use of, or access to, the Premises. All elevators serving Wing
One and all parking levels of the Garage that serve Wing One shall not
be deemed part of the Premises, but
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shall be for the exclusive use of Tenant and its agents, employees and
invitees. Landlord acknowledges that of the elevators in Wing One one
serves all floors of the Garage and the first floor of Wing One above
the Garage and the other two elevators serve the top floor of the Garage
and all floors of Wing One above the Garage. The lobby of Wing One shall
be deemed part of the Premises. At all times during the Term, Landlord
shall make available at least one (1) elevator serving the portion of
the Premises in Wing Two and the top level of the Garage, which elevator
shall be for the exclusive use of Tenant and its agents, employees and
invitees.
Excepted and excluded from the Premises are the roof or ceiling, the
structural floor and all perimeter walls of the Premises, except in each
case the inner surfaces thereof, but the entry doors to the Premises are
not excluded from the Premises and are a part thereof for all purposes;
and Tenant agrees that Landlord shall have the right to place in the
Premises (but in such manner as to reduce to a minimum interference with
Xxxxxx's use of the Premises) utility lines, pipes and the like to serve
premises other than the Premises, and to replace, maintain and repair
such utility lines, pipes and the like, in, over and upon the Premises.
Notwithstanding the foregoing, Xxxxxx's prior consent, which consent
Tenant shall not unreasonably withhold or delay, shall be required with
respect to any exhaust systems to be located within the Premises and
which are to serve restaurants located outside of the Premises. Tenant
shall have the right to place on the roof of Wing One and Wing Two,
supplementary HVAC equipment, satellite antennae and satellite dishes
which are to serve the Premises and are not to be utilized by any other
person other than the occupants of the Premises and are to be placed on
the roof in such location as shall be reasonably approved by Landlord;
provided, however, that Tenant shall have Tenant's pro-rata share of all
the roof space on Wing One and Wing Two that is made available or used
for antennae and satellite dishes or supplementary HVAC equipment for
its exclusive use. Any other antennae or satellite dishes on said roof
shall be installed thereon in such a manner so as not to interfere with
the antennae or dishes of Tenant. All antennae and satellite dishes and
supplementary HVAC equipment shall be installed so as to minimize the
visibility of such antennae or dishes or supplementary HVAC equipment
from outside the Building. All of such installation and maintenance of
such antennae, dishes and supplementary HVAC equipment shall be
performed by contractors reasonably approved by Landlord and in a manner
so as not to void any roofing warranty and Tenant shall be responsible
for any damage to the roof caused by the installation or maintenance of
the same, and at the end of the term of the Lease, the Tenant shall
remove all of such antennae, dishes and supplementary HVAC equipment
from the roof and shall repair all damage caused by the installation or
removal of the same.
Subject to reasonable rules and regulations imposed from time to time by
Landlord, the Building shall be open and access to the Premises shall be
freely available, subject to interruption due to causes beyond
Landlord's reasonable control, at all times. Tenant acknowledges that,
in all events, Tenant is
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responsible for providing security to the Premises and its own
personnel, and Tenant shall indemnify, defend with counsel reasonably
acceptable to Landlord, and save Landlord harmless from any claim for
injury to person or damage to property asserted by any personnel,
employee, guest, invitee or agent of Tenant which injury or damage is
suffered or occurs in the Premises by reason of the act of an intruder
or any other person in or the Premises.
2.3 PARKING RIGHTS. During the term hereof, Tenant shall have the right to
the daytime use (i.e. no later than 7 PM on any day) of 115 parking
spaces ("daytime parking") located within the garage serving the
Building. Such spaces may be on an assigned or unassigned basis at
Landlord's discretion and Tenant shall comply with all reasonable rules
and regulations which Landlord may impose from time to time for the
regulation of such parking (such rules and regulations shall provide,
INTER ALIA, that no towing can be made without reasonable advance
notice). In addition, without charge to Tenant, Tenant shall have the
exclusive use of 75 parking spaces in the Garage at all times. The
location of Tenant's daytime parking spaces and of such exclusive spaces
shall be as provided in the Parking Plan set forth on Exhibit E hereto.
Except as otherwise set forth in this paragraph, no parking shall be
allowed to Tenant on an overnight basis nor shall the parking rates so
allocated to Tenant be utilized by other than Tenant's officers or
employees or assigns or sublessees or invitees, and Tenant shall have no
right to assign or sublicense any of its parking rights hereunder except
to a permitted assignee of this Lease or sublesee of the Premises or to
a party providing business services to Tenant. The foregoing, however,
shall not limit Tenant from reimbursement by its employees or officers
for any or all of such charges. Landlord shall bear no liability in
respect of any vehicles (or their contents) parked in such facility and
Tenant waives all liability which Landlord may have in respect thereof,
except to the extent the same results from Landlord's negligence or
willful misconduct. As consideration for such daytime parking rights
Tenant shall pay to Landlord an amount equal to the then market charge,
as imposed by Landlord, for the daytime parking rights (the other
seventy-five of such parking rights shall be without charge). Initially
such charge shall be at the rate of $150 per parking right per month but
shall be subject to change from time to time (but not more than once
annually) by the Landlord. Such payment shall be considered to be
Additional Rent under this Lease and Xxxxxx's failure to pay the same
shall be considered a failure in the payment of rent under this Lease.
Such payment shall be due at the same time as the monthly payments of
Fixed Rent in advance. In the event that during the Lease Term,
additional area shall be added to the Premises so that the Rentable
Floor Area of the Premises shall increase ("Expansion Space") then the
number of parking spaces available to Tenant under this section shall be
increased by two spaces for each 1,000 square feet of Rentable Floor
Area in the Expansion Space, which spaces shall be considered to be
daytime parking spaces for all purposes; provided, however, that such
additional spaces shall be made available to Tenant only if, and to the
extent, that Landlord has such spaces available and has not committed
such spaces to other tenants or persons, but if the former tenant of the
Expansion Space had any
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parking spaces for its use, such parking spaces shall be made available
to Tenant. Whenever any other parking spaces within the Garage shall
become available for monthly use by other than the tenants or occupants
of the Building or their customers, Landlord shall notify Tenant thereof
and of any terms for leasing of the same. The provisions of this Section
2.3 shall apply during the Original Lease Term and any extension
thereof.
ARTICLE III
RENT
3.1 FIXED RENT. Tenant agrees to pay to Landlord at the Present Mailing
Address of Landlord, or as directed by Xxxxxxxx, without notice, demand,
off-set or deduction (except as expressly permitted hereunder), on the
Commencement Date and thereafter, monthly, in advance, on the first day
of each and every calendar month during the Lease Term, a sum equal to
the monthly Fixed Rent specified in Section 1.2 hereof; provided,
however, that the first payment of monthly Fixed Rent coming due under
this Lease shall be made on the first day of the second calendar month
of the Term of this lease and shall be made for and with respect to the
period of time from the Commencement Date of the term of this lease
through the end of said calendar month.
Fixed Rent for any partial month shall be paid by Tenant at such rate on
a pro-rata basis (based on the per diem rate of Fixed Rent multiplied by
the number of days in such partial month included in the Term) and, if
the Lease Term commences on a day other than the first day of a calendar
month, the first payment which Tenant shall make shall be a payment
equal to a proportionate part of such monthly Fixed Rent for the partial
month from the Commencement Date to the first day of the succeeding
calendar month, and the monthly Fixed Rent for such succeeding calendar
month.
ARTICLE IV
USE OF PREMISES
4.1 PERMITTED USE. Xxxxxx agrees that the Premises shall be used and
occupied by Tenant only for the purpose specified as the use thereof in
Section 1.2 of this Lease, and for no other purpose or purposes.
Xxxxxx further agrees to conform to the following provisions during the
entire Lease Term:
(a) Tenant shall cause all freight (including furniture, fixtures and
equipment used by Tenant in the occupancy of the Premises) to be
delivered to or removed from the Building and the Premises in such
areas reasonably designated by Landlord therefor and in accordance
with reasonable rules and regulations established by Landlord
therefor, the hours for such delivery to be fixed so as not to
violate the terms of the transportation
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access plan agreement ("TAPA") entered into by Landlord with the
City of Boston;
(b) Subject to Legal Requirements and so long as Tenant leases at
least 50% of the office portions of the Building Tenant shall have
the exclusive right to install signage on the door of the Premises
and on the exterior of the Building, above the ground floor,
subject only to the exceptions set forth below. The parties
acknowledge that Xxxxxx and Xxxxxxxx ("V&C") is a current tenant
in Wing Two and that Landlord has obligated itself to provide
certain signage rights in its lease to V&C. Tenant acknowledges
that it has been informed by Landlord that V&C has the one time
option to choose the location of its signage on the exterior of
Wing Two as follows: (i) between the first and second floor; or
(ii) between the second and third floor. Landlord shall use
continuing reasonable efforts to cause V&C (or its successors,
assigns or sublessees) to select option (i). Thereafter, V&C may
install signage ("V&C Sign") only as set forth above, which
signage may not be altered during the term of the V&C lease except
to change the name to any permitted assignee or sublessee of all
or substantially all of the V&C premises but any such changed sign
shall be of a similar size and style and shall be in lieu of the
V&C sign, and signage rights shall not transfer to any subtenant
of less than substantially all of the V&C premises or licensee, or
any other party that may acquire rights to use and occupy a
portion of the premises currently leased by V&C. Upon the
expiration or earlier termination of the V&C lease, the signage
rights set forth above shall terminate and the V&C Sign shall be
promptly removed by Landlord, at its sole cost and expense.
Landlord represents that the V&C lease has a 10 year initial term
with 2-5 year options of extension. The Landlord shall have the
right to install on the exterior of the Building in the signage
band serving the ground floor retail premises signage for the
ground floor retail tenants. Tenant shall not place on the
exterior of exterior walls (including both interior and exterior
surfaces of windows and doors) or on any part of the Building
outside the Premises, any sign, symbol, advertisement or the like
visible to public view outside of the Premises except for a sign
on the door of the Premises of the type commonly and customarily
found in first-class office buildings for the purpose of
identifying and locating the Premises and except for a sign
located on the exterior of Wing One, the size and design of which
sign shall always be subject to the prior approval of Landlord
which shall not be unreasonably withheld or delayed and to
compliance with all applicable law and regulations. Without
Tenant's prior written approval signed by an executive officer of
Tenant, no sign of any other tenant shall be located on the
exterior of the Building above the ground floor level, except for
the V&C sign as set forth above. Tenant will not install drapes,
window blinds or other window coverings on exterior windows except
for those reasonably approved by Landlord and in all events all
such coverings shall be of a color reasonably approved by
Landlord;
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(c) Tenant shall not perform any act or any practice which injures the
Premises, or any other part of the Building, or causes any
offensive odors or loud noise, or constitutes a nuisance to any
other tenant or tenants or occupants or other persons in the
Building, or be detrimental to the reputation or appearance of the
Building; Landlord shall impose a restriction to the substance of
that set forth in this subsection (c) in leases of all other
tenants in the Building and shall use reasonable efforts to
enforce such restrictions, but Landlord shall have no liability to
Tenant in respect of its failure to enforce such restriction.
(d) At Tenant's option, Landlord shall refer to Wing One of the
Building as the "Xxxxx Building" and shall not be entitled to
change the name of Wing One during the Term and shall not name the
Building or Wing Two after another tenant. Tenant shall not use
the name of the Building directly or indirectly in connection with
Xxxxxx's business, except as a part of Tenant's address, and
Landlord reserves the right to change the name of the Building at
any time but in no event shall the name of the Building be changed
to the name of any other tenant of the Building or any business
organization so long as Tenant leases at least 35% of the office
portion of the Building and no other tenant leases more space in
the Building;
(e) The Tenant shall not use, handle, store, release or discharge
hazardous materials, oil, or hazardous wastes in the Premises
except for small amounts of cleaning materials and other materials
normally used in office uses which might be deemed to be hazardous
materials or hazardous waste under applicable law, provided that
in its use, handling, storage, release and discharge thereof the
Tenant shall comply with all applicable law and with the
requirements of the manufacturers thereof;
(f) Within the Premises, Tenant shall comply with the Americans With
Disabilities Act (42 U.S.C. Section 12101 et seq.) and the
regulations and Accessibility Guidelines for Buildings and
Facilities issued pursuant thereto (collectively the "ADA"), to
the extent the same are applicable to the Premises; provided that
Tenant shall not be required to so comply with the ADA to the
extent that the Premises when delivered by Landlord to Tenant were
not in compliance with the ADA or where compliance by Tenant is
required as a result of any action by Landlord.
4.2 ALTERATIONS. After initial completion of any work to be done by Xxxxxx
as provided in Article VI, Tenant shall not alter or add to the
Premises, except in accordance with written consent from Landlord, which
Landlord agrees not unreasonably to withhold or delay as to alterations
or additions which (i) are not visible from the exterior of the Premises
and (ii) do not materially affect the structure or any mechanical,
electrical or plumbing systems of the Building. Notwithstanding the
foregoing, Xxxxxxxx's prior written consent shall not be
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required with respect to any non-structural, interior alterations to the
Premises which do not adversely affect the mechanical, electrical or
plumbing systems of the Building and have a cost, in each instance, of
less than $100,000, but Tenant shall notify Landlord as and when it
makes any such alterations which are permitted without Landlord's prior
consent. Xxxxxx's work as described in Article VI and all other
alterations, changes, additions and work ("Alterations") made by Tenant
shall be made in accordance with all applicable laws, in a good and
first-class workmanlike manner and in accordance with the reasonable
requirements of Landlord's insurers and Xxxxxx's insurers. Without
limitation, said Xxxxxx's work as described in Article VI and all other
Alterations made by Tenant shall be performed in accordance with the
provisions of this Article IV and of Article VI. Any contractor or other
person undertaking any Alterations of the Premises on behalf of Tenant
shall be covered by Commercial General Liability and Workmen's
Compensation insurance with coverage limits reasonably acceptable to
Landlord and evidence thereof shall be furnished to Landlord prior to
the performance by such contractor or person of any work in respect of
the Premises. Except for generators and HVAC supplemental equipment
which Tenant has installed at its sole cost and expense on the roof of
the Building to exclusively serve the Premises (such installation hereby
is approved but shall be made in accordance with plans and
specifications approved by Landlord such approval not to be unreasonably
withheld or delayed, and in a manner so as not to void any roofing
warranty and by contractors reasonably approved by Landlord, and at the
end of the Term of the Lease, Tenant shall remove all of such equipment
from the roof and shall repair all damage caused by the installation or
removal of the same), all work performed by Tenant in the Premises shall
remain therein and, at termination, shall be surrendered as a part
thereof, except for Tenant's usual trade fixtures, furniture and
equipment, installed prior to or during the Lease Term at Tenant's cost,
which trade fixtures, furniture and equipment Tenant shall remove upon
the termination of this Lease. Tenant agrees to repair any and all
damage to the Premises resulting from the installation thereof or such
removal or, if Landlord so elects, to pay Landlord for the cost of any
such repairs forthwith after actual completion thereof and billing
therefor.
Landlord has given Tenant notice that on or about February 8, 2002 is
(i) the date when Landlord plans to finish its construction of the roof
and to install the rubberized roofing; and (ii) the date when Landlord
plans to install the concrete filling on the roof.
ARTICLE V
ASSIGNMENT AND SUBLETTING
5.1 PROHIBITION. Notwithstanding any other provisions of this Lease, Tenant
covenants and agrees that it will not assign this Lease or sublet (which
term, without limitation, shall include the granting of concessions,
licenses, and the like) the whole or any part of the Premises without,
in each instance, having first
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received the express written consent of Landlord, which consent the
Landlord agrees not to unreasonably withhold, condition or delay,
provided that the following conditions are satisfied, all in Landlord's
reasonable judgment: (a) the proposed assignee or sublessee proposes
office operations in the Premises which are consistent with the image
and quality of the Building; (b) the proposed assignee or sublessee is
not a governmental organization; (c) the proposed assignee or sublessee
has the financial capacity necessary to carry out its obligations under
this Lease or the sublease, as the case may be; (d) the operations
proposed by the assignee or sublessee will not overload the Building's
systems; and (e) any proposed subletting shall not result in a division
of the Premises into more than two units per floor unless Tenant assumes
in writing the cost and expense to restore the Premises upon the
termination of this Lease. Landlord shall respond to any request for
consent within thirty (30) days (ten (10) business days in the case of a
subletting of one (1) floor or less), after receipt of Tenant's request
for consent, and if such request contains a reminder in bold print of
the timing for response, then if Landlord does not timely respond the
consent shall be deemed granted.
Any assignment of this Lease (which term shall include the subletting of
the whole or any part of the Premises other than as permitted hereunder
as set forth below) by Tenant without Landlord's express consent shall
be invalid, void and of no force or effect. In any case where Xxxxxxxx
shall consent to such assignment or subletting, the Tenant named herein
shall remain fully liable for the obligations of Tenant hereunder,
including without limitation, the obligation to pay the Fixed Rent and
other amounts provided under this Lease. Any such request shall set
forth, in detail reasonably satisfactory to Landlord, the identification
of the major business terms upon which proposed assignment or subletting
is to be made, including, without limitation, the rent or any other
consideration to be paid in respect thereto.
It shall be a condition of the validity of any such assignment that the
assignee agrees directly with Landlord, in form reasonably satisfactory
to Landlord, to be bound by all the obligations of Tenant hereunder,
including, without limitation, the obligation to pay Fixed Rent and
other amounts provided for under this Lease and the covenant against
further assignment and subletting, except as expressly permitted
hereunder, but such assignment or subletting shall not relieve the
Tenant named herein of any of the obligations of Tenant hereunder, and
Xxxxxx shall remain fully liable therefor. In no event, however, shall
Tenant assign this Lease or sublet the whole or any part of the Premises
to a proposed assignee or sublessee which has been judicially declared
bankrupt or insolvent according to law, or with respect to which an
assignment has been made of property for the benefit of creditors, or
with respect to which a receiver, guardian, conservator, trustee in
involuntary bankruptcy or similar officer has been appointed to take
charge of all or any substantial part of the proposed assignee's or
sublessee's property by a court of competent jurisdiction, or with
respect to which a petition has been filed for reorganization under any
provisions of the Bankruptcy Code
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now or hereafter enacted, or if a proposed assignee or sublessee has
filed a petition for such reorganization, or for arrangements under any
provisions of the Bankruptcy Code now or hereafter enacted and providing
a plan for a debtor to settle, satisfy or extend the time for the
payment of debt. Tenant shall, within thirty days after demand,
reimburse Landlord for the reasonable out-of-pocket legal fees and
expenses (not to exceed $500 in any one instance) incurred by Landlord
in processing any request to assign this Lease or to sublet all or any
portion of the Premises, whether or not Landlord agrees thereto, and if
Tenant shall fail to reimburse Landlord, the same shall be a default in
Tenant's monetary obligations under this Lease.
Without limitation of the rights of Landlord hereunder in respect
thereto, if there is any assignment of this Lease by Tenant for
consideration or a subletting of the whole of the Premises by Xxxxxx at
a rent or other consideration which exceeds the rent payable hereunder
by Xxxxxx, or if there is a subletting of a portion of the Premises by
Xxxxxx at a rent in excess of the subleased portion's pro rata share of
the rent payable hereunder by Xxxxxx (which shall not include any
consideration given for the use of furniture, telecommunications
equipment or other equipment), then Tenant shall pay to Landlord, as
additional rent, forthwith upon Tenant's receipt of the consideration
(or the cash equivalent thereof) therefor, 50% of any such excess, after
Tenant has recouped the reasonable out-of-pocket costs and expenses
which Tenant has incurred in entering into such assignment or sublet.
The provisions of this paragraph shall apply to each and every
assignment of this Lease and each and every subletting of all or a
portion of the Premises, except to a Permitted Transferee (as defined
below), in each case on the terms and conditions set forth herein. For
the purposes of this Section 5.1, the term "rent" shall mean all Fixed
Rent, additional rent or other payments and/or consideration payable by
one party to another for the use and occupancy of all or a portion of
the Premises.
The provisions of this Section 5.1 relating to the necessity of
Landlord's prior consent shall not, however, be applicable to an
assignment of this Lease by Tenant to (i) a subsidiary (for such period
of time as the stock of such subsidiary continues to be owned by Tenant,
it being agreed that except as hereinafter set forth the subsequent sale
or transfer of fifty percent (50%) or more of the stock of such
subsidiary shall be treated as if such sale or transfer were, for all
purposes, an assignment of this Lease governed by the Provisions of this
Section 5.1); or (ii) controlling corporation; or (iii) corporation
under common control with Tenant (an "affiliate") (but if at any time
such entity ceases to be an affiliate, then except as hereinafter set
forth the same shall be treated as an assignment of this Lease governed
by the provisions of this Section 5.1); or (iv) to an entity which is
acquiring all of Tenant's assets whether through an acquisition of
assets, merger, or consolidation (each such transferee herein a
"Permitted Transferee"); provided (and it shall be a condition of the
validity of any such assignment) that such Permitted Transferee agree
directly with Landlord to be bound by all of the obligations of Tenant
hereunder, including, without limitation, the obligation to pay the rent
and other amounts provided for under this Lease, the covenant to use
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the Premises only for the purposes specifically permitted under this
Lease and the covenant against further assignment except as permitted
herein; but such assignment shall not relieve Tenant herein named of any
of its obligations hereunder, and Tenant shall remain fully liable
therefor. Notwithstanding the foregoing, should Tenant enter into a
sublease of a portion (being less than 50% of the floor area) of the
Premises with a subsidiary or affiliate then the "spin off" of such
subsidiary or affiliate through the sale of stock thereof to a third
party or the merger or consolidation of such subsidiary or affiliate
with such third party where such spin off is accomplished to further the
business objectives of the Tenant and not to avoid the prohibition
against subletting set forth herein shall be permitted without the
necessity of the Landlord's consent, provided that (i) as herein set
forth the Tenant shall remain obligated under this Lease notwithstanding
such subletting and (ii) the sublessee shall agree directly with
Landlord that its sublease is subject and subordinate to this Lease in
all respects and that it will attorn to Landlord, at Landlord's request,
should this Lease terminate for any reason.
ARTICLE VI
DELIVERY OF PREMISES AND
RESPONSIBILITY FOR REPAIRS
CONDITION OF PREMISES
6.1 DELIVERY OF POSSESSION OF PREMISES.
(a) Subject to and in accordance with the terms and conditions of this
Lease, Landlord shall, at its expense, commence and diligently
prosecute to completion in a good and workmanlike manner in
accordance with all applicable laws, rules, regulations,
requirement, statutes, ordinances, by-laws and court decisions
which are now or hereafter in force (the "Legal Requirements"):
(i) the Building and other improvements associated therewith in
accordance with Landlord's Plans and Specifications (as defined
below); and (ii) all other improvements to be constructed on the
Lot (including, without limitation, parking areas, roads,
sidewalks, utility lines, lighting, fire safety systems and
landscaping) necessary for the operation, use and maintenance of
the Building for the purposes set forth herein. Landlord
represents and warrants that to its knowledge as of the date
hereof it has obtained all material federal, state and local
permits and approvals necessary for the construction and operation
of the Building except for a building permit and a conditional use
permit under the Boston Zoning Code and (ii) once such a
conditional use permit is obtained and no longer subject to
appeal, the Use is permitted as of right under applicable zoning
ordinances and under the Ground Lease.
(b) Following substantial completion of the Landlord's Work, Landlord
shall cause its architect Add Inc. (the "Architect"), to measure
the rentable floor area of the Building and the Premises in
accordance with BOMA
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standards for a multi-tenant building, but in no event shall the
loss factor in connection therewith exceed 12%, and to certify
such area and the final usable floor area of the Building and
Premises in writing to Landlord and Tenant and to furnish a copy
of such certifications, along with sufficiently detailed back-up
information include a breakdown of the architect's calculation and
CAD Discs in a commercially standard format, to Tenant for
confirmation by Xxxxxx and Xxxxxx's architect. If within ten (10)
business days after Xxxxxx has received from Landlord such
certifications and backup information Tenant has neither approved
such certifications in writing or given written objection to the
same stating the reasons therefor, then Landlord may give Tenant
notice reminding Tenant that Xxxxxx has not approved or rejected
the same and if within ten (10) business days thereafter Tenant
still fails to act then the certifications shall be deemed
confirmed and approved by Tenant. However, if Tenant timely
objects to such certifications, then the measurement of the
Rentable Floor Area of the Building and Premises shall be made by
an independent third party AIA certified architect chosen jointly
by the Architect and Xxxxxx's architect and the costs of such
third party architect shall be borne jointly by Landlord and
Xxxxxx. Following agreement by the parties on the measurements so
made or its determination by arbitration as set forth above, such
measurements shall then be the "Rentable Floor Area of the
Building" and "Rentable Floor Area of the Premises" and shall be
substituted in the definition of "Rentable Floor Area of the
Building" and "Rentable Floor Area of the Premises" as set forth
in Section 1.2 of this Lease, and that determination of Rentable
Floor Area of the Premises shall then be used in computing and
determining the annual Fixed Rent payable during the original
Lease Term (as set forth under the definition of annual Fixed Rent
in Section 1.2 hereof), the Tenant Allowance (as set forth in
Section 6.3A hereof) and the other provisions of this Lease
involving the Rentable Floor Area of the Building or the Premises.
In addition, Landlord and Xxxxxx shall promptly execute a written
statement in recordable form setting forth the recomputed figures
resulting from such determination.
(c) Landlord shall not, without Tenant's prior written consent not to
be unreasonably withheld or delayed, make any changes to
Landlord's Work that would (i) cause a delay in the Target Date,
(ii) reduce or otherwise materially adversely affect the nature,
quality or capacity of the heating, ventilating, air-conditioning,
plumbing, mechanical (including elevators), electrical, telephone,
telecommunications and other utilities, services, systems and
equipment serving the Premises, or (iii) require any substantial
revision to Tenant's Approved Plans (as defined in Section 6.2
below) or otherwise materially affect the design of the Tenant's
Work (as defined below).
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(d) The Premises shall be conclusively deemed delivered to Tenant as
soon as the initial work to be done by Landlord as set forth in
Exhibit C hereto (the "Landlord's Work or "Landlord Work") has
been substantially completed by Landlord (as defined in Section
6.3B) or would have been so completed except for Tenant Delay. If
any delay in such substantial completion is
(i) due to any change in the Landlord's Work requested by Xxxxxx
(a "Tenant Change Order"); or
(ii) caused in whole or in part by another Tenant Delay
then the Premises shall be deemed ready on the date the same would have
been ready except for such delay caused by a Tenant Change Order or
Tenant Delay.
If as hereinabove provided the Premises are so deemed ready for Tenant's
occupancy prior to the time they are actually ready for Tenant's
occupancy, Tenant shall not (except with Xxxxxxxx's consent) be entitled
to take possession of the Premises for use as set forth herein until the
Premises are in fact actually ready for such occupancy, notwithstanding
the fact because the premises shall have as above stated been deemed
ready for such occupancy that the Term hereof shall on that account have
commenced..
6.2 PLANS AND SPECIFICATIONS. Annexed hereto as Exhibit C-1 is a matrix
showing the elements of Landlord's Work and Xxxxxx's Work. Xxxxxxxx has
prepared and delivered to Tenant Landlord's plans and specifications
("Landlord's Plans and Specifications") for Landlord's Work. The same
have been approved by Tenant. All of Landlord's Work shall be performed
in accordance with Landlord's Plans and Specifications. Xxxxxx agrees to
deliver to Landlord by April 1, 2002 schematic and design plans (herein
called "Schematic Tenant Plans") for the work to be undertaken to
prepare the Premises for Tenant's use and occupancy by Xxxxxx (the
"Tenant Work") for Landlord's review and approval which approval shall
not be unreasonably withheld, conditioned or delayed. Landlord shall
cooperate reasonably with Tenant and its architect in connection with
the preparation of the Schematic Tenant Plans, including, without
limitation, providing copies of the Landlord's Plans and Specifications
and any other information relating to the Building and the Landlord's
Work as Tenant or its architect may reasonably request and permitting
Tenant or its architect reasonable access to the Building and the Lot to
take measurements and to perform inspections.
Any submittal to Landlord which is not responded to by Landlord in
writing within fifteen (15) business days of receipt of the same (and
with respect to any revised submittal, within five (5) business days of
receipt of the same) shall be deemed approved provided that the
submittal contains a statement at a prominent location and in bold type
to the following effect: "If you do not respond to this
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submittal in writing within fifteen (15) business days [or five (5)
business days, as applicable], this submittal shall be deemed approved."
Tenant shall deliver to Landlord within the later of (i) April 1, 2002
or (ii) ninety (90) days after Landlord has approved Tenant's approved
Schematic Tenant Plans, construction drawings (herein called "Initial
Tenant Plans") for the Tenant Work for Landlord's review and approval,
which approval shall not be unreasonably withheld, conditioned or
delayed; provided, however, Landlord may not disapprove any matter that
is consistent with Tenant's approved Schematic Tenant Plans. Landlord
shall cooperate reasonably with Tenant and its architect in connection
with the preparation of the Initial Tenant Plans, including, without
limitation, providing such information as Tenant or its architect may
reasonably request and permitting Tenant or its architect reasonable
access to the Building and the Lot to take measurements and perform
inspections.
For the purposes of this Lease, "Tenant Approved Plans" shall mean the
final version of the Initial Tenant Plans approved by Landlord.
Tenant may, from time to time, submit to Landlord any material changes
or additions to the Tenant's Approved Plans desired by Tenant, which
changes or additions shall be subject to Landlord's approval, which
shall not be unreasonably withheld, conditioned or delayed provided the
same do not delay Landlord's Work or result in any increase to Landlord
in cost, provided, however that in the case where the same do not delay
Landlord's Work but do result in an increase to Landlord in cost then
Landlord shall make the same provided that Xxxxxx has agreed in writing
with Landlord to pay all of such increased costs promptly upon billing
therefor, in which case Tenant shall pay such costs to Landlord promptly
upon billing therefor. Any non-material changes shall not require
Landlord's consent.
6.3 PREPARATION OF PREMISES.
(a) Landlord. Landlord shall perform the work set forth on Exhibit C
hereto and shall not be obligated to perform any other work to the
Premises or Building, except as otherwise expressly set forth
herein.
(b) By Tenant. All work in addition to that set forth on Exhibit C to
prepare the Premises for Tenant's occupancy shall be done by
Tenant at its sole cost and expense in accordance with the terms
of this Lease.
(c) Any additional cost to Landlord in connection with the completion
of the Premises in accordance with the terms of this Lease
(including Exhibit C) resulting from Tenant Change Orders or
Tenant Delay shall be promptly paid by Tenant to Landlord. For the
purposes of the next preceding sentence, the term "additional cost
to Landlord" shall mean any cost in excess of $5000 in the
aggregate over and above such cost as would have been the
aggregate cost to Landlord of completing the Premises in
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accordance with the terms of this Lease and Exhibit C had there
been no Tenant Change Order or Tenant Delay, as such cost is
reasonably determined by Landlord's Architect. Landlord shall pay
to Tenant any additional costs to Tenant (meaning any costs in
excess of $5000 in the aggregate over and above such costs as
would have been the aggregate cost to Tenant of performing
Tenant's Work in accordance with the terms of this Lease had there
been no Landlord Change (as hereinafter defined)) which has
resulted from a change made by Landlord to Landlord's Plans and
Specifications which has not been approved by Tenant (a "Landlord
Change"). Nothing contained in this provision shall limit or
qualify or prejudice any other covenants, agreements, terms,
provisions and conditions contained in this Lease.
(d) With Xxxxxxxx's prior written consent, Tenant shall have the right
to enter the Premises prior to the Commencement Date, without
payment of rent, to perform such work or decoration as to be
performed by, or under the direction or control of, Tenant. Such
right of entry shall be deemed a license from Landlord to Tenant
and any entry thereunder shall be at the risk of Tenant.
(e) Tenant shall be conclusively deemed to have agreed that Landlord
has performed all of its obligations under this Article VI unless
not later than the end of the second calendar month next beginning
after the Commencement Date, Tenant shall give Landlord written
notice specifying the respects in which Landlord has not performed
any such obligations, except that with respect to latent defects,
such period shall be eleven months.
Landlord shall cooperate with Tenant in obtaining all permits and
approvals as are necessary for the construction of the Tenant Work. The
Term of this Lease shall commence (the "Commencement Date") upon the
earlier to occur of (i) 180 days after the date that the Landlord Work
is substantially completed (as defined below) or (ii) the date that
Tenant first commences business operations within any part of the
Premises; provided, however, that if Tenant commences business
operations within some portion, but not all of the Premises prior to the
expiration of such 180-day period then the Term shall only commence with
respect to such portion.
Landlord and Xxxxxx and their contractors shall reasonably cooperate
with each other in scheduling their work so that neither shall
unreasonably delay or interfere with the work of the other. During the
period when Landlord Work and Tenant Work are both being conducted,
Landlord, Tenant and their architects and contractors shall have weekly
meetings in order to discuss the status of the construction and
coordinating construction activities with each other. In addition,
Landlord shall permit Tenant and its contractors access to the Building
prior to the date when the Landlord Work has been substantially
completed at mutually
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agreed upon times so that Tenant may perform work which may be most
timely and economically performed prior to the date of such substantial
completion, such as, by way of example and not by way of limitation,
access to part of the walls within the Building being enclosed so that
Tenant and/or its contractors may install Tenant's computer, data and
telephone lines, but in the performance of such early entry, Tenant
shall not delay Landlord Work and Tenant's contractors shall cooperate
completely with Xxxxxxxx's contractors. Landlord shall give Tenant
reasonable advance notice of its schedule for construction and
reasonable dates for access by Tenant and its contractor.
Xxxxxxxx agrees to obtain from the general contractor performing the
Landlord's Work and from the subcontractor performing portions thereof,
construction warranties that for a period as determined by Landlord (but
not less than one year) such work is free of material defects in
workmanship and materials and conforms in all material respects to
Landlord's final plans including a warranty for no less than ten years
on the roof system of the Building. Landlord agrees to promptly replace
or repair, at its expense, items of Landlord's Work which are then
incomplete or do not conform to the Landlord's final plans as to which
Tenant shall have given notice to Landlord within sixty days after the
date of substantial completion of Xxxxxxxx's Work except that with
respect to latent defects, such period is extended to eleven months. All
construction work required or permitted by this Lease shall be done in a
good and workmanlike manner and in compliance with all applicable Legal
Requirements. Each party or its architect may inspect the work of the
other at reasonable times and shall promptly give notice of observed
defect. Each party is authorized by the other to rely, in connection
with design and construction upon approval and other actions on the
party's behalf by any Construction Representative of the party named
below or any person hereafter designated in substitution or addition by
notice of the party relying: Xxxxxx's Construction Representative: Xxx
Xxxxxxx, Xxxxxxxx's Construction Representative: Xxxx Xxxxxxxxx.
6.3A LANDLORD'S PAYMENT. Upon satisfaction of the following conditions, and
provided the Tenant is not then in default under this Lease beyond the
expiration of applicable notice and cure periods (but such amount shall
become due when Tenant cures any such default), Landlord shall pay to
Tenant an amount equal to $30.00 per square foot of rentable area of the
Premises (the "Tenant Allowance") as an inducement to Tenant to enter
into this Lease:
(a) one third of such amount shall be payable by Landlord to Tenant no
later than thirty (30) days after the date when the Tenant
Approved Plans shall have been approved by Landlord, provided that
at such date Tenant is not in default under this Lease beyond the
expiration of applicable cure and/or notice periods (but such
amount shall become due when Tenant cures any such default); (b)
an additional one-third of such amount shall be paid to Tenant
within thirty days after Tenant shall have completed one-third of
the Tenant's Work, shall have furnished to Landlord partial lien
waivers
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and releases from all contractors, materialmen and suppliers with
respect to such work, and a certificate of Xxxxxx's general
contractor that such work has been completed to such extent; and
(c) the remainder of such amount shall be paid to Tenant upon
satisfaction of the following conditions:
(i) Tenant shall have substantially completed all of Tenant's
Work, shall have paid for such work in full and shall have
delivered to Landlord lien waivers in recordable form from
all materialmen, contractors and suppliers (in excess of
$10,000) with respect to such work (with respect to any
contractor, materialman or supplier in respect of which
Xxxxxx has not delivered to Landlord a lien waiver where
such lien waiver is required, then Landlord shall withhold
from the Tenant Allowance an amount equal to the unpaid
balance of such work or materials to such materialman,
contractor or supplier until such lien waiver has been
received but shall pay the remainder of such Tenant
Allowance to Tenant), and
(ii) Tenant shall have delivered to Landlord reasonable evidence
of the cost of the work in the form of paid invoices,
receipts and the like, and
6.3B SUBSTANTIAL COMPLETION.
(a) Landlord's Work shall be treated as having been "substantially
completed" for purposes of this Lease on the latest of:
(i) The date on which the Landlord's Work in the Premises as
described in Landlord's Plans and Specifications has been
completed except for Punch List Items;
(ii) The Architect certifies to Tenant that Landlord's Work in
the Premises as described in Landlord's Plans and
Specifications has been substantially completed in
accordance with said plans;
(iii) the completion of any portion of the Landlord's Work outside
the Premises necessary to enable Tenant and its contractor
to commence the Tenant Work;
(iv) Building Systems, including, without limitation, the
heating, ventilation, air conditioning, plumbing,
mechanical, electrical, telephone, life safety and
telecommunications systems (to the extent to be provided by
Landlord according to the Landlord's Plans and
Specifications) are installed within the Building and
delivered to the Premises to the extent necessary to permit
the commencement, continuation and completion of the
Tenant's
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Work; and
(v) Landlord's Work outside the Premises shall be completed to
the extent necessary to deliver all utilities to the
Premises.
On or about the date that Xxxxxxxx's Work is substantially complete,
Xxxxxxxx's Construction Representative and Xxxxxx's Construction
Representative shall conduct a joint walk-through of the Premises and
shall prepare a mutually acceptable inventory of "punch list" items (the
"Punchlist Items"). With respect to Landlord's Work, Landlord shall
cause all Punchlist Items to be completed within 30 days after the
"delivery" thereof, except such Punchlist Items that cannot be completed
due to seasonal conditions or because completion of the Tenant Work is
necessary for the completion of such Landlord's Work, which in either
case Landlord shall complete as soon as such condition reasonably
permit, but in no event longer than 30 days, subject to delays due to
Landlord's Force Majeure.
Landlord and Tenant acknowledge that certain of Landlord's finish work
in the lobby and in the bathrooms and in the elevators will not be
performed by the date of such substantial completion but Landlord shall
perform such work no later than 120 days after the date of substantial
completion; provided, however, that if Tenant intends to occupy a
portion or portions of the Premises prior to the expiration of such
120-day period, Tenant may accelerate such period with respect to such
portions by notice given to Landlord at least thirty (30) days prior to
the end of such accelerated period.
To the extent that any of Landlord's Work to the Building has not been
completed and the lack of completion thereof delays Tenant in the
completion of the Tenant Work (including any unreasonable interference
with Xxxxxx's contractors' access to the Premises) or in obtaining a
certificate of occupancy then the 180 day period set forth above shall
be extended to the extent of such Landlord Delay. In any case, by the
end of such 180 day period and subject to Landlord's Force Majeure
Landlord shall complete the construction of the plaza area.
6.4 REPAIRS TO BE MADE BY LANDLORD. Landlord agrees to keep in good order,
condition and repair the Common Areas and common facilities of the
Building, including, but not limited to, all HVAC, electrical, plumbing,
security, life safety and other mechanical systems ("Building Systems")
and the driveways and other common areas of the Lot, and the structure,
foundations and roof of the Building, insofar as any of the foregoing
affects the Premises or access thereto or the use thereof, and shall
maintain the same in accordance with applicable laws, ordinances,
governmental rules and regulations, directions and orders of officers of
governmental agencies having jurisdiction except that where the same
results from the specific nature of Tenant's use or any alterations or
changes made by Tenant, Tenant shall reimburse Landlord for the cost
thereof upon demand. Landlord shall in no event be responsible to Tenant
for the condition of glass in
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the Premises or for the entry doors to the Premises, or with respect to
any condition in the Premises or the Building caused by any act or
neglect of Tenant or any contractor, agent, employee or invitee of
Tenant, or anyone claiming by, through or under Xxxxxx, Landlord shall
restore the same and Tenant shall reimburse Landlord for the cost
thereof upon demand. Landlord shall not be responsible to make any
improvements or repairs to the Building or the Premises other than as
expressed in this Section 6.4 unless otherwise expressly provided in
this Lease. Landlord shall use all commercially reasonable efforts to
minimize noise or vibration on the roof of the Building, and in
connection therewith Landlord's design of the HVAC units and other
equipment located on the roof shall be such that noise levels will not
exceed 44 dBA or XX XX 37 [equivalent NC 34 more or less] (the "Noise
Standard"). Landlord shall cause all equipment located on the roof by
other tenants to be designed to satisfy the Noise Standard, and Tenant
shall cause any of its equipment located on the roof to be designed to
satisfy the Noise Standard. If any equipment located on the roof by
Landlord or other tenants shall not satisfy the Noise Standard in
operation, then Landlord shall perform such work as shall be necessary
so that such equipment shall satisfy the Noise Standard in operation,
and if any equipment located on the roof by Tenant does not satisfy the
Noise Standard in operation then Tenant shall perform such work as shall
be necessary to cause such equipment to satisfy the Noise Standard in
operation.
Landlord shall never be liable for any failure to make repairs which,
under the provisions of this Section 6.4 or elsewhere in this Lease,
Landlord has undertaken to make unless: (a) Tenant has given notice to
Landlord of the need to make such repairs as a result of a condition in
the Building or in the Premises requiring any repair for which Landlord
is responsible except that to the extent that the Landlord or its agent
otherwise has actual knowledge of the need for such repair then such
notice shall not be required and Landlord shall be required to commence
to make such repairs within a reasonable time after Landlord has actual
knowledge thereof; and (b) Landlord has failed to commence to make such
repairs within five (5) business days after receipt of such notice or
actual knowledge if any repairs are, in fact, necessary.
6.5 TENANT'S AGREEMENT. Tenant agrees that throughout the Lease Term Tenant
will keep neat and clean and maintain in as good order, condition and
repair as exists at the Commencement Date, reasonable wear and tear only
excepted, the Premises and every part thereof, excepting only those
repairs for which Landlord is responsible under the terms of this Lease
or where the cause thereof is the result of Landlord's default under
this lease and damage by fire or other casualty or as a consequence of
the exercise of the power of eminent domain, and shall surrender the
Premises at the end of the Term, in such condition. Without limitation,
Tenant shall maintain and use the Premises in accordance with all
applicable laws, ordinances, governmental rules and regulations,
directions and orders of officers of governmental agencies having
jurisdiction; and in accordance with the reasonable requirements of
Landlord's
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and/or Xxxxxx's insurers; provided, however, that in connection with
such compliance with laws, etc. the Tenant shall not be required to make
any structural alterations or changes to the Building or the Premises
except where the same are required as a result of the specific nature of
the use being made by Tenant of the Premises or by reason of any
alterations or changes made by Tenant to the Premises. Tenant shall, at
Xxxxxx's own expense, obtain and maintain in effect all permits,
licenses and the like required by applicable law for Tenant's particular
use of the Premises or for any Alterations made by Tenant to the
Premises. Landlord has entered into a certain traffic agreement with the
Boston Redevelopment Authority and certain other agreements with the
Boston Redevelopment Authority and in connection therewith encourages
all employers at the Building to participate in the Corporate Pass
Program of the
Massachusetts Bay Transit Authority and the use of mass
transit by persons working in Boston and to inform their employees of
the benefit of using monthly transit passes and further encourages all
employers in the Building to employ Boston residents. If required by any
governmental authority, Landlord may request Tenant to report
periodically on the number of Boston residents employed by Tenant at the
Premises and the number of its employees who use mass transit passes
issued under the Corporate Pass Program, and Tenant will use reasonable
efforts to comply with such request. Tenant shall not permit or commit
any waste, and Tenant shall be responsible for the cost of repairs which
may be made necessary by reason of damage to any areas in the Building,
including the Premises, by Tenant, Xxxxxx's contractors or Tenant's
agents, employees or invitees, or anyone claiming by, through or under
Tenant.
If repairs are required to be made by Tenant pursuant to the terms
hereof, Landlord may demand that Tenant make the same forthwith, and if
Tenant refuses or neglects to commence such repairs and complete the
same within the applicable cure period after such demand, Landlord may
(but shall not be required to do so) make or cause such repairs to be
made. If Landlord makes or causes such repairs to be made, Xxxxxx agrees
that Tenant will forthwith, on demand, pay to Landlord the cost thereof,
and if Tenant shall default in such payment, Landlord shall have the
remedies provided for the nonpayment of rent or other charges payable
hereunder.
6.6 FLOOR LOAD - HEAVY MACHINERY. Tenant shall not place a load upon any
floor in the Premises exceeding the lesser of (a) the floor load per
square foot of area which such floor was designed to carry as certified
by Landlord's architect and (b) the floor load per square foot of area
which is allowed by law. Landlord reserves the right to prescribe the
weight and position of all business machines and mechanical equipment,
including scales, which shall be placed so as to distribute the weight.
Business machines and mechanical equipment shall be placed and
maintained by Tenant at Tenant's expense in settings sufficient, in
Landlord's reasonable judgment, to absorb and prevent vibration, noise
and annoyance. Tenant shall not move any safe, heavy machinery, heavy
equipment,
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freight, bulky matter or fixtures into or out of the Building without
Landlord's prior consent, which shall not be unreasonably withheld,
conditioned or delayed.
If such safe, machinery, equipment, freight, bulky matter or fixtures
requires special handling, Xxxxxx agrees to employ only persons holding
a Master Xxxxxx's License to do said work, and that all work in
connection therewith shall comply with applicable laws and regulations.
Any such moving shall be at the sole risk and hazard of Tenant and
Tenant will exonerate, indemnify and save Landlord harmless against and
from any liability, loss, injury, claim or suit resulting directly or
indirectly from such moving. Tenant shall schedule such moving at such
times as Landlord reasonably shall require for the convenience of the
normal operations of the Building.
ARTICLE VII
SERVICES TO BE FURNISHED BY LANDLORD
AND UTILITY CHARGES
7.1 LANDLORD'S SERVICES. At Landlord's sole cost and expense but subject to
reimbursement pursuant to the terms hereof, Landlord covenants during
the Lease Term during the hours of 8 a.m. to 6 p.m., Monday through
Friday, and 8 a.m. to 1 p.m. on Saturdays, holidays (New Year's Day,
President's Day, Memorial Day, July 4th, Labor Day, Thanksgiving and
Christmas) excepted ("Normal Building Operating Hours"):
(a) to provide heating and air conditioning in the Premises during the
normal heating and air conditioning seasons, and the Building
heating and air conditioning systems shall be designed to provide
heating and air conditioning in compliance with the specifications
attached as Exhibit F;
(b) at all times, to furnish hot and cold water for ordinary toilet,
lavatory and drinking purposes (Landlord is not required to
furnish water for kitchens or kitchenettes). If Tenant requires
water for any other purpose, including without limitation for a
kitchen, Tenant shall pay the Landlord a fair and equitable charge
therefor determined by Landlord to reimburse Landlord for the cost
of such water and related sewer use charge (including a charge to
reimburse Landlord for the cost of metering Tenant's usage);
(c) to furnish non-exclusive passenger elevator service and, where
provided, exclusive elevator service. Subject to the terms of
Section 2.2 of this Lease, access to the Premises through
elevators shall be provided on a 24-hour basis each day of the
year, but subject to such reasonable rules and regulations for
security as the Landlord may reasonably establish; and
(d) unless Tenant elects otherwise as provided below, to furnish
cleaning services for the Premises and Common Areas and elevator
reasonably consistent with such services set forth on Exhibit I
hereto.
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(e) to provide electricity to the Premises at least equal to eight
xxxxx per Rentable Square Foot, exclusive of HVAC; and
(f) provide for the clearance and removal of snow and ice from the
driveways and walkways on the Lot and the maintenance, in a good
and attractive condition, of all landscaping on the Lot.
The services to be provided by Landlord under this Section 7.1 shall be
at least consistent in quality with the quality of services in
facilities similar to the Building in the general vicinity of the
Building. In addition, Xxxxxxxx agrees to furnish, at Xxxxxx's expense,
HVAC at times other than Normal Business Operating Hours, upon Xxxxxx's
request and such additional special services as may be mutually agreed
upon by Landlord and Tenant, upon reasonable and equitable rates from
time to time established by Landlord, and Tenant shall pay therefor
promptly after receipt of billing at the time of Xxxxxx's next Fixed
Rent payment. Xxxxxxxx's initial charge for overtime HVAC is $50.00 per
hour.
Tenant may elect to provide janitorial services to the Premises by
notice to Landlord to such effect given no later than May 1, 2002.
If Xxxxxx has elected that it will provide its own janitorial service it
may at any time thereafter elect that Landlord shall provide such
service but such election cannot be made more than once in any two year
period and then at least six months prior to date upon which Landlord is
to begin furnishing such service. If, however, Xxxxxx has at any time
elected not to provide such service it may thereafter elect to provide
such service for itself provided that it gives Landlord at least twelve
months advance notice thereof and shall not make any such election more
often than once in any twenty-four month period. Landlord and Tenant
shall coordinate so that Tenant's provision of its own janitorial
service shall commence at a time when Xxxxxxxx's then current contract
for the provision of janitorial services to the Building is ending or up
for renewal. If at any time Tenant has elected to provide its own
janitorial service then there shall be a fair reduction in rent by the
cost which Landlord would have incurred in an arms-length commercially
reasonable context to provide such service less any extra cost which the
Landlord incurs in providing janitorial service to the rest of the
Building as a result of the deletion of Tenant's Premises from
Landlord's contract with its janitorial contractor, and during such
period of time, the Base Operating Expenses shall be reduced by the
amount which Landlord would have incurred in providing such janitorial
services to Tenant's Premises during the Base Year or in fact the amount
which Landlord actually incurred during such Base Year, as the case may
be.
7.2 PAYMENT OF UTILITY CHARGES. With respect to electricity for lighting and
equipment in the Premises, prior to the Commencement Date the same shall
be separately metered by Landlord, and Xxxxxx agrees to pay all bills
therefor
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promptly to the utility company furnishing the same and, if requested by
Xxxxxxxx, provide Landlord with evidence of such payment. If such
utility company shall have a lien on the Premises for nonpayment of such
charges and Tenant shall fail at any time to make payment of same,
without limitation of Landlord's rights on account of such failure,
Tenant shall thereafter, if requested by Landlord, pay to Landlord, when
monthly Fixed Rent is next due and thereafter on Landlord's demand, an
amount reasonably estimated by Landlord to be sufficient to discharge
any such lien. Such amount or such portion thereof as shall be
unexpended at the expiration of this Lease shall, upon full performance
of all Tenant's obligations hereunder, be repaid to Tenant without
interest.
ARTICLE VIII
REAL ESTATE TAXES AND OTHER EXPENSES
8.1 TENANT'S SHARE OF REAL ESTATE TAXES.
(a) For the purposes of this Section:
(i) The term "Tax Period" shall mean the period during which
Taxes (as hereinafter defined) are required to be paid under
applicable law. Thus, under the law presently in effect in
the Commonwealth of
Massachusetts, Tax Period means the
period from July 1 of a calendar year to June 30 of the
subsequent calendar year. Suitable adjustment in the
determination of Tenant' obligation under this Section 8.1
shall be made in the computation for any Tax Period which is
greater than or less than twelve (12) full calendar months.
(ii) The term "Taxes" shall mean all real estate taxes and
assessments (which term, for purposes of this provision,
shall include water and sewer use charges which are not
separately metered to Tenant or any other occupant of the
Building), special or otherwise, levied or assessed upon or
with respect to the Lot and Building or any part thereof and
all ad valorem taxes for any personal property of Landlord
used in connection therewith. As of the date of delivery of
the Premises to Tenant, the Lot shall be a single tax
parcel, separately assessed, including no taxable
improvements other than the Building (upon its completion)
and the Common Areas existing as of the Commencement Date.
Should the Commonwealth of
Massachusetts, or any political
subdivision thereof, or any other governmental authority
having jurisdiction over the Lot and Building, (1) impose a
tax, assessment, charge or fee, which Landlord shall be
required to pay, by way of substitution for or as a
supplement to such real estate taxes and ad valorem personal
property taxes, or (2) impose an income or franchise tax or
a tax on rents in substitution for or as a supplement to a
tax levied against the Lot and Building or any part thereof
and/or the personal
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property used in connection with the Lot or Building or any
part thereof, all such taxes, assessments, fees or charges
(hereinafter defined as "in lieu of taxes") shall be deemed
to constitute Taxes hereunder. Except as hereinabove
provided with regard to "in lieu of taxes", Taxes shall not
include any inheritance, estate, succession, transfer, gift,
franchise, net income or capital stock tax or any so-called
linkage payments. If any betterment assessment is made
against the Lot, and such assessment may be paid in
installments over a number of years, then there shall be
included in each Tax Period's taxes only the installment of
(or portions thereof) falling due within such Tax Period had
Landlord elected to pay the same over the longest period
permitted by law (together with any statutory interest
thereon) whether or not Landlord so elects. If Landlord
shall obtain any abatement or reduction in Taxes a portion
of which has already been paid by Tenant under this Section
8.1, then after Landlord deducts therefrom the reasonable
costs and expenses incurred by Landlord in obtaining such
abatement or reduction, Landlord shall pay to Tenant
Tenant's Share of such abatement or reduction but not in
excess of the amount of Taxes paid in respect thereof paid
by Tenant under this Section 8.1 for the Tax Period in
question.
(b) In the event that the Taxes imposed with respect to the Lot and
Building shall be greater during any Tax Period than the Base
Taxes:
(i) Tenant shall pay to Landlord, as additional rent, Xxxxxx's
Share of the amount by which the Taxes imposed with respect
to the Lot and Building for such Tax Period exceed the Base
Taxes, apportioned for any fraction of a Tax Period
contained within the Term, and
(ii) Landlord shall submit to Tenant a statement setting forth
the amount of such additional rent, and within thirty (30)
days after the delivery of such statement (whether or not
such statement shall be timely), Tenant shall pay to
Landlord the payment required under subparagraph (i) above.
So long as Taxes shall be payable in installments under
applicable law, Landlord may submit such statements to
Tenant in similar installments. The failure by Landlord to
send any statement required by this subparagraph shall not
be deemed to be a waiver of Landlord's right to receive such
additional rent except that in no event shall Tenant be
responsible for Taxes not billed to Tenant (other than in an
abatement situation) within two years after the date due to
the appropriate governmental authority. At Tenant's request,
Landlord shall submit to Tenant supporting back-up
documentation with respect
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to any statement which Xxxxxxxx has delivered to Tenant
for payment.
(c) Tenant's payments in respect of increases in Taxes shall be
adjusted on a per diem basis for and with respect to any portion
of the Term which does not include an entire Tax Period.
(d) If Tenant is obligated to pay any additional rent as aforesaid
with respect to any Tax Period or fraction thereof during the
Term, then Tenant shall pay, as additional rent, on the first day
of each month of the next ensuing Tax Period, estimated monthly
tax escalation payments in an amount from time to time reasonably
estimated by Landlord. Estimated monthly tax escalation payments
for each ensuing Tax Period shall be made retroactively to the
first day of the Tax Period in questions. Following the close of
each Tax Period and with respect to which Tenant is obligated to
pay any additional rent as aforesaid, Landlord shall submit the
statement set forth in paragraph (b)(ii) of this Section 8.1 and
in the event the total of the estimated monthly tax escalation
payments theretofore made by Tenant to Landlord for such Tax
Period does not equal Tenant's Share of the Taxes in excess of the
Base Taxes, Tenant shall pay any deficiency to Landlord as shown
by such statement within thirty (30) days after the delivery of
such statement (whether or not such statement shall be timely). If
the total of the estimated monthly tax escalation payments paid by
Tenant during such Tax Period exceed the actual amount of Tenant's
Share of the Taxes in excess of the Base Taxes, Landlord shall pay
the same to Tenant within thirty (30) days or, at Landlord's
Option credit the amount of such overpayment against subsequent
obligations of Tenant for rent under this lease (but Landlord
shall refund such overpayment if the Term has ended and Tenant has
no further obligations to Landlord under this lease).
(e) When the applicable tax bill is not available prior to the end of
the Term, then a tentative computation shall be made by Landlord
on the basis of the Taxes for the next prior Tax Period, with a
final adjustment to be made between landlord and Tenant promptly
after Landlord shall have received the applicable tax bill.
(f) Payments by Tenant to Landlord on account of Taxes shall not be
considered as being held in trust, in escrow or the like, by
Landlord,; it being the express intent of Landlord and Tenant that
Tenant shall in no event be entitled to receive interest upon, or
any payments on account of earnings or profits derived from, such
payments by Tenant to Landlord. Landlord shall have the same
rights and remedies for the non-payment by Tenant of any amounts
due on account of such Taxes as Landlord has hereunder for the
failure of Tenant to pay the Fixed Rent.
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8.2 TENANT'S SHARE OF OPERATING EXPENSES.
(a) For the purposes of this Section:
(i) The term "Operating Year" shall mean a calendar year in
which any part of the term of this Lease shall fall.
(ii) The term "Operating Expenses" shall mean all reasonable
expenses, costs and disbursements of every kind and nature,
paid or incurred by Landlord in operating, insuring, owning,
managing, repairing and maintaining the Lot and Building and
its appurtenances; including, but without limitation:
premiums for fire, casualty, liability and such other
insurance as Landlord may from time to time maintain;
security expenses; compensation and all fringe benefits,
workmen's compensation insurance premiums and payroll taxes
paid by Landlord to, for or with respect to all persons
engaged in operating, maintaining, managing or cleaning (to
the extent that any personnel provide services for more than
the Building such compensation and benefits shall be
prorated on an equitable basis); fuel costs; steam, water,
sewer, electric gas, telephone, and other utility charges
not otherwise billed to tenants by Landlord or the utility;
expenses incurred in connection with the central plant
furnishing heating, ventilating and air conditioning to the
Building; costs of lighting, ventilating, (including
maintaining and repairing ventilating fans and fan rooms);
costs of repairing and maintaining fire protection systems;
costs of building and cleaning supplies and equipment
(including rental); cost of maintenance, cleaning and
repairs; cost of snow plowing or removal, or both, and care
of interior and exterior landscaping; payments to
independent contractors under contracts for cleaning,
operating, management, maintenance and/or repair (which
payments may be to affiliates of Landlord); all other
expenses paid in connection with cleaning, operating,
management, maintenance and repair; costs of any capital
improvements completed after the Commencement Date which are
replacements of worn out or obsolescent items or are
mandated by law enacted after the date of this Lease, or
made in order to reduce other Operating Expenses to the
extent of such reduction, as such costs are reasonably
amortized by Landlord over the useful life thereof, with
interest on the unamortized amount at the rate of the
greater of (i) 12% per annum or (ii) 2% per annum above the
base rate of interest charged from time to time by Fleet
National Bank or any successor thereto (but in no event at a
rate which is more than the highest lawful rate allowable in
the Commonwealth of
Massachusetts), to the extent the cost
of the particular capital improvement exceeds the amount of
the unused reserve, if any, for the replacement thereof
-29-
previously included in Operating Expenses and insurance
proceeds, if any, received by Landlord on account of
damage to the particular capital improvement. Operating
Expenses shall not, however, include the following:
1. Costs of alterations of any tenant's premises for a
particular tenant;
2. Principal or interest payments on loans secured by
mortgages or trust deeds on the Building and/or lot;
3. Leasing expenses;
4. Salaries, benefits or other expenses for personnel above
the rank of property manager;
5. Services provided by Landlord to other tenants of the
Lot or Building and not to Tenant; and
6. Capital expenses, except as hereinbefore permitted.
7. Financing and refinancing costs in respect of any
mortgage or security interest placed upon the Building
or the Lot or any portion thereof, including payments of
principle, interest, finance or other charges and any
points and commissions in connection therewith;
8. Interest or penalties for any late or failed payments by
Landlord under any contract or agreement unless
resulting from Xxxxxx's failure to pay when and as due,
Xxxxxx's Share of Operating Expenses or Taxes;
9. Costs (including, without limitation, attorneys' fees
and disbursements) incurred in connection with any
judgment, settlement or arbitration award resulting from
any tort liabilities;
10. Rent or other charges payable under any ground or
underlying lease;
11. Costs of any item which are reimbursed to Landlord by
other tenants or third parties (directly and not through
a reimbursement scheme such as that contained in this
Section 8.2) but which are properly chargeable or
attributable to a particular tenant or particular
tenants;
-30-
12. Costs of electrical or other utility services furnished
directly to any premises of other tenants of the
Building where such utility is separately metered to the
Premises;
13. Costs incurred in connection with Xxxxxxxx's
preparation, negotiation, dispute, resolution and/or
enforcement of leases, including attorneys' fees and
disbursements in connection with any summary
proceedings, to dispossess any tenant or incurred in
connection with disputes with prospective tenants,
employees, consultants, management agents, leasing
agents, purchasers or mortgagees;
14. Costs (including increased Operating Expenses) of any
additions to or expansions of the Building or the Lot
(but in such case, the square footage of any additions
or expansions shall not be included in determining
Tenant's Share);
15. Costs of repairs, restorations or replacements
occasioned by fire or casualty or caused by the exercise
of the right of eminent domain whether or not the
condemnation award proceeds or insurance proceeds are
recovered or adequate for such purposes;
16. An amount equal to all amounts received by the Landlord
(x) through proceeds of insurance to the extent the
proceeds are compensation for expenses which (i)
previously were included in Operating Expenses
hereunder, (ii) are included in operating expenses for
the subsequent Operating Year in which the insurance
proceeds are received, or (iii) will be included as
Operating Expenses in a subsequent Operating Year or (y)
as rebates or credits;
17. Legal and other professional fees for matters not
relating to the normal administration and operation of
the Building or relating to matters which are excluded
from Operating Expenses for the Building;
18. The cost of environmental monitoring, compliance testing
and remediation performed in, on, about and around the
Building or the Lot;
19. Depreciation (amortization of certain capital items is
included as hereinbefore set forth);
-31-
20. Amounts paid to subsidiaries or affiliates of Landlord
for services rendered to the Building to the extent such
amounts exceed the competitive costs for delivery of
such services were they not provided by such related
parties;
21. Management fees to the extent in excess of competitive
rates;
22. Any costs incurred by Landlord in connection with those
portions of the Building being used by purposes other
than office space including for retail space except as
set forth in subsection (c) below;
23. Any other costs or expenses which, in accordance with
generally accepted accounting principles, consistently
applied, would not typically be treated as an Operating
Expense by landlords of comparable properties, but in
any event the amortization of certain capital items as
set forth above shall be included as an Operating
Expense;
24. Costs incurred by Xxxxxxxx to correct of defects in the
design and construction of the Building;
25. Expenses for services or other benefits which are
provided to another tenant or occupant of the Building
and are not the type that are offered to Tenant;
26. Increases in advertising and promotional costs including
tenant relation programs and events and any costs, fees,
dues, contributions or similar expenses for political,
charitable, industry association or similar
organizations in excess of $500 per year after the Base
Year (Base Year amount therefor shall be assumed to be
$3000 for the purposes hereof);
27. Any fines, costs, penalties or interest resulting from
the negligence, misconduct or omission of the Landlord
or its agents, contractors, or employees;
28. Acquisition costs for sculptures, paintings, or other
objects of art or the display of such items;
29. Costs incurred in connection with upgrading the Building
to comply with disability or life insurance
requirements, or life safety codes, ordinances,
statutes, or other laws in effect prior to the
Commencement Date, including, without
-32-
limitation, the Americans With Disabilities Act,
including penalties or damages incurred as a result of
non-compliance;
30. Costs for reserves of any kind except as provided above;
and
31. If the office portion of Wing Two not occupied by Tenant
shall hereafter be occupied by multi tenants and a
common lobby shall be provided for such tenants then the
costs and expenses of maintaining and operating such
common lobby shall be excluded from Operating Expenses.
(b) Within 120 days after the expiration of each Operating Year,
Landlord shall furnish Tenant with a detailed statement setting
forth the Operating Expenses for such Operating Year and Xxxxxx's
Share thereof. As Xxxxxx's special audit right, at Xxxxxx's
request made no later than sixty (60) days after the receipt of
such statement, Landlord shall furnish to Tenant reasonable backup
material evidencing the Operating Expenses for such Operating Year
set forth in such statement.
(c) In the event Operating Expenses during any Operating Year shall
exceed the Base Operating Expenses, Tenant shall pay to Landlord,
as additional rent, an amount equal to Tenant's Share of such
excess. For the purposes hereof Tenant Share of such excess shall
be calculated as follows: with respect to insurance costs,
Xxxxxx's Share shall be a fraction equal to Tenant's Tax Share and
with respect to all other Operating Expenses Tenant's Share shall
be equal to a fraction, the numerator of which is the Rentable
Area of the Premises and the denominator of which is the Rentable
Area of all office space within the Building, including the
Premises.
(d) Said additional rent shall, with respect to the Operating Years in
which the Commencement Date and end of the Term of this Lease
fall, be adjusted to that proportion thereof as the portion of the
Term of this Lease falling within such Operating Year bears to the
full Operating Year. If Landlord shall change its Operating Year,
appropriate adjustment shall be made for any Operating Year less
than twelve months which may result.
(e) Any additional rent payable by Tenant under this Section 8.2 shall
be paid within thirty (30) days after Landlord has furnished
Tenant with the Statement described above in paragraph (b) of this
Section 8.2.
(f) If with respect to any Operating Year or fraction thereof during
the Term, Tenant is obligated to pay any additional rent in
respect of increases in such Operating Expenses as aforesaid, then
Tenant shall pay, as additional
-33-
rent, on the first day of each month of the next ensuing
Operating Year, estimated monthly operating escalation payments
in an amount from time to time reasonably estimated by Landlord
to be sufficient to cover, in the aggregate, a sum equal to
Xxxxxx's Share of such increase in Operating Expenses for such
year. If the estimated monthly operating escalation payments
theretofore made for such Operating Year by Tenant are greater
than the amount due as additional rent in respect thereof
according to the statement furnished Tenant by Landlord pursuant
to paragraph (b) of this Section 8.2, Landlord shall pay the
same to Tenant within thirty (30) days, or, at Landlord's
election, credit the amount of such overpayment against
subsequent obligations of Tenant for additional rent under this
Lease (but Landlord shall refund such overpayment if the Term
has ended and Tenant has no further obligation to Landlord under
the Lease); but if such amount due as such additional rent for
said Operating Year is greater than the estimated monthly
operating escalation payments theretofore made on account of
such period, Tenant shall make suitable payment to Landlord
within the time set forth in paragraph (e) of this Section 8.2.
This provision shall survive the end of the Lease Term.
(g) If in the Base Year or any Operating Year the Building is not 95%
occupied (above the ground floor retail) during all or any portion
of such year or if in the Base Year or in any Operating Year the
Operating Expenses are artificially low due to incentives,
credits, warranties, rebates, offsets and other extraordinary and
one-time payments or the like ("Rebates"), the Operating Expenses
shall be increased equitably to reflect such Rebates or the
vacancies within the Building (above the retail ground floor) to
the extent that Operating Expenses would be greater had the
Building been at least 95% occupied (above the ground floor)
during such year.
(h) Anything in this Lease to the contrary notwithstanding, it is
expressly understood and agreed that the designation or use by
Landlord from time to time of portions of the Lot or Building as
common areas shall not restrict the Landlord's use of such areas
for improvements, structures and/or for retail, office or such
other purposes as the Landlord shall determine, the Landlord
hereby reserving the unrestricted right to build, and to, subtract
from, lease, license, relocate and/or otherwise use (temporarily
and/or permanently), any improvements, kiosks or other structures,
parking areas, sidewalks or other such common areas of facilities
anywhere upon or within the Lot or Building for office, retail, or
such other purposes as Landlord shall determine. Nothing herein
shall limit the right of the Landlord to change the use to which
any part of the Building will be used from the purposes specified
herein. Landlord shall not exercise its rights under this
Subsection (h) in a manner that will unreasonably interfere with
Xxxxxx's access to, or use of, the Premises, or
-34-
that would materially increase Tenant's obligations or decrease
Tenant's rights under this Lease.
(i) Within 90 days after receipt of each statement delivered under
this Section, Tenant or its agent (if a certified public
accountant) shall have the right to examine and copy Landlord's
records relating to the Operating Expenses and Taxes and the
calculation of Xxxxxx's Share thereof. Landlord shall make all its
records relating to the calculation of Operating Expenses
available to Tenant or its agents, at reasonable times upon
reasonable advance notice at Landlord's Present Mailing Address or
such other location as Landlord shall specify. No such audit and
examination may be made by any person or entity employed in whole
or in part on a so-called contingency basis. Tenant shall maintain
the confidentiality of all information which it receives as a
result of such examination and shall not disclose the same except
in connection with litigation between Landlord and Tenant. If
Tenant fails to notify Landlord within such 90-day period that it
determines to examine such statement, such statement shall be
deemed an account between Landlord and Tenant. In the event Tenant
has been overcharged for Operating Expenses and/or Taxes and such
overcharge is five percent (5%) or more of the amount actually due
from Tenant with respect to Operating Expenses or Taxes, as the
case may be, Landlord shall also pay all reasonable costs incurred
by Tenant in conducting such audit. Tenant may pay any charge in
respect of Operating Expenses or Taxes under protest and if it
shall be determined that Tenant has overpaid then Landlord shall
promptly refund Tenant the amounts for which Xxxxxx has overpaid.
ARTICLE IX
INDEMNITY AND PUBLIC LIABILITY INSURANCE
9.1 TENANT'S INDEMNITY. To the maximum extent this agreement may be made
effective according to law, Xxxxxx agrees to indemnify and save harmless
Landlord from and against all claims of whatever nature arising from any
willful misconduct or negligence of Tenant, or Xxxxxx's contractors,
licensees, invitees, agents, servants or employees, or arising from any
accident, injury or damage whatsoever caused to any person, or to the
property of any person, occurring after the commencement of construction
work by Tenant where Xxxxxx has exclusive possession of the Premises,
and until the end of the Lease Term and thereafter, so long as Tenant is
in occupancy of any part of the Premises, within the Premises, or
arising from any accident, injury or damage occurring outside of the
Premises, where such accident, damage or injury results from a negligent
act or omission or the willful misconduct on the part of Tenant or
Tenant's agents, employees, contractors, or invitees. To the maximum
extent this agreement may be made effective according to law, Xxxxxxxx
agrees to indemnify and save harmless Tenant from and against all claims
of whatever nature arising from any act,
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omission or negligence of Landlord or Landlord's contractors, agents,
servants or employees and occurring in the Building or the Lot.
The foregoing indemnity and hold harmless agreements shall include
indemnity against all costs, expenses and liabilities incurred in or in
connection with any such claim or proceeding brought thereon, and the
defense thereof.
9.2 PUBLIC LIABILITY INSURANCE. Xxxxxx agrees to maintain in full force and
effect from the date on which Xxxxxx first enters the Premises for any
reason, throughout the Lease Term, and thereafter so long as Tenant is
in occupancy of any part of the Premises, a policy of Commercial General
Liability insurance on an occurrence basis in accordance with the
broadest form of such coverage as is available from time to time in the
jurisdiction in which the Premises are located. The minimum limits of
liability of such insurance shall be $3,000,000 combined single limit or
shall be for such higher limits, if directed by Landlord, as are
customarily carried in that area in which the Building is located upon
buildings such as the Building, but Landlord shall not require higher
limits during the first five years of the term of this Lease.
The policy shall also include, but shall not be limited to the following
extensions of coverage:
1. Contractual Liability, covering Tenant's liability assumed under
this Lease; and
2. Personal Injury Liability in the amount of $3 million annual
aggregate, expressly deleting the exclusion relating to
contractual assumptions of liability.
Tenant's insurance under this Section 9.2 may be provided by a primary
policy and a so-called umbrella policy.
Xxxxxx further agrees to maintain a Workers' Compensation and Employer's
Liability Insurance policy. The limit of liability as respects
Employers' Liability coverage shall be no less than $5,000,000 per
accident.
Except for Workers' Compensation and Employers' Liability coverage,
Xxxxxx agrees that Landlord (and such other persons as are in privity of
estate with Landlord as may be set out in notice from time to time) are
named as additional insureds on a primary basis. Further, all policies
shall be noncancellable and nonamendable with respect to Landlord and
Xxxxxxxx's said designees without 30 days' prior written notice to
landlord. A duplicate original or a Certificate of Insurance evidencing
the above agreements shall be delivered to Landlord prior to entry on
the Premises.
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9.3 TENANT'S RISK. To the maximum extent this agreement may be made
effective according to law, Xxxxxx agrees to use and occupy the Premises
and to use such other portions of the Building as Tenant is herein given
the right to use at Tenant's own risk; and Landlord shall have no
responsibility or liability for any loss of or damage to fixtures or
other personal property of Tenant for any reason whatsoever. The
provisions of this Section shall be applicable from and after the
execution of this Lease and until the end of the Lease Term, and during
such further period as Tenant may use or be in occupancy of any part of
the Premises or of the Building. Nothing in this Section 9.3 shall act
to exculpate the Landlord from its negligence or willful misconduct or
the negligence or willful misconduct of its servants, agents or
employees.
9.4 INJURY CAUSED BY THIRD PARTIES. To the maximum extent this agreement may
be made effective according to law, Xxxxxx agrees that Landlord shall
not be responsible or liable to Tenant, or to those claiming by, through
or under Tenant, for any loss or damage that may be occasioned by or
through the acts or omissions of persons occupying adjoining premises or
any part of the premises adjacent to or connecting with the Premises or
any part of the Building, or otherwise or for any loss or damage
resulting to Tenant or those claiming by, through or under Tenant, or
its or their property, from the breaking, bursting, stopping or leaking
of electric cables and wires, water, gas, sewer or steam pipes, and from
roof leaks and the like. Nothing in this Section 9.4 shall act to
exculpate the Landlord from its negligence or willful misconduct or the
negligence or willful misconduct of its servants, agents or employees.
9.5 The foregoing provisions of this Article IX (as well as any other
provisions dealing with indemnity and like by Tenant of Landlord) shall
be deemed to be modified in each case by the insertion in the
appropriate place of the language "except as otherwise provided in Mass.
GL. Ter. ED., c. 186, Section 15".
9.6 During the Lease Term, Landlord shall secure and carry (a) a policy of
commercial general liability insurance covering Landlord on an
occurrence basis in an amount not less than $5 million for claims based
on bodily injury (including death), personal injury and property damage
relating to the Building and the Lot; and (b) a policy of property
insurance covering the Building and the other improvements on the Lot,
not including the Tenant Work, for direct risk of physical loss, in an
amount equal to the full replacement cost of the Building or other
improvements on the Lot above footings and foundations. In the event
either party fails to maintain and enforce the policies of insurance
required hereunder, the party failing to maintain such policies shall be
deemed to have received the maximum insurance proceeds which would have
been payable under such policies had they been maintained for the
purposes required.
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ARTICLE X
LANDLORD'S ACCESS TO PREMISES
10.1 LANDLORD'S RIGHT OF ACCESS. Upon reasonable advance notice to Tenant
(which notice need not be given in the case of an emergency), Landlord
shall have the right to enter the Premises at all reasonable business
hours and after normal business hours for the purpose of inspecting or
making repairs to the same, and upon reasonable advance notice to
Tenant, Landlord shall also have the right to make access available at
all reasonable hours to prospective or existing mortgagees or purchasers
of any part of the Building. Any such right of entry shall be exercised
in a manner so as to minimize interference with Xxxxxx's use and
occupancy of the Premises.
10.2 EXHIBITION OF SPACE TO PROSPECTIVE TENANTS. Upon reasonable advance
notice to Tenant for a period of twelve (12) months prior to the
expiration of the Lease Term (as the same has been extended), Landlord
may have reasonable access to the Premises at all reasonable business
hours for the purpose of exhibiting the same to prospective tenants, and
may post suitable notice on the Building advertising the same for rent.
Any such right of entry shall be exercised in a manner so as to minimize
interference with Xxxxxx's use and occupancy of the Premises. Landlord
shall not be permitted to post notices for re-letting on Wing One unless
Tenant is vacating the Premises except that Landlord may post notices
for re-letting on retail portions of Wing One pertaining to such retail
portions at ground level.
ARTICLE XI
FIRE, EMINENT DOMAIN, ETC.
11.1 DAMAGE. In case during the term hereof the Premises shall be partially
damaged (as distinguished from "substantially damaged", as that term is
hereinafter defined) by fire or other casualty, the Landlord shall
forthwith proceed to repair such damage and restore the Premises to the
extent required of Landlord hereunder, to substantially their condition
at the time of such damage, but the Landlord shall not be responsible
for any delay which may result from Landlord's Force Majeure. In no
event shall any of Landlord's restoration obligations under this Article
XI pertain to any of Tenant's property or any alterations, changes or
additions made by Tenant or any fixtures or improvements or equipment
installed by Tenant.
11.2 SUBSTANTIAL DAMAGE. In case during the term hereof the Premises or the
Garage or access thereto shall be substantially damaged or destroyed by
fire or other casualty, the risk of which is covered by the Landlord's
insurance, this Lease shall, except as hereinafter provided, remain in
full force and effect, and the Landlord shall promptly after such damage
and the determination of the net amount of insurance proceeds available
to the Landlord, expend so much as may be necessary of such net amount
to restore the Premises to the extent required of
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Landlord hereunder, at its cost (and not at Tenant's expense)
(consistent, however, with zoning laws and building codes then in
existence), to substantially the condition in which Premises, the Garage
and access thereto were in at the time of such damage, except as herein
provided, but the Landlord shall not be responsible for delay which may
result from any cause beyond the reasonable control of the Landlord.
Should the net amount of insurance proceeds available to the Landlord be
insufficient to cover the cost of restoring the Premises, in the
reasonable estimate of the Landlord, the Landlord may, but shall have no
obligation to, supply the amount of such insufficiency and restore the
Premises with all reasonable diligence or the Landlord may terminate
this Lease by giving notice to the Tenant not later than one hundred
twenty (120) days after the Landlord has determined the estimated net
amount of insurance proceeds available to Landlord and the estimated
cost of such restoration. In case of substantial damage or destruction,
as a result of a risk which is not covered by the Landlord's insurance,
the Landlord shall likewise be obligated to rebuild the Premises, all as
aforesaid, unless the Landlord, within ninety (90) day after the
occurrence of such event, gives written notice to the Tenant of the
Landlord's election to terminate this Lease. For the purposes hereof,
any deductible or other self-insurance by the Landlord shall be
considered a part of the net insurance proceeds available for
restoration.
However, if the Premises, such access and the Garage shall be
substantially damaged or destroyed by fire, windstorm, or otherwise
within the last year of the Term of this Lease, as the same has been
extended, either party shall have the right to terminate this Lease,
provided that notice thereof is given to the other party not later than
sixty (60) days after such damage or destruction; provided, however,
that if Landlord has so exercised such option and if Tenant then has a
right under this Lease to extend the term of this Lease then Tenant may
render Landlord's exercise of such right of termination nugatory and of
no force or effect provided that Tenant gives Landlord notice exercising
such right of extension within ten (10) business days after its receipt
of Landlord's notice of termination; and further provided that if only
portions of the Premises have been damaged (on a floor by floor basis)
and the access to such portions of the Premises have not been damaged
Tenant shall have the right to occupy the portions of the Premises not
so damaged for the remainder of what would have been the term of this
Lease upon all the terms and conditions hereof but such occupancy must
be on a floor by floor basis for any floor not so damaged. If said right
of termination is exercised, this Lease and the term hereof shall cease
and come to an end as of the date of said damage or destruction.
Further, if the Premises, such access and the Garage shall be
substantially damaged or destroyed by fire or casualty and the Landlord
shall fail to commence the restoration thereof within sixty (60) days
after the date of such damage or destruction (such 60 day period to be
extended to the extent necessary for the Landlord to obtain insurance
proceeds and building permits to effect such restoration and to the
extent of any Landlord's Force Majeure), then Tenant may elect to
terminate this Lease by notice to Landlord given before the Landlord has
commenced such work and the termination shall
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take effect unless Landlord commences such work within thirty (30) days
after such notice; and if after having commenced such restoration work,
the Landlord shall fail to substantially complete such work within 270
days after its commencement, such 270-day period to be extended for up
to ninety (90) days to the extent of delays due to Landlord's Force
Majeure, then Tenant may elect to terminate this Lease by notice to
Landlord given before Landlord shall have so completed such work and
such termination shall take effect unless Landlord so completes such
work within thirty (30) days after such notice.
Unless this Lease is terminated as provided in this Section 11.2, or in
Section 11.4, if the Premises shall be damaged or destroyed by fire or
other casualty, then the Tenant shall (i) repair and restore all
portions of the Premises not required to be restored by Landlord
pursuant to this Article XI to substantially the condition which such
portions of the Premises were in at the time of such casualty, (ii)
equip the Premises with trade fixtures and all personal property
necessary or proper for the operation of the Tenant's business, and
(iii) open for business in the Premises - as soon thereafter as
possible.
11.3 RENT ABATEMENT. In the event that the provisions of Section 11.1 or
Section 11.2 of this Article XI shall be become applicable, the Fixed
Rent and all other charges shall be abated or reduced proportionately
during any period in which, by reason of such damage or destruction,
there is substantial interference with the operation of the business of
the Tenant in or access to the Premises or use of the Garage, having
regard to the extent to which the Tenant in the exercise in good faith
and prudent business judgment may be required to discontinue its
business in the Premises, and such abatement or reduction shall continue
for the period commencing with such destruction or damage and ending on
the earlier to occur of (i) 120 days after the substantial completion by
the Landlord of such work of repair and/or reconstruction as the
Landlord is obligated to do or (ii) the Tenant having recommenced full
operations in the Premises. In the event of termination of this Lease
pursuant to this Article XI, this lease and the term hereof shall cease
and come to an end as of the date of such damage or destruction.
11.4 DAMAGE TO BUILDING. If, however, the Building shall be substantially
damaged or destroyed by fire or casualty and there shall be no
substantial damage to the Premises or the Garage (and/or any spaces in
the Garage) or access thereto, the Landlord shall promptly restore or
cause to be restored (consistent, however, with zoning laws and building
codes then in existence), the Building to substantially the condition
thereof at the time of such damage, unless the Landlord, within a
reasonable time after such loss, gives notice to the Tenant of the
Landlord's election to terminate this Lease. If Landlord shall give such
notice, then anything to this Article XI to the contrary notwithstanding
this Lease shall terminate as of the date of such notice with the same
force and effect as if such date were the date originally established as
the expiration date hereof.
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11.5 DEFINITIONS OF SUBSTANTIAL DAMAGE. The terms "substantially damaged" and
"substantial damage", as said in this Article, shall have reference to
damage of such a character as cannot reasonably be expected to be
repaired or the Premises restored within sixty (60) days from the time
that such repair or restoration work would be commenced.
11.6 TAKING. If the Premises are taken by condemnation or right of eminent
domain then this Lease shall terminate as of the date that Tenant has
been deprived of possession. If, however, less than all the Premises has
been taken by eminent domain but there has been taken such portion
thereof as to render the balance (when reconstructed) unsuitable for the
purposes of the Tenant shall be taken by condemnation or right of
eminent domain, or if access to the Premises is materially, adversely
and permanently affected by such a taking or if more than ten (10)
parking spaces allocated to Tenant's use are taken by such condemnation
or right of eminent domain and Landlord promptly does not provide
alternative spaces to Tenant reasonably acceptable to Tenant, Tenant,
upon written notice to the Landlord, shall be entitled to terminate this
lease, provided that such notice is given not later than thirty (30)
days after the Tenant has been deprived of possession. For the purposes
of this Article, any deed or other transfer of title in lieu of any such
taking shall be treated as such a taking. Moreover, for the purposes of
this Article, such a taking of the Tenant's entire leasehold interest
hereunder in the Premises (or assignment or termination in lieu thereof)
shall be treated as a taking of the entire Premises, and in such event
the Tenant shall be treated as having been deprived of possession on the
effective date thereof. Should any part of the Premises be so taken or
condemned, and should this Lease not be terminated in accordance with
the foregoing provision, the Landlord covenants and agrees within a
reasonable time after such taking or condemnation, and the determination
of the Landlord's award therein, to expend so much as may be necessary
of the net amount which may be awarded to the Landlord in such
condemnation proceedings, in restoring the Premises to an architectural
unit as nearly like their condition prior to such taking as shall be
practicable. Should the net amount so awarded to the Landlord be
insufficient to cover the cost of restoring the Premises, as estimated
by the Landlord's architect, the Landlord may, but shall not be
obligated to, supply the amount of such insufficiency and restore the
Premises as above provided, with all reasonable diligence, or terminate
this Lease. Where the Tenant has not already exercised any right of
termination accorded to it under the foregoing portion of this
paragraph, the Landlord shall notify the Tenant of the Landlord's
election not later than ninety (90) days after the final determination
of the amount of the award.
11.7 RENT ABATEMENT. In the event of any such taking of the Premises, the
Fixed Rent and other charges or a fair and just proportion thereof,
according to the nature and extent of the damage sustained, shall be
suspended or abated until there has been restoration as aforesaid. If
there is a permanent taking of a portion of the Premises and this Lease
is not terminated, then there shall be a permanent abatement of the
fixed rent and other charges on a fair and equitable basis.
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11.8 AWARD. Landlord shall have and hereby reserves and accepts, and Tenant
hereby grants and assigns to Landlord, all rights to recover for damages
to the Building and the Lot and any part thereof, and the leasehold
interest hereby created, and to compensation accrued or hereafter to
accrue by reason of such taking, damage or destruction, as aforesaid,
and by way of confirming the foregoing, Tenant hereby grants and
assigns, and covenants with Landlord to grant and assign to Landlord all
rights to such damages or compensation. Nothing contained herein shall
be construed to prevent Tenant from prosecuting in any condemnation
proceedings a claim for the value of any Tenant's usual trade fixtures
and other improvements installed in the Premises by Tenant at Tenant'
expense and for relocation expenses, provided that such action shall not
affect the amount of compensation otherwise recoverable by Landlord from
the taking authority.
ARTICLE XII
LANDLORD'S REMEDIES
12.1 EVENTS OF DEFAULT. Any one of the following shall be deemed to an "Event
of Default":
A. Failure on the part of Tenant to pay Fixed Rent, additional rent
or other charges for which provision is made herein on or before
the date on which the same become due and payable and such failure
continues for ten (10) days after Landlord delivers to Tenant
notice of such default.
However, if (i) Landlord shall have sent to Tenant three (3)
notices of default in the payment of Fixed Rent in any calendar
year, even though the same shall have been cured and this Lease
not terminated; and (ii) during the calendar year in which said
notices of default have been sent by Landlord to Tenant, Tenant
thereafter shall default in the payment of Fixed Rent - the same
shall be deemed to be an Event of Default upon Landlord giving
Tenant written notice thereof, without the ten (10) day grace
period set forth above.
B. With respect to a non-monetary default under this Lease, failure
of Tenant to cure the same within thirty (30) days following
delivery of notice from Landlord to Tenant of such default or such
longer period of time as is reasonably required to cure such
default provided that Tenant commences to cure such default with
due diligence and pursues the cure thereof with all due diligence.
Notwithstanding the thirty (30) day cure period provided in the
preceding sentence, Tenant shall be obligated to commence
forthwith and to complete as soon as possible the curing of such
default; and if Tenant fails so to do, the same shall be deemed to
be an Event of Default.
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However, if (i) Landlord shall have sent to Tenant three notices
of the same non-monetary default, in any calendar year, even
though the same shall have been cured and this Lease not
terminated; and (ii) during the calendar year in which said
notices of default have been sent by Landlord to Tenant, Tenant
thereafter shall default in the same or any similar non-monetary
matter - the same shall be deemed to be an Event of Default upon
Landlord giving the Tenant written notice thereof, and Tenant
shall have no grace period within which to cure the same.
C. The commencement of any of the following proceedings, with such
proceeding not being dismissed within sixty (60) days after it has
begun: (i) the estate hereby created being taken on execution or
by other process of law; (ii) Tenant being judicially declared
bankrupt or insolvent according to law; (iii) an assignment being
made of the property of Tenant for the benefit of creditors; (iv)
a received, guardian, conservator, trustee in involuntary
bankruptcy or other similar officer being appointed to take charge
of all or any substantial part of Tenant's property by a court of
competent jurisdiction, or (v) a petition being filed for the
reorganization of Tenant under any provisions of the Bankruptcy
Code now or hereafter enacted.
X. Xxxxxx filing a petition for reorganization or for rearrangements
under any provisions of the Bankruptcy Code now or hereafter
enacted, and providing a plan for a debtor to settle, satisfy or
to extend the time for the payment of debts.
E. Execution by Tenant of an instrument purporting to assign Xxxxxx's
interest under this Lease or sublet the whole or a portion of the
Premises to a third party without Tenant having first obtained
Landlord's prior express consent to said assignment or subletting
where such consent is required hereunder.
F. The Tenant abandoning the Premises. For the purposes hereof
abandonment of the Premises is not merely a vacating of the
Premises but is abandonment as that term is legally defined and
Xxxxxx's failure to perform its obligations hereunder.
12.2 REMEDIES. Should any Event of Default occur then, notwithstanding any
license of any former breach of covenant or waiver of the benefit hereof
or consent in a former instance, Landlord lawfully may, in addition to
any remedies otherwise available to Landlord, immediately or at any time
thereafter, and without demand or notice (but in accordance with
applicable laws), enter into and upon the Premises or any part thereof
in the name of the whole and repossess the same as of Landlord's former
estate, and expel Tenant and those claiming by, through or under it and
remove its or their effects (without breach of the peace) without being
deemed guilty of any manner of trespass, and without prejudice to
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any remedies which might otherwise be used for arrears of rent or
preceding breach of covenant and/or Landlord may send notice to Tenant
terminating the Term of this Lease; and upon the first to occur of: (i)
entry as aforesaid; or (ii) the fifth (5th) day following the mailing of
such notice of termination, the Term of this Lease shall terminate, but
Tenant shall remain liable for all damages as provided for herein.
Tenant covenants and agrees, notwithstanding any termination of this
Lease as aforesaid or any entry or re-entry by Landlord, whether by
summary proceedings, termination, or otherwise, to pay and be liable for
on the days originally fixed herein for the payment thereof, amounts
equal to the several installments of Fixed Rent and other charges
reserved as they would become due under the terms of this Lease if this
Lease had not been terminated or if Landlord had not entered or
re-entered, as aforesaid, and whether the Premises be relet or remain
vacant, in whole or in part, or for a period less than the remainder of
the Term, or for the whole thereof, but in the event the Premises be
relet by Landlord, Tenant shall be entitled to a credit in the net
amount of rent received by Landlord in reletting, after deduction of all
reasonable expenses incurred in reletting the Premises (including,
without limitation, repairs, costs, brokerage fees, and the like but not
remodeling costs), and in collecting the rent in connection therewith.
It is specifically understood and agreed that Landlord shall be entitled
to take into account in connection with any reletting of the Premises
all relevant factors which would be taken into account by a
sophisticated developer in securing a replacement tenant for the
Premises, such as, but not limited to, the first class quality of the
Building and the financial responsibility of any such replacement
tenant; and Tenant hereby waives, to the extend permitted by applicable
law, any obligation Landlord may have to mitigate Tenant's damages;
provided, however, that in the event of the termination of this Lease as
a result of the default of Tenant, Landlord shall use reasonable efforts
to re-let the Premises, but in using such reasonable efforts, Landlord
may take into account the factors set forth above and shall not be
obligated to give priority to the re-letting of the Premises over other
areas of the Building. As an alternative, at the election of Landlord,
Tenant will upon such termination pay to Landlord, as damages, such a
sum as at the time of such termination represents the present value
(calculated using 2% in excess of the so-called Federal Funds Rate) of
the amount of the excess, if any, of the total rent and other benefits
which would have accrued to Landlord under this Lease for the remainder
of the Lease Term if the lease terms had been fully complied with by
Tenant over and above the then fair market rental value of the Premises
for the balance of the Term. For purposes of this Article, if Landlord
elects to require Tenant to pay damages in accordance with immediately
preceding sentence, the total rent shall be computed by assuming that
Tenant's payments in respect of increases in Taxes and Operating
Expenses would be, for the balance of the unexpired term, the amount
thereof (if any), respectively, for the immediately preceding Tax Period
or Operating Year, as the case may be, payable by Tenant to Landlord.
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In the event of any breach by Tenant of any of the agreements, terms,
covenants or conditions contained in this lease, Landlord shall be
entitled to enjoin such breach and shall have the right to invoke any
right or remedy allowed at law or in equity or by statute or otherwise
as though reentry, summary proceedings, and other remedies were not
provided for in this Lease.
Each right and remedy of Landlord and Tenant provided for in this Lease
shall be cumulative and shall be in addition to every other right or
remedy provided for in this Lease not now or hereafter existing at law
or in equity or by statute or otherwise, and the exercise or beginning
of the exercise by Landlord or Tenant of any one or more of the rights
or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by Landlord or Tenant of any or all other
rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise.
If any payment of rent or any other payment payable hereunder by Tenant
to Landlord or Landlord to Tenant shall not be paid within five (5) days
after the date when due, the same shall bear interest from the date when
the same was payable until the date paid at the lesser of (a) twelve
percent (12%) per annum, compounded monthly, or (b) the highest lawful
rate of interest which may be charged without violating any applicable
law; provided, however, that the first time in each calendar year that
Landlord shall determine to charge such interest, it shall give notice
thereof to Tenant and such interest shall be deemed waived if Tenant
makes payment of the same within ten (10) days after delivery of such
notice. Such interest payable by Tenant shall constitute additional rent
payable hereunder and be payable upon demand therefor by Xxxxxxxx.
In the event of any litigation between Landlord and Xxxxxx relating to
this Lease, the prevailing party in such litigation by final court
order, decree or judgment shall be entitled to be reimbursed by the
other party for the reasonable and actual legal costs and expenses
incurred by it in such litigation.
12.3 LANDLORD'S DEFAULT. Landlord shall in no event be in default in the
performance of any of Landlord's obligations hereunder unless and until
Landlord shall have failed to perform such obligations within thirty
(30) days, or such additional time as is reasonably required to correct
any such default, after notice by Tenant to Landlord properly specifying
wherein Landlord has failed to perform any such obligations; provided,
however, that in the event that any default of Landlord in the
performance of its obligations shall pose the immediate threat of injury
to person or damage to property, then Landlord shall use all reasonable
efforts to commence to cure such default as soon as reasonably possible
after it has received notice thereof from Tenant. In the event of a
default by Landlord after the expiration of such notice and cure period
which is of an emergency nature and which pertains to the maintenance of
the Premises the Tenant shall be entitled to perform such maintenance on
behalf of Landlord upon
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notice by Tenant to Landlord thereof, and if Tenant shall perform such
maintenance on behalf of Landlord then Landlord shall promptly reimburse
Tenant for the reasonable and actual costs thereof, but Tenant shall
have no right to set-off any amounts so owed from Fixed Rent or other
charges or rents due hereunder.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will not do
or permit anything to be done in or upon the Premises, or bring in
anything or keep anything therein which shall increase the rate of
insurance on the Premises or on the Building or any part thereof above
the standard rate applicable to premises being occupied for the use to
which Tenant has agreed to devote the Premises; and Xxxxxx further
agrees that in the event that Tenant shall do any of the foregoing,
Tenant will promptly pay to Landlord, on demand, any such increase
resulting therefrom which shall be due and payable as additional rent
hereunder. Landlord will hold harmless, defend and indemnify Tenant and
its successors and assigns against all claims, liabilities, loss, cost,
and expenses, including reasonable attorneys' fees, incurred as a result
of (i) any Hazardous Materials existing in, on or under the Premises,
the Building or the Lot as of the date of this Lease, and (ii) the
release, storage or disposal of Hazardous Materials in, on or under the
Premises, the Building or the Lot by Landlord, its agents, employees or
contractors, and the provision of this sentence shall survive the
expiration or earlier termination of this Lease. The term "Hazardous
Materials" shall mean any explosive, radioactive, hazardous wastes or
hazardous substances or substances defined as "hazardous substances" in
any federal, state or local laws, ordinance, regulation or governmental
requirement including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Sections 9601, et seq., Emergency Planning and Community Right-to-Know
Act, 42 U.S.C. Sections 11001, et seq.,
Massachusetts Oil and Hazardous
Material Release Prevention and Response Act, M.G.L. Chapter 21E, and
Massachusetts Hazardous Waste Management Act, M.G.L. Chapter 21C.
Landlord represents and warrants that, except as disclosed in the
Release Abatement Measure (RAM) Plan dated March 2001 by Xxxxx &
Xxxxxxx, Inc., it has no knowledge of the presence of any Hazardous
Materials on the Premises, the Building or the Lot. Tenant will hold
harmless, defend and indemnify Landlord and its successors and assigns
against all claims, liabilities, loss, costs and expenses, including
reasonable attorneys' fees, incurred as a result of the release, storage
or disposal of Hazardous Materials in, on or under the Building or the
Lot by Tenant, its agents, employees or contractors and the provisions
of this sentence shall survive the expiration or earlier termination of
this Lease.
13.2 WAIVER. Failure on the part of Landlord or Tenant to complain of any
action or nonaction on the part of the other, no matter how long the
same may continue,
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shall never be a waiver by Tenant or Landlord, respectively, of any of
the other's rights hereunder. Further, no waiver at any time of any of
the provisions hereof by Landlord or Tenant shall be construed as a
waiver of any of the other provisions hereof, and a waiver at any time
of any of the provisions hereof shall not be construed as a waiver at
any subsequent time of the same provisions. The consent or approval of
landlord or Tenant to or of any action by the other requiring such
consent or approval shall not be construed to waive or render
unnecessary Landlord's or Tenant's consent or approval to or of any
subsequent similar act by the other. Any consent required of the
Landlord in any provision of this Lease may be withheld by the Landlord
in its sole discretion acting in good faith unless the provision
requiring such consent specifically states that the Landlord shall not
withhold such consent unreasonably.
No payment by Tenant or acceptance by Landlord of a lesser amount than
shall be due from Tenant to Landlord shall be treated otherwise than as
a payment on account. The acceptance by Landlord of a check for a lesser
amount with an endorsement or statement thereon, or upon any letter
accompanying such check that such lesser amount is payment in full,
shall be given no effect, and Landlord may accept such check without
prejudice to any other rights or remedies which Landlord may have
against Tenant. In no event shall Tenant ever be entitled to receive
interest upon, or any payments on account of earnings or profits derived
from any payments hereunder by Tenant to Landlord.
13.3 COVENANT OF QUITE ENJOYMENT. Tenant, subject to the terms and provisions
of this Lease, upon payment of the Fixed Rent and other charges due
hereunder and the observing, keeping and performing of all of the terms
and provisions of this Lease on Tenant's part to be observed, kept and
performed, shall lawfully, peaceable and quietly have, hold, occupy and
enjoy the Premises during the Term hereof, without hindrance or ejection
by any persons lawfully claiming under Landlord to have title to the
Premises superior to Tenant; the foregoing covenant of quiet enjoyment
is in lieu of any other covenant, expressed or implied; and it
understood and agreed that this covenant and any and all other covenants
of Landlord contained in this Lease shall be binding upon Landlord and
Xxxxxxxx's successors only with respect to breaches occurring during
Landlord's and Xxxxxxxx's successors' respective ownership of Xxxxxxxx's
interests hereunder. Further, Xxxxxx specifically agrees to look solely
to Landlord's then equity interest in the Lot and Building and available
insurance proceeds for recovery of any judgment from Landlord; it being
specifically agreed that Landlord (original or successor) shall never be
personally liable for any such judgment, or for the payment of any
monetary obligation to Tenant. The provision contained in the foregoing
sentence is not intended to, and shall not limit any right that Tenant
might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest, or any action not involving the
personal liability of Landlord (original or successor) to respond in
monetary damages from Xxxxxxxx's assets other than Landlord's equity
interest aforesaid in the Lot and Building. With respect to any
services, including, without limitation,
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heat, air-conditioning or water to be furnished by Landlord, or
obligations to be performed by Landlord or Tenant hereunder, such party
shall in no event be liable for failure to furnish or perform the same
when (and the date for performance of the same shall be postponed so
long as such party is) prevented from doing so by strike, lockout,
accident, order or regulation of or by any governmental authority, or
failure of supply, or inability by the exercise of reasonable diligence
to obtain supplies, parts or employees necessary to furnish such
services, or perform such obligations or because of war or other
emergency, or for any cause beyond its reasonable control, or for any
cause due to any act or neglect of the other or the other's servants,
agents, employees, licensees, invitees or any person claiming by,
through or under the other; provided, however, that in no event shall
the foregoing excuse or delay such payment of rent or other monies. In
no event shall either party ever be liable to the other for any
indirect, special or consequential damages, including loss of business,
suffered by it from whatever cause.
In the event that due to the negligence or willful misconduct of
Landlord or Landlord's agents or employees, if there is any interruption
in utilities being supplied to the Premises and if as a result of such
interruption, Tenant is prevented from using all or any material portion
of the Premises for more than three (3) business days after notice
thereof from Tenant to Landlord, than from and after the end of such
3-business day period until the Premises (or such portion) is rendered
usable, Annual Fixed Rent and additional charges for Operating Expenses
allocable to the Premises or a just and proportionate part thereof shall
be abated.
13.4 NOTICE TO MORTGAGEE AND GROUND LESSOR. After receiving notice (which
notice contains an address for such holder or ground lessor from
Landlord) that any person, firm or other entity holds a mortgage which
includes the Premises as part of the mortgaged premises, or that is the
ground lessor under a lease with Landlord, as ground lessee, which
includes the Premises as part of the demised premises, no default or
termination notice from Tenant to Landlord shall be effective unless and
until a copy of the same is given to such holder or ground lessor, and
the curing of any of Landlord's defaults by such holder or ground lessor
shall be treated as performance by Landlord. For the purposes of this
Section 13.4, Section 13.5 or Section 13.14, the term "mortgage"
includes a mortgage on a leasehold interest of Landlord (but not one on
Tenant's leasehold interest).
The Tenant agrees that, in the event of foreclosure of any such mortgage
or deed of trust to which this Lease is subordinate (or deed or
assignment in lieu of foreclosure thereof), at the election of the
holder, provided such holder has agreed or does agree to recognize
Xxxxxx's interest hereunder and not to disturb Xxxxxx's occupancy of the
Premises, the Tenant shall attorn to such holder (and its successors and
assigns) as the successor holder of the Landlord's interest hereunder in
which case, subject to any applicable terms and provisions of any
written agreement between Xxxxxx and such holder, this Lease shall
continue in
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effect all as if it had been a lease entered into directly between
Tenant and such holder (and its successors and assigns). The foregoing
shall be self-operative; however, the Tenant agrees, upon receipt of
written request so to do, to execute such instruments, if any, as may
reasonably be required in order to give effect to the foregoing.
13.5 ASSIGNMENT OF RENTS. With reference to any assignment by Landlord of
Xxxxxxxx's interest in this Lease, or the rents payable hereunder,
conditional in nature or otherwise, which assignment is made to the
holder of a mortgage or ground lease on property which includes the
Premises. Xxxxxx agrees:
(i) that the execution thereof by Xxxxxxxx, and the acceptance thereof
by the holder of such mortgage, or the ground lessor, shall never
be treated as an assumption by such holder or ground lessor of any
of the obligations of Landlord hereunder, unless such holder or
ground lessor shall, by notice sent to Tenant, specifically
otherwise elect; and
(ii) that, except as aforesaid, such holder or ground lessor shall be
treated as having assumed Landlord's obligations hereunder only
upon foreclosure of such holder's mortgage or the taking of
possession of the Premises, or in the case of a ground lessor, the
assumption of Landlord's position hereunder by such ground lessor.
In no event shall the acquisition of title to the Building or Lot
or any part thereof and the land on which the same is located by a
purchaser which, simultaneously therewith, leases the same back to
the seller thereof, be treated as an assumption by operation of
law or otherwise of Landlord's obligations hereunder, but Tenant
shall look solely to such seller-lessee, and its successors from
time to time in title, for performance of Landlord's obligations
hereunder. In any such event, this Lease shall be subject and
subordinate to the lease to such seller, provided that such Seller
executes, acknowledges and delivers to Tenant a commercially
reasonable non-disturbance and attornment agreement reasonably
concurrently with such sale-leaseback. For all purposes such
seller-lessee, and its successors in title, shall be the Landlord
hereunder unless and until Xxxxxxxx's position shall have been
assumed by such purchaser-lessor.
13.6 MECHANICS LIENS. Xxxxxx agrees promptly to discharge of record (either
by payment or by the filing of the necessary bond, or otherwise) any
mechanics', materialmen's or other lien against the Premises and/or
Landlord's interest therein, which liens may arise out of any payment
due for, or purported to be due for, any labor, services, materials,
supplies or equipment alleged to have been furnished to or for Tenant
in, upon or about the Premises.
13.7 NO BROKERAGE. Each of Landlord and Tenant warrants and represents that
it has not dealt with any broker, in connection with the consummation of
this Lease, and in the event any claim is made against the other party
relative to dealings with
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brokers other than any broker named in Section 1.2, the warranting party
shall defend the claim with counsel reasonably approved by the other
party and save harmless and indemnify the other party on account of
loss, cost or damage which may arise by reason of any such claim.
Xxxxxxxx is not responsible for any fee due to Leggatt XxXxxx.
13.8 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease or the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Lease, or
the application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Lease shall
be valid and enforceable to the fullest extend permitted by law.
13.9 PROVISIONS BINDING, ETC. Except as herein otherwise provided, the terms
hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant and, if
Tenant shall be an individual, upon and to his heirs, executors,
administrators, successors and assigns. If two or more persons are named
as Tenant herein, each of such persons shall be jointly and severally
liable for the obligations of the Tenant hereunder, and landlord may
proceed against any one without first having commenced proceedings
against any other of them. The reference contained to successors and
assigns of Tenant is not intended to constitute a consent to assignment
by Xxxxxx, but has reference only to those instances in which Landlord
may later give consent to a particular assignment as required by those
provisions of Article V hereof.
13.10 RECORDING. Xxxxxx agrees not to record the within Lease, but each party
hereto agrees, on the request of the other, to execute a so-called
notice of lease in form recordable and complying with applicable law and
reasonably satisfactory to Xxxxxxxx's and Xxxxxx's attorneys. (The form
annexed hereto as Exhibit G is so satisfactory). In no event shall such
document set forth the rent or other charges payable by Tenant under
this Lease, and any such document shall expressly state that it is
executed pursuant to the provisions contained in this Lease and is not
intended to vary the terms and conditions of this Lease.
13.11 NOTICES. Whenever, by the terms of this Lease, notice shall or may be
given either to Landlord or to Tenant, such notice shall be in writing
and shall be delivered in hand with a written acknowledgment of receipt
or sent by registered or certified mail, postage prepaid or delivered
by recognized overnight or same day courier or by telecopy provided
such notice concurrently sent by mail or overnight service:
If intended for Landlord, addressed to landlord at the
address set forth in Section 1.2 of this Lease (or to such
other address or
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addresses as may from time to time hereafter be designated
by Landlord by like notice). Fax No.: (000) 000-0000.
If intended for Tenant, addressed to Tenant at the address
set forth in Section 1.2 of this Lease prior to Xxxxxx's
occupancy of the Premises and thereafter addressed to Tenant
at the Premises, (or to such other address or addresses as
may from time to time hereafter be designated by Tenant by
like notice). Fax No.: (000) 000-0000
All such notices shall be effective when delivered in hand, or on the
earlier of receipt or refusal.
13.12 WHEN LEASE BECOMES BINDING. Employees or agents of Landlord have no
authority to make or agree to make a lease or any other agreement or
undertaking in connection herewith. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall
become effective and binding only upon the execution and delivery hereof
by both Landlord and Xxxxxx. All negotiations, considerations,
representations and understandings between Landlord and Tenant are
incorporated herein and may be modified or altered only by written
agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.
13.13 PARAGRAPH HEADINGS. The paragraph headings throughout this instrument
are for convenience and reference only, and the words contained therein
shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Lease.
13.14 RIGHTS OF MORTGAGEE/GROUND LEASE. It is understood and agreed that the
rights and interests of Tenant under this Lease shall be subject and
subordinate to any mortgages or deeds of trust that may hereafter be
placed upon the Building and/or the Lot, and/or any part of the
foregoing, and to any and all advances to be made thereunder, and to the
interest thereon, and all renewals, modifications, replacements and
extensions thereof, if the mortgagee or trustee named in said mortgages
or deeds of trust shall elect by notice delivered to Tenant to subject
and subordinate the rights and interest of Tenant under this lease to
the lien of its mortgage or deed of trust; it is further agreed that any
mortgagee or trustee may elect to give the rights of interest of Tenant
under this Lease priority over the lien of its mortgage or deed of
trust. In the event of either such election, and upon notification by
such mortgagee or trustee to Tenant to that effect, the rights and
interest of Tenant under this Lease shall be deemed to be subordinate
to, or to have priority over, as the case may be, the lien of said
mortgage or deed of trust, whether this Lease is dated prior to or
subsequent to the date of said mortgage or deed of trust. Tenant shall
execute and deliver whatever instruments reasonably may be required for
such purposes. It shall be a condition to any subordination of
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this Lease to any mortgage or deed of trust or ground lease encumbering
the Building or Lot that Landlord shall obtain for Tenant an agreement
(a "Non-Disturbance Agreement") from the holder thereof (each such
party, a "Holder") which provides that (i) if any such Holder forecloses
or takes a deed in lieu of foreclosure or otherwise exercises its rights
under its mortgage or deed of trust or ground lease or (ii) if such
Holder otherwise acquires Landlord's interest in this Lease, such Holder
shall recognize Tenant's rights under this Lease, shall not disturb
Tenant's occupancy of this Premise under this Lease and, subject to the
terms and conditions of such agreement, shall assume Landlord's
obligations under this Lease.
This Lease is subject and subordinate to a certain Ground Lease (the
"Ground Lease") between
Massachusetts Turnpike Authority as groundlessor
("Groundlessor") and Landlord as groundlessee, a copy of which has been
provided by Landlord to Tenant (the "Ground Lease"). The Ground Lease
may be amended from time to time by Landlord, and this Lease shall be
subject and subordinate to the Ground Lease as so amended provided that
any such amendment does not materially adversely affect the rights and
obligations of the Tenant hereunder. As soon as reasonably possible,
Landlord shall obtain from the Groundlessor a subtenant non-disturbance
agreement in the form annexed to the Ground Lease (a copy of which is
annexed as Exhibit H hereto) for the benefit of Tenant and Xxxxxx agrees
to execute and deliver the same (for convenience purposes Tenant may be
required to execute and deliver the same prior to its execution and
delivery by Groundlessor). If Landlord does not obtain such
non-disturbance agreement within sixty (60) days after the date of this
Lease, then Tenant may terminate this Lease by notice to such effect to
Landlord and if Tenant so exercises such right of termination and
Landlord does not deliver such non-disturbance agreement within ten days
thereafter, then this Lease shall terminate without further recourse to
the parties. Wherever any consent of Groundlessor is required in
connection with any consents to be made by Landlord hereunder, the
failure of Groundlessor to give such consent shall be deemed to be a
reason for the withholding of such consent by Xxxxxxxx.
13.15 STATUS REPORT. Recognizing that both parties may find it necessary to
establish to third parties, such as accountants, banks, mortgagees or
the like, the then current status of performance hereunder, either
party, on the request of the other made from time to time, will promptly
furnish to Landlord, or the holder of any mortgage encumbering the
Premises, or to Tenant, as the case may be, a statement of the status of
any factual matter pertaining to this Lease, including, without
limitation, acknowledgments to the best of such party's knowledge, that
(or the extent to which) each party is in compliance with its
obligations under the terms of this Lease.
13.16 TENANT'S FINANCIAL CONDITION. Upon Landlord's demand, which may be made
only if required by lender or prospective lender to Landlord, and then
no more often than once per year, Tenant shall furnish to Landlord, at
Tenant's sole
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cost and expense, then current financial statements of Tenant and its
guarantor (if any), audited (if audited statements have been recently
prepared on behalf of Tenant or such guarantor) or otherwise certified
as being true and correct by the chief financial officer of Tenant or
such guarantor, as the case may be. So long as Tenant is a so-called
public company, then Landlord waives the provisions of this Section
13.16.
13.17 NO PARTNERSHIP. The relationship of the parties hereto is that of
landlord and tenant, and partnership, joint venture or participation is
hereby created.
13.18. HOLDING OVER. Any holding over by Tenant after the expiration of the
Lease Term shall be treated as a tenancy at sufferance at 1.5 times the
Fixed Rent and 10% of the additional rent herein provided to be paid
during the last twelve (12) months of the Lease Term (prorated on a
daily basis) and shall otherwise be on the terms and conditions set
forth in this Lease, as far as applicable.
13.19 NON-SUBROGATION. Insofar as, and to the extent that, the following
prevision may be effective without invalidating or making it impossible
to secure insurance coverage obtainable from responsible insurance
companies doing business in the locality in which the premises are
located (even though extra premium may result therefrom): Landlord and
Tenant mutually agree that, with respect to any hazard which is covered
by insurance then being carried by them, or which could have been
covered by a so-called All Risk policy, the one carrying (or who could
have carried) such insurance and suffering such loss releases the other
of and from any and all claims with respect to such loss; and they
further mutually agree that their respective insurance companies shall
have no right of subrogation against the other on account thereof.
13.20 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts
as the same may from time to time exist.
13.21 DEFINITION OF ADDITIONAL RENT. Without limiting any other provision of
this Lease, it is expressly understood and agreed that Xxxxxx's
participation in Taxes, Operating Expenses, and all other charges which
Xxxxxx is required to pay hereunder, together with all interest and
penalties that may accrue thereon, shall be deemed to be Additional
Rent, and in the event of non-payment thereof by Xxxxxx, Landlord shall
have all of the rights and remedies with respect thereto as would accrue
to Landlord for non-payment of Fixed Rent. Xxxxxx's failure to object to
any statement, invoice or billing rendered by Landlord within a period
of three hundred sixty five (365) days after Xxxxxx's receipt thereof
shall constitute Tenant' acquiescence with respect thereto and shall
render such statements, invoice or billing on account between landlord
and Tenant.
13.22 EXTENSION OPTION. Upon and subject to the following terms and
conditions, Tenant shall have the right to extend the term of this Lease
for two consecutive
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periods of five (5) years each provided that (i) Tenant itself occupies
at least 50% of the Premises, and (ii) it shall be a condition to the
extension for the second such period that Tenant shall have timely and
properly extended the term of this Lease for the first such period, and
(iii) at the time of its exercise of any such extension and at the
commencement of such extension period Tenant shall not be in default
under this Lease beyond the expiration of applicable notice and cure
periods, and (iv) Tenant shall give notice of such extension at least
twelve (12) months prior to the then expiration of the term of this
Lease. Provided that the Tenant has timely and properly complied with
all the foregoing conditions, then, without the necessity of any further
action, the term of this Lease shall be extended for such five-year
extension period on all the terms and conditions hereof except that
there shall be no further rights of extension after Tenant extends for
the second five-year period and for and with respect to each such
extension period annual Fixed Rent shall be equal to the greater of (i)
the annual Fixed Rent immediately in effect prior to such extension or
(ii) an amount an equal to 87.5% of the then Fair Market Rental Value of
the Premises.
"Fair Market Rental Value" shall be determined based on the use of the
Premises as first-class professional space utilizing properties of a
similar character in comparable first-class office buildings within the
City of Boston. At least sixty (60) days prior to the last day upon
which the Tenant may give notice exercising such option Tenant may
request that Landlord designate the annual Fixed Rent payable in respect
of the extension period and Landlord shall designate such rent payable
during the extended term in question within thirty days thereafter but
Landlord shall not be required to make such designation more than
seventeen (17) months prior to the commencement of the extended term in
question. If Tenant disagrees with Landlord's designation then Tenant
shall have the right in its notice exercising such extension to make a
request of Landlord for a broker determination (the "Broker
Determination") of the Fair Market Rental Value for such extended term
which Broker Determination shall be made in the manner set forth in
Exhibit D. If Tenant fails timely to request the Broker Determination
then the term of the Lease shall be extended for the applicable extended
term and the Fair Market Rent Value for the Premises for such extended
term shall be equal to that designated by Landlord.
13.23 RIGHT OF FIRST OFFER. If at any time during the term of this Lease while
the Tenant is not in default under this lease beyond applicable notice
and/or cure periods and while Tenant itself occupies at least that
portion of the Premises equivalent to at least 3 floors in either Wing
One or Wing Two of the Building, additional space of the Building
devoted to an Office Use shall become available for leasing (this right
shall not apply to the initial leasing thereof but shall be a so-called
second generation right), Landlord shall notify Tenant thereof setting
forth in such notice the terms and conditions upon which Landlord shall
be willing to lease such space to Tenant and by notice from Tenant to
Landlord given within ten (10) business days thereafter Tenant may elect
one of the following:
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(i) it may accept such offer in which event Landlord and Tenant
shall enter into an amendment to this Lease adding the additional space
to the Premises demised under this Lease in accordance with the terms
and conditions offered by Landlord and in the case of space so offered
which is no more than 5,000 square feet of rentable area the offer shall
be made for a term which is coterminous with the term of this Lease and
if more than 5,000 square feet then for a term which shall be the longer
of the then term remaining under this Lease or five years; or
(ii) it may reject such offer (and Xxxxxx's failure to respond
within such ten (10) business day period shall be deemed to be a
rejection of such offer) in which case Landlord may lease such offered
space upon such terms and conditions as Landlord shall determine; or
(iii) it may give to Landlord a counteroffer setting forth the
terms and conditions upon which Xxxxxx is willing to accept such the
leasing of such Space and if Xxxxxx makes a counteroffer then Landlord
may elect to (i) accept such counteroffer in which case Landlord and
Tenant shall enter into an amendment to this Lease adding the additional
space to this lease in accordance with the terms of such counteroffer or
(ii) it may elect to lease such space to any third party but upon terms
and conditions which are not substantially more advantageous to such
third party than those contained in the Tenant's counteroffer. If the
space being offered is the V&C premises consisting of approximately
40,000 square feet of rentable area then Tenant may elect not to lease
all of the V&C premises but must lease the same in at least whole floor
increments starting with the top-most floor and working down, and in its
offer to Tenant, Landlord shall set forth the Annual Fixed Rent which
Landlord is prepared to accept for a leasing of less than all of the
offered V&C premises.
If at the time that Landlord makes an offer to Tenant to lease to
Tenant any additional space of more than 5,000 square feet there is less
than five (5) years remaining in the term of this Lease, then as a
condition to Tenant's acceptance of such offer or making a counteroffer,
Tenant must exercise any remaining option so that there shall be at
least five (5) years remaining in the term of this Lease and if there
are insufficient options then Tenant shall have no right to lease the
offered space and Landlord need not make such offer
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WITNESS the execution hereof, under seal, in any number of
counterparts, each of which counterparts shall be deemed an original for
all purposes, as of the day and year first above written.
GATEWAY DEVELOPERS LLC
By: Cornerstone 1999, LLC, its Manager
By: /s/ Xxxx Xxxxxx
---------------------------
Its Manager
Hereunto duly authorized
LANDLORD
XXXXX, INC.
By: /s/ Xxxx Xxxxx
----------------------------
Its Vice President and Chief Financial Officer
Hereunto duly authorized
TENANT
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EXHIBIT A
DESCRIPTION OF PREMISES
(omitted)
EXHIBIT B
DESCRIPTION OF LOT
(omitted)
EXHIBIT C
DESCRIPTION OF WORK
(omitted)
EXHIBIT C-1
LANDLORD/ TENANT MATRIX
(omitted)
\
EXHIBIT D
BROKER DETERMINATION OF FAIR MARKET RENTAL VALUE
DEFINITION OF FAIR MARKET RENTAL VALUE:
"Fair Market Rental Value" shall be computed as of the date in question,
and shall be the then current annual rental value, including provisions for
subsequent increases and other adjustments, of the Premises in their then
condition, upon and subject to the terms and conditions of this Lease, except
for annual Fixed Rent. In determining Fair Market Rental Value, all relevant
factors shall be taken into account and given effect (the parties agreeing that
any property outside the City of Boston is irrelevant for these purposes).
Tenant's notice shall specify whether Tenant requests a quotation of Fair Market
Rental Value for the Premises "as-is," and/or a quotation of Fair Market Rental
Value including a tenant improvement allowance. If Tenant requests that
Landlord's quotation include a tenant improvement allowance Landlord's quotation
shall include a tenant improvement allowance, in an amount (if any) which is
consistent with Landlord's then current practices and not less than 75% of the
then "market".
Where in the Lease to which this Exhibit is attached provision is made for
a Broker Determination of Fair Market Rental Value, the following procedures and
requirements shall apply:
1. TENANT'S REQUEST. Tenant shall send a notice to Landlord in accordance
with the applicable section of the Lease, requesting a Broker
Determination of the Fair Market Rental Value, which notice to be
effective must (i) make explicit reference to the Lease and to the
specific section of the Lease pursuant to which said request is being
made, (ii) include the name of a broker selected by Tenant to act for
Tenant, which broker shall be affiliated with a major Boston
commercial real estate brokerage firm selected by Tenant and which
broker shall have at least ten (10) years experience dealing in
properties of a nature and type generally similar to the Building
located in the City of Boston, and (iii) explicitly state that
Landlord is required to notify Tenant within thirty (30) days of an
additional broker selected by Landlord.
2. LANDLORD'S RESPONSE. Within thirty (30) days after Xxxxxxxx's receipt
of Xxxxxx's notice requesting the Broker Determination and stating the
name of the broker selected by Xxxxxx, Landlord shall give written
notice to Tenant of Landlord's selection of a broker having at least
the affiliation and experience referred to above.
D-1
3. SELECTION OF THIRD BROKER. Within ten (10) days thereafter the two (2)
brokers so selected shall select a third such broker also having at
least the affiliation and experience referred to above.
4. RENTAL VALUE DETERMINATION. Within thirty (30) days after the
selection of the third broker, the three (3) brokers so selected, by
majority opinion, shall make a determination of the Fair Market Rental
Value of the Premises for the Extended Term or the Expansion Space, as
the case may be. Such Fair Market Rental Value determination (x) may
include provision for annual increases in rent if so determined, (y)
shall take into account the as-is condition of the Premises, and (z)
shall take account of, and be expressed in relation to, the payment in
respect of taxes and operating costs and provisions for paying for
so-called tenant electricity as contained in the Lease. The brokers
shall advise Landlord and Tenant in writing by the expiration of said
thirty (30) day period of the Fair Market Rental Value as so
determined.
5. RESOLUTION OF BROKER DEADLOCK. If the Brokers are unable to agree at
least by majority on a determination of Fair Market Rental Value, then
the brokers shall send a notice to Landlord and Tenant by the end of
the thirty (30) day period for making said determination setting forth
their individual determinations of Fair Market Rental Value, and the
highest such determination and the lowest such determination shall be
disregarded and the remaining determination shall be deemed to be the
Fair Market Rental Value.
6. COSTS. Each party shall pay the costs and expenses of the broker
selected by it and each shall pay one half (1/2) of the costs and
expenses of the third broker.
7. FAILURE TO SELECT BROKER OR FAILURE OF BROKER TO SERVE. If Tenant
shall have requested a Broker Determination and Landlord shall not
have designated a broker within the time period provided therefor
above and such failure shall continue for more than ten (10) days
after notice thereof, then Xxxxxx's broker shall alone make the
determination of the Fair Market Rental Value in writing to Landlord
and Tenant within thirty (30) days after the expiration of Landlord's
right to designate a broker hereunder. If Xxxxxx and Landlord have
both designated brokers but the two brokers so designated do not,
within a period of ten (10) days after the appointment of the second
broker, agree upon and designate the third broker willing so to act,
the Tenant, the Landlord or either broker previously designated may
request the Greater Boston Real Estate Board, Inc. to designate the
third broker willing so to act and a broker so appointed shall, for
all purposes, have the same standing and powers as though he had been
seasonably appointed by the brokers first appointed. In case of the
inability or refusal to serve of any person designated as a broker, or
in case
D-2
any broker for any reason ceases to be such, a broker to fill such
vacancy shall be appointed by the Tenant, the Landlord, the brokers
first appointed or the said Greater Boston Real Estate Board, Inc., as
the case may be, whichever made the original appointment, or if the
person who made the original appointment fails to fill such vacancy,
upon application of any broker who continues to act or by the Landlord
or Tenant such vacancy may be filled by the said Greater Boston Real
Estate Board, Inc., and any broker so appointed to fill such vacancy
shall have the same standing and powers as though originally
appointed.
D-3
EXHIBIT E
Parking shall be provided on the following floors of the Garage:
P-1: The entire floor will be for Tenant and V&C for reserved 24/7 spaces.
If all of Tenant's 75 reserved 24/7 spaces cannot be accommodated on P-1
together with all of the V&C's reserved 24/7 spaces then Tenant shall have a pro
rata share thereof based on square footage and at least 25 of Tenant's spaces
shall be next to or very near the Wing Two elevator serving the Tenant's
Premises in Wing Two.
P-2: Any 24/7 reserve not accommodated on P-1 will be accommodated on P-2
and at least five visitor spaces will be placed next to or very near the
elevators for Wing One.
P-2 and P-3: The remaining allocation of spaces shall be identified either
as Tenant or V&C spaces and numbered spaces located under each tenant's
respective wings as closely as reasonably possible.
The allocation of compact to normal size spaces should be the same for both
Tenant and V&C for all spaces on all parking levels and the goal is to have no
more than 30% of all spaces as compact spaces but in any case there shall be no
more than 40% of all spaces as compact spaces.
Nominal size spaces are being designed to be 8 1/2 feet by 18 feet and
compact size spaces 7 1/2 feet by 16 feet. So long as Tenant leases more than
50% of the office space of the Building, any change in the management company
for the Garage (after the initial manager) shall require Tenant's prior written
consent, which Tenant shall not unreasonably withhold or delay.
E-1
EXHIBIT F
The air conditioning system shall be designed to provide 20 CFM per person
at one person/150 square feet; for cooling: 78 degrees dry bulb inside at 88
degrees Fahrenheit dry bulb outside; and for heating: 72 degrees Fahrenheit
inside at 9 degrees outside. Landlord represents and warrants that it has been
informed by its engineer that the foregoing standard complies with all
applicable codes.
F-1
EXHIBIT G
Notice of Lease
(omitted)
EXHIBIT H
Ground Lessor SNDA
(omitted)
EXHIBIT I
Cleaning Specifications
(omitted)
