XXXXXX PLACE
BOSTON, MASSACHUSETTS
OFFICE LEASE
to
OXIGENE, Inc.
FROM THE OFFICE OF:
Goulston & Storrs, P.C.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
OFFICE LEASE
XXXXXX PLACE
BOSTON, MASSACHUSETTS
TABLE OF CONTENTS
1. BASIC DATA
2. HABENDUM; TERM
3. POSSESSION
4. BASE RENT
5. ADDITIONAL RENT
A. Definitions
(i) Base Year
(ii) Base Year Operating Expenses
(iii) Calendar Year
(iv) Tenants Proportionate Share
(v) Taxes
(vi) Operating Expenses
B. Expense Adjustment
6. USE OF PREMISES
7. CONDITION OF PREMISES
8. SERVICES
A. List of Services
B. Billing for Electricity
C. Interruption of Services
D. Charges for Services
E. Energy Conservation
9. REPAIRS; HAZARDOUS MATERIALS
10. ADDITIONS AND ALTERATIONS
11. COVENANT AGAINST LIENS
12. INSURANCE
A. Waiver of Subrogation
B. Coverage
C. Avoid Action Increasing Rates
13. FIRE OR CASUALTY
14. WAIVER OF CLAIMS - INDEMNIFICATION
15. NONWAIVER
16. CONDEMNATION
17. ASSIGNMENT AND SUBLETTING
18. SURRENDER OF POSSESSION
19. HOLDING OVER
20. ESTOPPEL CERTIFICATE
21. SUBORDINATION
22. CERTAIN RIGHTS RESERVED BY LANDLORD
23. RULES AND REGULATIONS
24. LANDLORD'S REMEDIES
25. EXPENSES OF ENFORCEMENT
26. COVENANT OF QUIET ENJOYMENT
27. SECURITY DEPOSIT
28. REAL ESTATE BROKER
29. UNDERLYING LEASES
30. NOTICE TO MORTGAGEE AND GROUND LESSOR
31. ASSIGNMENT OF RENTS
32. PERSONAL PROPERTY TAXES
33. MISCELLANEOUS
A. Rights Cumulative
B. Interest
C. Terms
D. Binding Effect
E. Lease Contains All Terms
F. Delivery for Examination
G. No Air Rights
H. Modification of Lease
I. Intentionally Deleted
J. Transfer of Landlord's Interest
K. Landlord's Title
L. Prohibition Against Recording
M. Captions
N. Covenants and Condition
O. Only Landlord/Tenant Relationship
P. Application of Payments
Q. Definition of Landlord
R. Time of Essence
S. Governing Law
T. Partial Invalidity
U. Size of Premises
34. NOTICES
35. LIMITATION ON LIABILITY
36. LANDLORD'S DESIGNATED AGENT
37. COMMENCEMENT AND TERMINATION DATES
38. CANCELLATION OPTION
39. CONSTRUCTION
40. PARKING
Exhibit A Plan of Premises
Exhibit B Work Letter
Exhibit C Rules and Regulations
Exhibit D Cleaning Specifications
Exhibit E Measurement Standards
Exhibit F Holidays
Exhibit G Affirmative Action and Resident Preference Goals
OFFICE LEASE
XXXXXX PLACE
BOSTON, MASSACHUSETTS
THIS INSTRUMENT is an Agreement of Lease in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in the
Office Section of Xxxxxx Place (hereinafter referred to as the "Office Section")
located at 000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxxx (the
project known as Xxxxxx Place, including without limitation the hotel portions
thereof, plazas, pedestrian bridges, service areas and all other common areas,
together with all present and future easements, additions, improvements, air
rights and other rights appurtenant thereto, is hereinafter referred to as the
"Property"), subject to the covenants, terms, provisions and conditions of this
Lease. The "Office Section" means that portion of the building (the "Building")
located at the aforesaid address consisting of seven (7) levels of office area
containing approximately 845,000 square feet of rentable floor area. The
Building also contains retail shopping, restaurant, parking and other
facilities, which are not included within the Office Section. The Building does
not, however, include the hotel or residential portions of the Property or the
pedestrian bridges. In consideration thereof, Landlord and Tenant covenant and
agree as follows:
1. BASIC DATA.
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The following sets forth basic data and, where appropriate,
constitutes definitions of the terms hereinafter listed.
Date: February 26, 1997
Landlord: XXXXXX PLACE ASSOCIATES NOMINEE
CORPORATION, a Delaware nominee corporation
Present Mailing Address
of Landlord: x/x Xxxxx Xxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxx Xxxxxx Xxxxx
Boston, Massachusetts 02116
Tenant: OXIGENE, Inc., a Delaware corporation
Present Mailing Address
of Tenant: OXIGENE, Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Commencement Date: Subject to Paragraph 37 hereof, the earlier
of May 1, 1997, or the date of Substantial Completion
of the Premises (as defined in the Work Letter (the
"Work Letter") attached hereto as Exhibit B) whichever
is the first to occur.
Termination Date: Subject to Paragraph 37 hereof, five (5) years after
the Commencement Date, unless sooner terminated as
provided in this Lease.
Base Rent: At the rate of Fifty-Nine Thousand Three Hundred
Fifty-Three and 00/100 Dollars ($59,353.00) per annum,
in equal monthly installments of Four Thousand Nine
Hundred Forty-Six and 08/100 Dollars ($4,946.08)
(computed on the basis of $30.50 per rentable square
foot per annum at 1,946 rentable square feet of space).
(See Paragraph 4)
Base Year: The Calendar Year 1997.
Base Year Operating
Expenses: The amount of Operating Expenses incurred with respect
to the Base Year.
Tenant's Proportionate
Share: 0.24% (computed on the basis of 95% occupancy).
Use: General office purposes including a kitchenette for
employee use only.
Premises: That portion of the Office Section designated on
the plan attached hereto as Exhibit A and commonly
described as approximately 1,946 rentable square feet,
consisting of a portion of the Sixth Floor of One
Xxxxxx Place. Excepted and excluded from the Premises
are the roof or ceiling, the floor and all perimeter
walls of the Premises, except 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
Tenant's use of the Premises and properly enclosed)
utility lines, pipes and the like, to serve premises
other than the Premises, and to replace and maintain
and repair such utility lines, pipes and the like, in,
over and upon the Premises.
Common Areas: Those portions of the Property not leased to
any tenant, but for the benefit of the Property and its
tenants, such as landscaped areas, malls, pedestrian
walkways and bridges, restrooms, service areas and the
like.
Guarantor of
Tenant's Obligations: None.
Security Deposit: Seventy Thousand and 00/100 Dollars
($70,000) reduced by Fourteen Thousand and 00/100
Dollars ($14,000) on each anniversary of the
Commencement Date.
Broker: Collectively, Xxxxxxxx Xxxxx & Company and Whittier
Partners
2. HABENDUM; TERM.
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A. To have and to hold the Premises for the term commencing on the
Commencement Date and ending on the Termination Date, and the right to use the
Common Areas during such term in common with others entitled thereto. The Term
of this Lease (hereinafter referred to as the "Term") shall commence on the
Commencement Date specified in Paragraph 1 hereof and end on the Termination
Date specified in Paragraph I hereof, unless sooner terminated as provided
herein.
B. During the first month of the Term, the parties shall execute an
agreement setting forth the Commencement Date and the Termination Date of the
Lease.
3. POSSESSION.
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A. In the event the Premises shall not be substantially completed and
ready for occupancy on July 1, 1997, then Tenant shall have the option,
effective as of July 1, 1997, to cancel this Lease and the parties shall have no
further obligations hereunder and the terms of this Lease shall be null and
void. The Premises shall be substantially complete and ready for occupancy if
the Premises satisfy the requirements for Substantial Completion as set forth in
Exhibit B attached hereto.
B. If Tenant shall enter the Premises or any part thereof prior to the
Commencement Date (which Tenant may not do without Landlord's prior written
consent), such entry shall be at Tenant's sole risk and without interference to
any work then being performed in the Building by Landlord or other tenants or
occupants, and all of the covenants and conditions of this Lease shall be
binding upon the parties hereto with respect to such whole or part of the
Premises.
C. Except as set forth in Paragraph 37 hereof, the occurrence of any
of the events described in this Paragraph 3 shall not be deemed to accelerate or
defer the Termination Date.
4. BASE RENT.
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Tenant shall pay to Landlord or Landlord's agent without notice or
demand at the present mailing address of Landlord, or at such other place as
Landlord may from time to time designate in writing, in coin or currency which,
at the time of payment, is legal tender for private or public debts in the
United States of America, the Base Rent specified in Paragraph I hereof in the
equal monthly installments specified in Paragraph I hereof in advance on or
before the first day of each and every month during the Term, without any
abatement, counterclaim, set-off or deduction whatsoever. Notwithstanding the
foregoing sentence, Tenant shall pay the first full monthly installment of the
Base Rent at the time of execution of this Lease. If the Term commences other
than on the first day of a month or ends other than on the last day of the
month, the Base Rent for such month shall be prorated. The prorated Base Rent
for the portion of the month in which the Term commences shall be paid on the
first day of the first full month during the Term.
5. ADDITIONAL RENT.
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In addition to paying the Base Rent specified in Paragraph 4 hereof,
Tenant shall pay as "Additional Rent" the amounts determined pursuant to
Sub-Paragraphs B through C, inclusive, of this Paragraph 5. The Base Rent and
the Additional Rent are sometimes herein collectively referred to as the "Rent".
All amounts due under this Paragraph 5 as Additional Rent shall be payable for
the same periods and in the same manner, time and place as the Base Rent,
without any abatement, counterclaim, set-off or deduction whatsoever. Without
limitation on other obligations of Tenant which shall survive the expiration of
the Term, the obligations of Tenant to pay the Additional Rent provided for in
this Paragraph 5 shall survive the expiration of the Term. For any partial
Calendar Year, Tenant shall be obligated to pay only a pro rata share of the
Additional Rent, based on the number of days of the Term falling within such
Calendar Year.
A. Definitions. As used in this Paragraph 5, the terms:
(i) "Base Year" shall mean the calendar year specified in
Paragraph I hereof.
(ii) "Base Year Operating Expenses" shall mean the sum
specified in Paragraph 1 hereof.
(iii) "Calendar Year" shall mean each calendar year in
which any part of the Term falls, through and including the
year in which the Term expires.
(iv) "Tenants Proportionate Share" shall mean the percentage
specified in Paragraph I hereof, being the percentage calculated
by dividing the rentable area contained in the Premises by
802,750 (being 95% of the rentable square foot area of the Office
Section), such rentable area shall be determined by Landlord on a
uniform basis for the tenants of the Office Section.
(v) "Taxes" shall mean all real estate taxes and
assessments, special or otherwise, levied or assessed upon or
with respect to the Building or any part thereof and Common Areas
which Landlord determines in its sole judgment to be for the
benefit of the Building and ad valorem taxes for any personal
property of Landlord used in connection therewith. Should the
Commonwealth of Massachusetts, or any political subdivision
thereof, or any other governmental authority having jurisdiction
over the Building, (a) 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 (b) impose an income or franchise tax
or a tax on rents in substitution for or as a supplement to a tax
levied against the Building or any part thereof and/or the
personal property used in connection with the 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. Taxes shall also include, in the year
paid, all fees and costs incurred by Landlord in seeking to
obtain a reduction of, or a limit on the increase in, any Taxes,
regardless of whether any reduction or limitation is obtained.
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.
(vi) "Operating Expenses" shall mean (a) Taxes and (b) all expenses, costs
and disbursements of every kind and nature, paid or incurred by Landlord in
operating, owning, managing, leasing, repairing and maintaining the Office
Section, the Building, the Property and their appurtenances as such Taxes,
expenses, costs and disbursements are allocated to the Office Section by the
Landlord in its sole judgment or as the same are incurred directly in the
operation of Office Section, 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, or
cleaning; steam, water, sewer, electric, gas, telephone, and other utility
charges not billed directly to tenants by Landlord or the utility; expenses
incurred in connection with the central plant furnishing heating, ventilating
and air conditioning to the Office Section (and to the Building and the Property
where and to the extent the expenses of the Building and the Property are
otherwise allocable to the Office Section), which expenses may include a fee
paid to the operator of such central plant; costs of lighting, ventilating,
(including maintaining and repairing ventilating fans and fan rooms) making
routine repairs to and maintenance of underground roadways (and the access ramps
servicing such roadways) and railroad platforms and railroad rights of way
(including track); costs of repairing and maintaining fire protection systems
relating to the underground roadways, access ramps, railroad platforms and
railroad rights of way; 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 repair (which payments may be to affiliates of
Landlord); all other expenses paid in connection with cleaning, operating
management, maintenance and repair, including reasonable reserves for the
replacement of capital improvements and equipment contained in and/or used in
connection with operations; costs of any capital improvements completed after
the Base Year as reasonably amortized by Landlord, 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 The First
National Bank of Boston (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 previously included in
Operating Expenses and insurance proceeds, if any, received by Landlord on
account of damage to the particular capital improvement; increases in ground
rent or similar payments, if any (determined for the applicable Calendar Year on
an accrual basis). Operating Expenses shall not, however, include the following:
a. Costs of alterations of any tenant's premises for a
particular tenant and not for the benefit of the Office
Section or any group of tenants therein;
b. Principal or interest payments on loans secured by mortgages
or trust deeds on the Building and/or on the Property;
c. depreciation, except as otherwise provided herein;
d. interest and amortization of any superior mortgages or
increases in interest or debt on any mortgages or changes in
deeds of trust or any other debt for borrowed money;
e. leasehold improvements made for tenants of the Office
Section or the Building;
f. brokerage commissions;
g. refinancing costs;
h. the costs of a capital nature, including capital
improvements, capital repairs, capital equipment and capital
tools as determined in accordance with generally accepted
accounting principles; leasing commissions;
j. fines and/or penalties asserted against Landlord for
untimely payment of monies due;
k. the costs including permit, license and inspection fees
incurred in renovating or otherwise improving or decorating,
painting or redecorating vacant space or space for the
tenants or other occupants including the costs of tenant
installations incurred in connection with preparing space
for a new tenant;
1. any expense for which Landlord is otherwise compensated
through the proceeds of insurance or condemnation
proceedings;
m. legal fees incurred in connection with any negotiation of,
or disputes arising out of, any lease in the Office Section
of the Building (except for legal fees incurred in
connection with the Sublease (as hereinafter defined));
n. costs of special services rendered to any tenant in the
Office Section or the Building which are not generally
available to other tenants in the Office Section or the
Building;
o. the Landlord's cost of any service sold to the tenants or
other occupants for which the Landlord is entitled to be
reimbursed for an additional charge or rental over and above
the basic rent and escalation payable under the lease with
that tenant or occupant;
p. the costs of services or improvements which are not provided
to Tenant but which are provided to other tenants or
occupants of the Office Section or the Building;
q. the costs incurred due to the violation by Landlord of any
of the terms and conditions of the lease or any other lease
related to the Office Section or the Building (except for
costs incurred in connection with the Sublease);
r. the overhead and profit increments paid to subsidiaries or
affiliates of Landlord for management or other services to
the Building or Building Project or for supplies or other
materials to the extent that the cost of the services,
supplies, or materials exceed the costs that would have been
paid had the services, supplies or materials been provided
by unaffiliated parties on a competitive basis; and
s. the compensation paid to clerks, attendants, or other
persons in commercial concessions operated by the Landlord.
If less than 95% of the Office Section's rentable area shall have been
occupied by tenant(s) at any time during any Calendar Year, Operating Expenses
shall be determined for such Calendar Year to be an amount equal to the like
expense which would normally be expected to be incurred had such occupancy been
95% throughout such Calendar Year.
B. Expense Adjustment. Tenant shall pay to Landlord or Landlord's
agent as Additional Rent, a sum ("Expense Adjustment Amount") equal to Tenant's
Proportionate Share of the amount by which (i) Operating Expenses (subject to
adjustment pursuant to Paragraph 36C hereof) incurred with respect to each
Calendar Year exceeds (ii) Base Year Operating Expenses. The Expense Adjustment
Amount with respect to each Calendar Year shall be paid in monthly installments,
in an amount estimated from time to time by Landlord and communicated by written
notice to Tenant, which estimate may be revised to reflect, without limitation,
increases in Taxes during any period. Landlord shall cause to be kept books and
records showing Operating Expenses in accordance with an appropriate system of
accounts and accounting practices consistently maintained. Following the close
of each Calendar Year, Landlord shall cause the amount of the Expense Adjustment
Amount for such Calendar Year to be computed based on Operating Expenses for
such Calendar Year and Landlord shall deliver to Tenant a statement of such
amount and Tenant shall pay any deficiency to Landlord as shown by such
statement within thirty (30) days after receipt of such statement. If the total
of the estimated monthly installments paid by Tenant during any Calendar Year
exceed the actual Expense Adjustment Amount due from Tenant for such Calendar
Year, at Landlord's option such excess shall be either credited against
payments next due hereunder or refunded by Landlord, provided Tenant is not then
in default hereunder. Delay in computation of the Expense Adjustment Amount or
failure to deliver a statement of such amount shall not be deemed a default
hereunder or a waiver of Landlord's right to collect the Expense Adjustment
Amount. In computing the Expense Adjustment Amount, the following provisions
relating to Taxes shall be applicable: The amount of any refund of Taxes
received by Landlord shall be credited against Taxes for the Calendar Year in
which such refund is received; provided, however, that in the event Landlord
receives a refund of Taxes after the Termination Date (as the same may be
accelerated or extended as provided elsewhere in this Lease) which refund
relates to a Calendar Year during the Term hereof, the amount of such refund
fairly allocable to Tenant shall be refunded to Tenant by Landlord (net of
Tenant's allocated share of the cost of obtaining such refund and the cost, if
any, of making such refund); and further provided that if Tenant expands into
space formerly occupied by other tenants, which expansion space becomes subject
to this Lease, Tenant shall not be entitled to any refund or credit in
connection with a refund or abatement of Taxes for periods prior to Tenant's
occupancy of such expansion space. All references to Taxes "for" a particular
Calendar Year shall be deemed to refer to Taxes due and payable during such
Calendar Year without regard to when such Taxes are assessed or levied.
6. USE OF PREMISES.
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Tenant shall use and occupy the Premises in accordance with law; and
solely as an office for the type of business specified in Paragraph I hereof and
for no other purpose or purposes.
7. CONDITION OF PREMISES.
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The Premises are demised to Tenant and Tenant accepts the same "as is"
and all work necessary to prepare the Premises for Tenant's occupancy shall be
performed at Tenant's sole cost and expense, in accordance with the applicable
provisions of this Lease. Tenant's taking possession of any portion of the
Premises shall be conclusive evidence that such portion of the Premises was in
good order and satisfactory condition when Tenant took possession excluding
items of damage caused by Tenant or its agents, independent contractors or
suppliers. No promise of Landlord to alter, remodel or improve the Premises, the
Office Section or the Building and no representation by Landlord or its agents
respecting the condition of the Premises, the Office Section or the Building
have been made to Tenant or relied upon by Tenant other than as may be contained
elsewhere in this Lease (including Exhibit B attached hereto) or in any written
amendment hereto signed by Landlord and Tenant.
8. SERVICES.
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A. List of Services.
Landlord shall provide the following services, the costs of which are
included within Operating Expenses, on all days during the Term, except Sundays
and holidays (as set forth on Exhibit F attached hereto), unless otherwise
stated, and subject to all governmental rules, regulations and guidelines
applicable thereto:
(i) Heating and air conditioning in the Premises during the normal
heating and air conditioning seasons, from Monday through Friday, during
the period from 8 a.m. to 6 p.m. and on Saturday during the period from 8
a.m. to 1 p.m. Tenant will pay for all heating and air conditioning
requested and furnished prior to or following such hours at rates to be
established from time to time by Landlord. As of the date hereof, the
current rate for such additional services is forty-five dollars ($45.00)
per hour per floor per tenant. Requests for any additional services shall
be in writing and delivered to Landlord not later than 2 p.m. of the
previous day.
(ii) Adequate electrical wiring and facilities for standard building
lighting fixtures provided by Landlord and for Tenant's incidental uses (it
being understood that Tenant is to bear the cost of replacement of all
lamps, tubes, ballasts and starters for lighting fixtures in the Premises);
provided that (a) the connected electrical load for lighting and incidental
use equipment does not exceed an average of five xxxxx per square foot of
the Premises; (b) the electricity so furnished for incidental uses will be
at a nominal 120 volts and no electrical circuit for the supply of such
incidental use will have a current capacity exceeding 20 amperes; and (c)
such electricity will be used only for equipment and accessories normal to
office usage. If Tenant's requirements for electricity for lighting and
incidental uses are in excess of those set forth in the preceding sentence,
Landlord reserves the right to require Tenant to install the conduit,
wiring and other equipment necessary to supply electricity for such excess
incidental use requirements at Tenant's expense. City water from the
regular Building outlets for drinking, lavatory and toilet purposes.
(iv) Janitorial services as delineated in Exhibit D attached hereto.
(v) Window washing of the inside and outside of windows in the
Building's perimeter walls as may be situated in the Premises as delineated
in Exhibit D attached hereto.
(vi) Non-exclusive automatic passenger elevator service at all times.
(vii) Non-exclusive freight elevator service subject to reasonable
scheduling by Landlord.
(viii) Security services at a level consistent with other first class
office buildings in Boston, Massachusetts.
B. Billing for Electricity.
(i) Separate Metering. In the event that Landlord in its sole
discretion makes arrangements with the utility company supplying
electricity to the Premises for separate metering and billing, Tenant shall
pay (as hereinafter described) for the use of all electrical service to the
Premises (other than the electrical service necessary for Landlord to
fulfill its obligation to provide heating and air conditioning as provided
in Paragraph 8A(i) hereof). Tenant shall be billed directly by such utility
company and Tenant agrees to pay each xxxx promptly in accordance with its
terms. In the event that for any reason Tenant cannot be billed directly,
Landlord shall forward each xxxx received by it with respect to the
Premises to Tenant which Tenant shall pay promptly in accordance with its
terms.
(ii) Intentionally deleted.
C. Interruption of Services.
Tenant agrees that Landlord shall not be liable in damages, by
abatement of Rent or otherwise, for failure to furnish or delay in furnishing
any service, or for any diminution in the quality or quantity thereof, when such
failure or delay or diminution is occasioned, in whole or in part, by repairs,
renewals, or improvements, by any strike, lockout or other labor trouble, by
inability to secure electricity, gas, water, or other fuel at the Building after
reasonable effort so to do, by any accident or casualty whatsoever, by act or
default of Tenant or other parties, or by any other cause beyond Landlord's
reasonable control; and such failures or delays or diminution shall never be
deemed to constitute an eviction or disturbance of Tenant's use and possession
of the Premises or relieve Tenant from paying Rent or performing any of its
obligations under this Lease.
D. Charges for Services.
Charges for any service for which Tenant is required to pay, from time
to time hereunder, including but not limited to after hours heating or air
conditioning shall be due and payable at the same time as the installment of
Rent with which they are billed, or if billed separately, shall be due and
payable as further Additional Rent within ten (10) days after such billing. If
Tenant shall fail to make payment for any such services, Landlord may, without
notice to Tenant, in addition to any and all other remedies available under this
Lease or otherwise, discontinue any or all of such services and such
discontinuance shall not be deemed to constitute an eviction or disturbance of
Tenant's use and possession of the Premises or relieve Tenant from paying Rent
or performing any of its other obligations under this Lease.
E. Energy Conservation.
Notwithstanding anything to the contrary in this Paragraph 8 or
elsewhere in this Lease, Landlord shall have the right to institute such
policies, programs and measures as may be necessary or desirable, in Landlord's
reasonable discretion, for the conservation and/or preservation of energy or
energy related services if consistent with similar programs instituted generally
in first-class office buildings in Boston, or as may be required to comply with
any applicable codes, rules and regulations, whether mandatory or voluntary.
9. REPAIRS; HAZARDOUS MATERIALS.
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Tenant will, at Tenant's own expense, keep the Premises, including all
improvements, fixtures and furnishings therein, in good order, repair and
condition at all times during the Term, and Tenant shall promptly and adequately
repair all non-structural damage to the Premises and replace or repair all
damaged or broken glass, fixtures and appurtenances on the Premises, under the
supervision and subject to the reasonable approval of Landlord, and within any
reasonable period of time specified by Landlord. If Tenant does not do so,
Landlord may, but shall not be obligated to, make such repairs and replacements,
and Tenant shall pay Landlord the cost thereof, including a percentage of the
cost thereof (to be uniformly established for the Office Section) sufficient to
reimburse Landlord for all overhead, general conditions, fees and other costs or
expenses arising from Landlord's involvement with such repairs and replacements
forthwith upon being billed for same. Landlord may, but shall not be required
to, enter the Premises, upon reasonable prior notice, at all reasonable times
(and at any time in emergency situations) to make such repairs, alterations,
improvements and additions to the Premises, to the Office Section or the
Building or to any equipment located in the Office Section or the Building as
Landlord shall desire or deem necessary or as Landlord may be required to do by
governmental authority or court order or decree. Landlord shall use reasonable
efforts not to interfere with Tenant's business.
Tenant shall not (either with or without negligence) cause or permit the
escape, disposal or release of any biologically or chemically active or
hazardous substances, or materials (collectively the "Hazardous Materials").
Tenant shall not allow the storage or use of Hazardous Materials in any manner
not sanctioned by law or by the highest standards prevailing in the industry for
the storage and use of such Hazardous Materials, nor allow to be brought into
the Building any Hazardous Materials except to use in the ordinary course of
Tenant's business, and then only after written notice is given to Landlord of
the identity of Hazardous Materials. Without limitation, Hazardous Materials
shall include those described in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et
seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section
6901 et seq., any applicable state or local laws and the regulations adopted
under these acts. If any lender or governmental agency shall ever require
testing to ascertain whether or not there has been any release of Hazardous
Materials, then the reasonable costs thereof shall be reimbursed by Tenant to
Landlord upon demand as additional charges if such requirement applies to the
Premises. In addition, Tenant shall execute affidavits, representations and the
like from time to time as Landlord may reasonably request concerning Tenant's
best knowledge and belief regarding the presence of Hazardous Materials on the
Premises. In all events, Tenant shall indemnify Landlord in the manner elsewhere
provided in this Lease from any release of Hazardous Materials on the Premises
occurring while Tenant is in possession or elsewhere if caused by Tenant or
persons acting under Tenant. The within covenants shall survive the expiration
or earlier termination of the Term.
10. ADDITIONS AND ALTERATIONS.
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A. Tenant shall not, without the prior written consent of Landlord,
make any alterations, improvements or additions to the Premises exceeding Two
Thousand Five Hundred and 00/100 Dollars ($2,500) in value. Landlord's refusal
to give said consent shall be conclusive. If Landlord consents to said
alterations, improvements or additions, it may impose such reasonable conditions
with respect thereto as Landlord deems reasonably appropriate, including,
without limitation, requiring Tenant to furnish Landlord with security for the
payment of all costs to be incurred in connection with such work, insurance
against liabilities which may arise out of such work, and plans and
specifications plus permits necessary for such work, requiring Tenant to perform
such work at times designated by Landlord. The work necessary to make any
alterations, improvements or additions to the Premises, whether prior to or
subsequent to the Commencement Date, shall be done at Tenant's expense to the
extent it exceeds the Construction Allowance (as defined in Paragraph 39 herein)
by employees of or contractors hired by Landlord except to the extent Landlord
gives its prior written consent to Tenant's hiring its own contractors, such
consent not to be unreasonably withheld. It is understood that Landlord's
consent to the hiring by Tenant of Tenant's own contractors may be withheld if
Landlord's permitting such hiring might reasonably be expected to adversely
affect other construction in the Building or might reasonably be expected to
result in an interruption of services provided to tenants of the Building.
Tenant shall promptly pay to Landlord or Tenant's contractors, as the case may
be, when due, the cost of all such work and of all decorating required by reason
thereof. Tenant shall also pay to Landlord a percentage of the cost of such work
(such percentage to be established on a uniform basis for the Office Section)
sufficient to reimburse Landlord for all overhead, general conditions, fees and
other costs and expenses actually incurred by Landlord and arising from
Landlord's involvement with such work. In connection with seeking Landlord's
approval, Tenant shall provide to Landlord plans and specifications regarding
proposed alterations, additions or improvements, as Landlord shall reasonably
require, and Tenant shall, in addition to all other expenses which Tenant is
obligated to pay to Landlord hereunder, pay to Landlord the expense reasonably
incurred by Landlord in connection with the review of such information. Upon
completion of such work Tenant shall deliver to Landlord, if payment is made
directly to contractors, evidence of payment, contractors' affidavits and full
and final waivers of all liens for labor, services or materials, all in form
satisfactory to Landlord. Tenant shall defend and hold Landlord, Landlord's
lessor, any mortgagee, the MTA (hereinafter defined), the Property and the
Building harmless from all costs, damages, liens and expenses related to such
work except for the gross negligence or willful misconduct of Landlord's
contractors or employees. All work done by Tenant or its contractors pursuant to
Paragraphs 9 or 10 shall be done in a first-class workmanlike manner using only
good grades of materials and shall comply with all insurance requirements and
all applicable laws and ordinances and rules and regulations of governmental
departments or agencies. Notwithstanding anything contained herein to the
contrary, Landlord shall be obligated to provide the Construction Allowance as
specified in Paragraph 39 herein.
B. All alterations, improvements and additions to the Premises,
whether temporary or permanent in character, made or paid for by Landlord or
Tenant, shall without compensation to Tenant become Landlord's property at the
termination of this Lease by lapse of time or otherwise and shall, unless
Landlord requests their removal (in which case Tenant shall remove the same as
provided in Paragraph 18), be relinquished to Landlord in good condition,
ordinary wear excepted.
Tenant may install, maintain, replace, remove or use any
communications or computer wires, cables and related devices (collectively the
"Lines") at the Property in or serving the Premises, provided: (a) Tenant shall
obtain Landlord's prior written consent, such consent not to be unreasonably
withheld, use an experienced and qualified contractor approved in writing by
Landlord, such approval not to be unreasonably withheld, and comply with all of
the other provisions of Paragraph 10A, (b) any such installation, maintenance,
replacement, removal or use shall not interfere with the use of any then
existing Lines at the Building, (c) an acceptable number of spare Lines and
space for additional Lines shall be maintained for existing and future occupants
of the Building, as determined "in Landlord's reasonable opinion, (d) if Tenant
at any time uses any equipment that may create an electromagnetic field
exceeding the normal insulation ratings or ordinary twisted pair riser cable or
cause radiation higher than normal background radiation, the Lines therefor
(including riser cables) shall be appropriately insulated to prevent such
excessive electromagnetic fields or radiation, (e) as a condition to permitting
the installation of new Lines, Landlord shall require that Tenant remove
existing Lines located in or serving the Premises, (f) Tenant's rights shall be
subject to the rights of any regulated telephone company, and (g) Tenant shall
pay all costs in connection therewith. Landlord reserves the right to require
that Tenant remove any Lines located in or serving the Premises which are
installed in violation of these provisions, or which are at any time in
violation of any laws, ordinances, rules or regulations or represent a dangerous
or potentially dangerous condition (but only if such Lines were installed by
Tenant), within three (3) days after written notice.
Landlord may (but shall not have the obligation to): (i) install new
Lines at the Building, (ii) create additional space for Lines at the Property,
and (iii) reasonably direct, monitor and/or supervise the installation,
maintenance, replacement and removal of, the allocation and periodic
reallocation of available space (if any) for, and the allocation of excess
capacity (if any) on, any Lines now or hereafter installed at the Building by
Landlord, Tenant or any other party (but Landlord shall have no right to monitor
or control the information transmitted through such Lines). Such rights shall
not be in limitation of other rights that may be available to Landlord by law or
otherwise. If Landlord exercises any such rights, Landlord may charge Tenant for
the costs reasonably attributable to Tenant, or may include those costs and all
other costs in Operating Expenses under Paragraph 5A(vi) (including without
limitation, costs for acquiring and installing Lines and risers to accommodate
new Lines and spare Lines, any associated computerized system and software for
maintaining records of Line connections, and the fees of any consulting
engineers and other experts); provided, any capital expenditures included in
Operating Expenses hereunder shall be amortized (together with reasonable
finance charges) as provided in Paragraph 5A(vi).
Tenant shall not, without the prior written consent of Landlord in
each instance, such consent not to be unreasonably withheld or delayed, grant to
any third party a security interest or lien in or on the Lines, and any such
security interest or lien granted without Landlord's written consent shall be
null and void. Except to the extent arising from the intentional or negligent
acts of Landlord or Landlord's agents or employees, Landlord shall have no
liability for damages arising from, and Landlord does not warrant that the
Tenant's use of any Lines will be free from the following (collectively called
"Line Problems"): (x) any eavesdropping or wire-tapping by unauthorized parties,
(y) any failure of any Lines to satisfy Tenant's requirements, or (z) any
shortages, failures, variations, interruptions, disconnections, loss or damage
caused by the installation, maintenance, replacement, use or removal of Lines by
or for other tenants or occupants at the Building, by any failure of the
environmental conditions or the power supply for the Building to conform to any
requirements for the Lines or any associated equipment, or any other problems
associated with any Lines by any other cause. Under no circumstances shall any
Line Problems be deemed an actual or constructive eviction of Tenant, render
Landlord liable to Tenant for abatement of Rent, or relieve Tenant from
performance of Tenant's obligations under this Lease. Landlord in no event shall
be liable for damages by reason of loss of profits, business interruption or
other consequential damage arising from any Line Problems.
11. COVENANT AGAINST LIENS.
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Tenant has no authority or power to cause or permit any lien or
encumbrance of any kind whatsoever, whether created by act of Tenant, operation
of law or otherwise, to attach to or be placed upon the Property, the Building
or the Premises, or to affect any estate or interest of Landlord, Landlord's
lessor, any mortgagee or the MTA. Tenant covenants and agrees not to suffer or
permit any lien of mechanics, materialmen or others to be placed against the
Property, the Building or the Premises, or to affect any estate or interest of
Landlord, Landlord's lessor, any mortgagee or the MTA, with respect to work or
services claimed to have been performed for or materials claimed to have been
furnished to Tenant or the Premises, and, in case of any such lien attaching or
notice of any lien, or claim therefor being asserted, Tenant covenants and
agrees to cause same to be immediately released and removed of record. In the
event that such lien is not immediately released and removed, Landlord, at its
sole option, may take all action necessary to release and remove such lien
(without any duty to investigate the validity thereof) and Tenant shall promptly
upon notice reimburse Landlord for all sums, costs and expenses (including
reasonable attorneys' fees) incurred by Landlord in connection therewith.
12. INSURANCE.
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A. Waiver of Subrogation.
Landlord and Tenant each hereby waive any and every claim for recovery
from the other for any and all loss of or damage to the Building or the Premises
or to the contents thereof, which loss or damage is covered by valid and
collectible physical damage insurance policies, to the extent that such loss or
damage is recoverable under said insurance policies. Inasmuch as this mutual
waiver will preclude the assignment of any such claim by subrogation (or
otherwise) to an insurance company (or any other person), Landlord and Tenant
each agree to give to each insurance company which has issued, or in the future
may issue, to it policies of physical damage insurance, written notice of the
terms of this mutual waiver, and to have said insurance policies properly
endorsed, if necessary, to prevent the invalidation of said insurance coverage
by reason of said waiver. Tenant's waiver of subrogation as hereinabove set
forth shall also run to the benefit of and extend to Landlord's lessor and the
MTA.
B. Coverage.
Tenant shall purchase and maintain insurance during the entire Term
for the benefit of Tenant, Landlord, Landlord's lessor, any mortgagee and the
MTA (as their respective interests may appear) with terms, coverages and in
companies satisfactory to Landlord, and with such increases in limits as
Landlord may from time to time request, but initially Tenant shall maintain the
following coverages in the following amounts:
(i) Commercial General Liability Insurance covering Tenant,
Landlord, Landlord's lessor, the MTA and Landlord's management agent
for claims of bodily injury, personal injury and property damage
arising out of Tenant's operations, assumed liabilities or use of the
Premises, for limits of liability not less than:
Bodily Injury and Property $2,000,000 each occurrence
Damage Liability $2,000,000 annual aggregate
Personal Injury Liability $2,000,000 annual aggregate
0% Insured's participation
(ii) Comprehensive Automobile Insurance covering all owned,
nonowned and hired automobiles of Tenant including the loading and
unloading of any automobile with limits of liability not less than:
Bodily Injury and Property $2,000,000 each person
Damage Liability $2,000,000 each accident
(iii) Physical Damage Insurance covering all additions,
improvements and alterations to the Premises which are beyond the
building standard tenant improvements provided by Landlord and all
office furniture, trade fixtures, office equipment, merchandise and all
other items of Tenant's property on the Premises. Such insurance shall
be written on an "all risks" of physical loss or damage basis, for the
full replacement cost value of the covered items and in amounts that
meet any coinsurance clauses of the policies of insurance.
Tenant shall, prior to the commencement of the Term, furnish to Landlord
certificates evidencing such coverage, on XXXXX Form 27, which certificates
shall state that such insurance coverage may not be changed or canceled without
at least thirty (30) days' prior written notice to Landlord and Tenant and shall
name Landlord and Landlord's management agent as additional insureds.
C. Avoid Action Increasing Rates.
Tenant shall comply with all applicable laws and ordinances, all
orders and decrees of court and all requirements of other governmental
authorities having jurisdiction over the Building and of the applicable rating
bureau, and shall not, directly or indirectly, make any use of the Premises in
violation of the Use specified in Article I which may thereby be prohibited or
be dangerous to person or property or which may jeopardize any insurance
coverage or may increase the cost of insurance or require additional insurance
coverage. If, by reason of the failure of Tenant to comply with the provisions
of this Paragraph 12C after notice from Landlord and a period of two (2) days
after such notice is given to Tenant to cure such violation, (i) any insurance
coverage is jeopardized Landlord may, in addition to all other remedies which
may be available to Landlord, terminate this Lease or (ii) insurance premiums
are increased, Landlord shall have the option either to terminate this Lease or
to require Tenant to make immediate payment of the increased insurance premium.
13. FIRE OR CASUALTY.
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A. Paragraph 9 hereof notwithstanding, if the Premises or the access
thereto shall be damaged by fire or other casualty and if such damage does not
render all or a material portion of the Premises untenantable and if the
Premises, the Office Section or the Building are not substantially damaged (as
hereinafter defined), then Landlord shall, subject to building and zoning laws
then applicable, repair and restore the same with reasonable promptness, subject
to reasonable delays for insurance adjustments and delays caused by matters
beyond Landlord's reasonable control, but shall not be obligated to expend
therefor an amount in excess of the proceeds of insurance recovered with respect
thereto. If all or a material portion of the Premises are rendered untenantable
by fire or other casualty, or if the Premises, the Office Section or the
Building are substantially damaged by fire or other casualty (the term
"substantially damaged" meaning damage of such a character that the same cannot,
in ordinary course, reasonably be expected to be repaired within ninety (90)
days from the time that repair work would commence), then, in either such case,
Landlord shall have the right to terminate this Lease by giving notice of
Landlord's election so to do not later than one hundred twenty (120) days after
Landlord has ascertained all information required by Landlord to determine
whether or not to terminate this Lease, including without limitation the amount
of insurance proceeds which are available to Landlord for restoration. In the
event Landlord gives such termination notice, this Lease shall terminate (with
appropriate proration(s) of Rent being made for Tenant's possession of the
tenantable portion of the Premises after the date of such damage) as of the date
specified in such notice (but in no event sooner than thirty (30) days after the
date of such notice) with the same force and effect as if the date specified
were the date originally established as the expiration date hereof Landlord
shall have no liability to Tenant, and Tenant shall not be entitled to terminate
this Lease by virtue of any delays in completion of such repairs and
restoration. Further, in the event this Lease is not terminated, Landlord shall
not be obligated to restore any portion of the Office Section or the Building
outside of the Premises which is not necessary for reasonable access to and
egress from the Premises. Except as otherwise provided below, Rent shall xxxxx
on those portions of the Premises as are, from time to time, untenantable as a
result of such damage.
B. In the event the Premises, the Office Section or the Building is
damaged by fire or other casualty resulting from the act or neglect of Tenant,
its agents, contractors, employees or invitees and if this Lease shall not be
terminated by Landlord as a result of such damage, Tenant shall not be released
from any of its obligations hereunder including, without limitation, its duty to
pay Rent, and Rent shall not be abated.
C. Notwithstanding anything to the contrary herein set forth, Landlord
shall have no duty pursuant to this Paragraph 13 to repair or restore any
portion of the alterations, additions or improvements in the Premises or the
decorations thereto except to the extent that such alterations, additions,
improvements and decorations were provided by Landlord, at Landlord's cost, at
the, beginning of the Term. If Tenant desires any other or additional repairs or
restoration and if Landlord consents thereto, the same shall be done at Tenant's
sole cost and expense subject to all of the provisions of Paragraph 9 hereof.
Tenant acknowledges that Landlord shall be entitled to the full proceeds of any
insurance coverage, whether carried by Landlord or Tenant, for damage to
alterations, additions, improvements or decorations provided by Landlord either
directly or through an allowance to Tenant.
14. WAIVER OF CLAIMS - INDEMNIFICATION.
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To the extent not prohibited by law, Landlord, its partners, its
managing agent, Landlord's lessor, any mortgagee, the MTA and their respective
officers, agents, servants and employees shall not be liable for any damage
either to person or property or resulting from the loss of use thereof sustained
by Tenant or by other persons due to the Building, or any part thereof or any
appurtenances thereof becoming out of repair, or due to the happening of any
accident or event in or about the Office Section, the Premises or the Building,
or due to any act or neglect of any tenant or occupant of the Office Section,
the Building or of any other person or entity. This provision shall apply
particularly, but not exclusively, to damage caused by gas, electricity, snow,
frost, steam, sewage, sewer gas or odors, fire, water, noise, vibration, fumes
or by the bursting or leaking of pipes, faucets, sprinklers, plumbing fixtures
and windows, and shall apply whether the damage was due to any of the causes
specifically enumerated above or to some other cause of an entirely different
kind. Tenant further agrees that all personal property upon the Premises, or
upon loading docks, receiving and holding areas, or freight elevators of the
Building shall be at the risk of Tenant only, and that Landlord shall not be
liable for any loss or damage thereto or theft thereof. Without limitation of
any other provisions hereof, Tenant agrees to defend, protect, indemnify and
save harmless Landlord, Landlord's lessor, any mortgagee and the MTA from and
against all liability to third parties which arose (or which were claimed to
have arisen) within or without the Premises or out of acts or omissions of
Tenant and its servants, agents, employees, contractors, suppliers, workers and
invitees. Without limitation of any other provisions hereof, Landlord agrees to
defend, protect, indemnify and save harmless Tenant from and against all
liability to third parties which arose (or which were claimed to have arisen)
within or without the Premises or out of acts or omissions of Landlord and its
servants, agents, employees, contractors, suppliers and workers.
15. NONWAIVER.
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No waiver of any provision of this Lease shall be implied by any
failure of Landlord to enforce any remedy on account of the violation of such
provision, even if such violation be continued or repeated subsequently, and no
express waiver shall affect any provision other than the one specified in such
waiver and that one only for the time and in the manner specifically stated. No
receipt of monies by Landlord from Tenant after the termination of this Lease
shall in any way alter the length of the Term or of Tenant's right of possession
hereunder or after the giving of any notice shall reinstate, continue or extend
the Term or affect any notice given Tenant prior to the receipt of such monies,
it being agreed that after the service of notice or the commencement of a suit
or after final judgment for possession of the Premises, Landlord may receive and
collect any Rent due, and the payment of said Rent shall not waive or affect
said notice, suit or judgment.
16. CONDEMNATION.
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If the Property, the Building or any portion thereof shall be taken or
condemned by any competent authority for any public or quasi-public use or
purpose (a "taking"), or if the configuration of any roadway, street, alley, or
railroad line adjacent to or beneath the Building is changed by any competent
authority and such taking or change in configuration makes it necessary or
desirable to remodel or reconstruct the Building or any part thereof, Landlord
shall have the right, exercisable at its sole discretion, to cancel this Lease
upon not less than ninety (90) days' notice prior to the date of cancellation
designated in the notice. No money or other consideration shall be payable by
Landlord to Tenant for the right of cancellation and Tenant shall have no right
to share in the condemnation award or in any judgment for damages caused by such
taking or change in configuration. Tenant shall be entitled to file a claim for
its trade fixtures, all of which it may remove.
17. ASSIGNMENT AND SUBLETTING.
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A. Tenant shall not, without the prior written consent of Landlord
(which consent shall not be unreasonably withheld or delayed) (i) assign, convey
or mortgage this Lease or any interest hereunder; (ii) permit to occur or exist
any assignment of this Lease, or any lien upon Tenant's interest, voluntarily or
by operation of law; (iii) sublet the Premises or any part thereof, or (iv)
permit the use of the Premises by any parties other than Tenant and its
employees. Any such action on the part of Tenant shall be void and of no effect.
Notwithstanding the foregoing, the sale of all or substantially all of Tenant's
assets, or the merger or consolidation of Tenant with a person controlling,
controlled by or under common control with Tenant, shall not be deemed an
assignment, conveyance, sublet or mortgage of this Lease. Landlord's consent to
any assignment, subletting or transfer or Landlord's election to accept any
assignee, subtenant or transferee as the tenant hereunder and to collect rent
from such assignee, subtenant or transferee shall not release Tenant or any
subsequent tenant from any covenant or obligation under this Lease. Landlord's
consent to any assignment, subletting or transfer shall not constitute a waiver
of Landlord's right to withhold its consent to any future assignment,
subletting, or transfer. If Tenant is a corporation and if at any time during
the Term the person or persons who own a majority of its voting shares at the
time of the execution of this Lease cease to own a majority of such shares,
Tenant shall so notify Landlord, and Landlord may terminate this Lease by notice
to Tenant given not later than ninety (90) days thereafter. This provision shall
not apply whenever Tenant is a corporation the outstanding voting stock of which
is listed on a recognized security exchange. For the purposes of this provision,
stock ownership shall be determined in accordance with Section 544 of the
Internal Revenue Code of 1986, as amended through December 31, 1989, and the
regulations thereunder, and the term "voting stock" shall refer to shares of
stock regularly entitled to vote for the election of directors of the
corporation.
B. Without limitation of the rights of Landlord hereunder in respect
thereto, if there is any assignment of this Lease by Tenant or a subletting of
the whole of the Premises by Tenant at a rent which, in either case, exceeds the
rent payable hereunder by Tenant, or if there is a subletting of a portion of
the Premises by Tenant at a rent in excess of the subleased portion's pro rata
share of the rent payable hereunder by Tenant, then Tenant shall pay to
Landlord, as additional rent, forthwith upon Tenant's receipt of each
installment of any such excess rent, fifty percent (50%) of any such excess rent
(excluding any monies received from the sale of Tenant's fixtures, equipment or
personal property). The provisions of this paragraph shall apply to each and
every assignment of the Lease and each and every subletting of all or a portion
of the Premises, whether to a subsidiary or controlling corporation or any other
person, firm or entity, in each case on the terms and conditions set forth
herein. Each request by Tenant for permission to assign this Lease or to sublet
the whole or any part of the Premises shall be accompanied by a warranty by
Tenant as to the amount of rent to be paid to Tenant by the proposed assignee or
sublessee. Landlord or its authorized representatives shall have the right at
all reasonable times, upon prior written notice to Tenant, to audit the books,
records and papers of Tenant relating to any consideration received in
connection with such an assignment or subletting, and shall have the right to
make reasonable copies thereof which shall be kept confidential. If the excess
rent being paid shall be found understated, Tenant shall within thirty (30) days
after demand pay the deficiency, and Landlord's cost of such audit and if
understated by more than five percent (5%), Landlord shall have the right to
terminate this Lease upon thirty (30) days' notice. For the purposes of this
Paragraph 17B, the term "rent" shall mean all Base Rent, Additional Rent or
other payments and/or consideration payable by one party to another related to
the use and occupancy of all or a portion of the Premises.
18. SURRENDER OF POSSESSION.
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Upon the expiration of the Term or upon the termination of Tenant's
right of possession to all or a portion of the Premises, whether by lapse of
time or at the option of Landlord as herein provided, Tenant shall forthwith
quietly and peaceably surrender the Premises or portion thereof to Landlord in
good order, repair and condition, ordinary wear and casualty excepted. Any
interest of Tenant in the alterations, improvements and additions to the
Premises made or paid for by Landlord or Tenant shall, without compensation to
Tenant, become, at Landlord's option, Landlord's property at the termination of
this Lease by lapse of time or otherwise and if such option is exercised such
alterations, improvements and additions shall be relinquished to Landlord in
good condition, ordinary wear excepted. Within seven (7) days prior to the
termination of the Term or of Tenant's right of possession Tenant shall remove
office furniture, trade fixtures, office equipment and all other items of
Tenant's property on the Premises. Tenant shall pay to Landlord upon demand the
reasonable cost of repairing any damage to the Premises and to the Building
caused by any removal required hereunder. If Tenant shall fail or refuse to
remove any such property from the Premises, Tenant shall be conclusively
presumed to have abandoned the same, and title thereto shall thereupon pass to
Landlord without any cost either by set-off, credit, allowance or otherwise, and
Landlord may at its option accept the title to such property or, at Tenant's
expense, may (i) remove the same or any part in any manner that Landlord shall
choose, repairing any damage to the Premises caused by such removal, and (ii)
store, destroy or otherwise dispose of the same without incurring liability to
Tenant or any other person.
19. HOLDING OVER.
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In addition to performing all of Tenant's other obligations hereunder,
Tenant shall pay to Landlord an amount as Rent equal to the greater of (i) the
monthly market rental rate for a term of not less than one (1) year for similar
premises in the Building without regard to concessions such as tenant
improvement allowance and free rent, if any, or (ii) the sum of one hundred
fifty percent (I 5 0%) of one-twelfth the Base Rent and one hundred fifty
percent (150%) of one-twelfth the Additional Rent paid by Tenant during the
previous Calendar Year herein provided, such amount to be paid monthly during
each month or portion thereof for which Tenant shall retain possession of the
Premises or any part thereof after the termination of the Term or of Tenant's
right of possession, whether by lapse of time or otherwise, and also shall pay
all damages sustained by Landlord, whether direct or consequential, on account
thereof. At the option of Landlord, expressed in a written notice to Tenant and
not otherwise, such holding over shall constitute a renewal of this Lease for a
period of one year at such Base Rent and Additional Rent as would be applicable
for such year, and if Landlord does not so notify Tenant, such holding over
shall constitute the Tenant a tenant-at-will from month to month. The provisions
of this Paragraph 19 shall not be deemed to limit or constitute a waiver of any
other rights or remedies of Landlord provided herein or at law.
20. ESTOPPEL CERTIFICATE.
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Tenant agrees that, from time to time upon not less than ten (10)
days' prior request by Landlord, Landlord's lessor or any mortgagee, Tenant or
Tenant's duly authorized representative having knowledge of the following facts
will deliver to Landlord a statement in writing certifying (i) that this Lease
is unmodified and in full force and effect (or if there have been modifications,
a description of such modifications and that the Lease as modified is in full
force and effect); (ii) the dates to which Rent and other charges have been
paid; (iii) to the best of Tenant's knowledge, Landlord is not in default under
any provision of this Lease, or, if in default, the nature thereof in detail;
(iv) that the Premises have been delivered to Tenant by Landlord and accepted by
Tenant; (v) that there are no proceedings pending against Tenant which have been
adversely decided and which would affect Tenant's obligations under this Lease;
(vi) that Tenant has not made a claim against Landlord which has not been
resolved or satisfied; and (vii) such further matters as may be reasonably
requested by Landlord, it being intended that any such statement may be relied
upon by any prospective assignee of Landlord, any mortgagee or prospective
mortgagee of the Building, any prospective assignee of any such mortgagee, or
any prospective and/or subsequent purchaser or transferee of all or a part of
Landlord's interest in the Property, the Office Section or the Building, or any
other person having an interest therein. Tenant shall execute and deliver
whatever instruments may be required for such purposes, and in the event Tenant
fails so to do within ten (10) days after demand in writing, Tenant shall be
considered in default under this Lease.
21. SUBORDINATION.
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This Lease and all rights of Tenant hereunder are subject and
subordinate to any mortgage or mortgages, blanket or otherwise, made by Landlord
and which do now or may hereafter affect the Property or the Building and to any
and all renewals, modifications, consolidations, replacements and extensions
thereof, and to any ground or other lease, or similar instrument now or
hereafter placed against the Building. It is the intention of the parties that
this provision be self-operative and that no further instrument shall be
required to effect such subordination of this Lease. Tenant shall, however, upon
demand at any time or times execute, acknowledge and deliver to Landlord without
expense to Landlord, any and all instruments that may be necessary or proper to
subordinate this Lease and all rights of Tenant hereunder to any such mortgage
or mortgages or to confirm or evidence such subordination. Tenant covenants and
agrees, in the event any proceedings are brought for the foreclosure of any such
mortgage, to attorn, without any deductions or set-offs whatsoever, to the
purchaser upon any such foreclosure sale if so requested to do by such
purchaser, and to recognize such purchaser as the Landlord under this Lease.
Tenant agrees to execute and deliver at any time and from time-to-time, upon the
request of Landlord or of any holder of such mortgage or of such purchaser, any
instrument which, in the sole judgment of such requesting party, may be
necessary or appropriate in any such foreclosure proceeding or otherwise to
evidence such attornment. Tenant and Landlord further agree that if so requested
by any mortgagee of Landlord, this Lease shall be made superior to any such
mortgage and that they will execute such documents as may be required by such
mortgagee to effect the superiority of this Lease to such mortgage.
22. CERTAIN RIGHTS RESERVED BY LANDLORD.
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Landlord shall have the following rights (but not obligations), each
of which Landlord may exercise without notice to Tenant (except with respect to
(i) which shall require no less than thirty (30) days prior written notice) and
without liability to Tenant for damage or injury to property, person or business
on account of the exercise thereof, and the exercise of any such rights shall
not be deemed to constitute an eviction or disturbance of Tenant's use or
possession of the Premises and shall not give rise to any claim for set-off or
abatement of Rent or any other claim:
(i) To change the Building's name or street address.
(ii) To install, affix and maintain any and all signs on the
exterior and on the interior of the Building.
(iii) To decorate or to make repairs, alterations,
additions, or improvements, whether structural or otherwise, in and
about the Building, or any part thereof, and for such purposes to
enter upon the Premises, and during the continuance of any of said
work, to temporarily close doors, entryways, public space and
corridors in the Building and to interrupt or temporarily suspend
services or use of facilities, all without affecting any of Tenant's
obligations hereunder, so long as the Premises are reasonably
accessible and usable, and with the use of reasonable efforts not to
interfere with Tenant's business.
(iv) To furnish door keys for the entry door(s) in the
Premises at the commencement of this Lease and to retain at all times,
and to use in appropriate instances, keys to all doors within and into
the Premises. Tenant agrees to purchase only from Landlord additional
duplicate keys as required, to change no locks, and not to affix locks
on doors without the prior written consent of Landlord not to be
unreasonably withheld. Notwithstanding the provisions for Landlord's
access to Premises, Tenant relieves and releases Landlord of all
responsibility arising out of theft, robbery, pilferage and personal
assault. Upon the expiration of the Term or of Tenant's right of
possession, Tenant shall return all keys to Landlord and shall
disclose to Landlord the combination of any safes, cabinets or vaults
left in the Premises.
(v) To designate and approve all window coverings used in
the Building.
(vi) To approve the weight, size and location of safes,
vaults and other heavy equipment and articles in and about the
Premises and the Building so as not to exceed the legal live load
limit of seventy (70) pounds per square foot, as designated by the
structural engineers for the Building, and to require all such items
and furniture and similar items to be moved into or out of the
Building and Premises only at such times and in such manner as
Landlord shall direct in writing. Tenant shall not install or operate
machinery or any mechanical devices of a nature not directly related
to Tenant's ordinary use of the Premises without the prior written
consent of Landlord. Movements of Tenant's property into or out of the
Building or the Premises and within the Building are entirely at the
risk and responsibility of Tenant, and Landlord reserves the right to
require permits before allowing any property to be moved into or out
of the Building or the Premises.
(vii) To establish security policies and other controls for
the purpose of regulating all property and packages, both personal and
otherwise, to be moved into or out of the Building and Premises and
all persons using the Building both during and after normal office
hours.
(viii) To regulate delivery and service of supplies and the
usage of the loading docks, receiving areas and freight elevators.
(ix) To show the Premises to prospective tenants during the
last six (6) months of the Term at reasonable times upon reasonable
notice and, if vacated or abandoned, to show the Premises at any time,
and to prepare the Premises for reoccupancy.
(x) To erect, use and maintain pipes, ducts, wiring and
conduits, and appurtenances thereto, in and through the Premises at
reasonable locations.
(xi) To enter the Premises at any reasonable time to inspect
the Premises upon reasonable prior notice as set forth herein, except
in the case of an emergency.
(xii) To grant to any person or to reserve unto itself the
exclusive right to conduct any business or render any service in the
Building.
23. RULES AND REGULATIONS.
--- ----------------------
Tenant agrees to observe the rules and regulations for the Building
attached hereto as Exhibit C and made a part hereof. Landlord shall have the
right from time to time to prescribe additional rules and regulations which, in
its reasonable judgment, may be desirable for the use, entry, operation and
management of the Premises, the Office Section and the Building, each of which
rules and regulations and any amendments thereto shall become a part of this
Lease. Tenant shall comply with all such rules and regulations; provided,
however, that such rules and regulations shall not contradict or, abrogate any
right or privilege herein expressly granted to Tenant. The rules and regulations
shall be enforced by Landlord in a non-discriminatory manner.
24. LANDLORD'S REMEDIES.
--- --------------------
If default shall be made in the payment of the Rent or any installment
thereof or in the payment of any other sum required to be paid by Tenant under
this Lease or under the terms of any other agreement between Landlord and Tenant
and such default shall continue for five (5) days after written notice to
Tenant, or if default shall be made in the observance or performance of any of
the other covenants or conditions in this Lease which Tenant is required to
observe and perform and such default shall continue for ten (10) days after
written notice to Tenant (provided, however, if Tenant has commenced curing such
default and is diligently proceeding with such cure, Tenant shall have a period
of up to thirty (30) days after written notice to Tenant to cure such default),
or if a default involves a hazardous condition and is not cured by Tenant
immediately upon written notice to Tenant, or if the interest of Tenant in this
Lease shall be levied on under execution or other legal process, or if any
voluntary petition in bankruptcy or for corporate re-organization (but not
including the merger or consolidation of Tenant with or into a person
controlling, controlled by or under common control with Tenant) or any similar
relief shall be filed by Tenant, or if any involuntary petition in bankruptcy
shall be filed against Tenant under any federal or state bankruptcy or
insolvency act and shall not have been dismissed within sixty (60) days from the
filing thereof, or if a receiver shall be appointed for Tenant or any of the
property of Tenant by any court and such receiver shall not have been dismissed
within forty-five (45) days from the date of his appointment, or if Tenant shall
make an assignment for the benefit of creditors, or if Tenant shall admit in
writing Tenant's inability to meet Tenant's debts as they mature, or if Tenant
shall cease to occupy the Premises for a period of twenty (20) consecutive days
during the Term, then Landlord may treat the occurrence of any one or more of
the foregoing events as a breach of this Lease, and thereupon at its option may,
after the expiration of all notice and grace periods set forth herein, if any,
without any further notice or any demand of any kind to Tenant or any other
person, have any one or more of the following described remedies in addition to
all other rights and remedies provided at law or in equity or elsewhere herein:
(i) Landlord may terminate this Lease and the Term created
hereby and shall give Tenant written notice of Landlord's election to
do so and the effective date thereof (the "Effective Date"), in which
event Landlord may forthwith repossess the Premises and shall be
entitled to recover, forthwith as liquidated damages, in addition to
any other sums or damages for which Tenant may be liable to Landlord,
a sum of money equal to the present value (such present value to be
computed on the basis of a per annum discount rate equal to 200 basis
points below the effective annual yield on U.S. Treasury obligations
which could be purchased on the business day next succeeding the
Effective Date and mature closest to the Termination Date) of the Rent
provided to be paid by Tenant for the balance of the Term over the
present value of the fair market rental value of the Premises, after
deduction from the present value of such fair market rental value of
all anticipated expenses of reletting. Should the present value of the
fair market rental value of the Premises, after deduction of all
anticipated expenses of reletting, for the balance of the Term exceed
the present value of the Rent provided to be paid by Tenant for the
balance of the Term, Landlord shall have no obligation to pay to
Tenant the excess or any part thereof or to credit such excess or any
part thereof against any other sums or damages for which Tenant may be
liable to Landlord.
(ii) Landlord may terminate this Lease and the Term as
provided in (i) above and forthwith repossess the Premises and shall
be entitled to recover forthwith, in addition to any other sums or
damages for which Tenant may be liable to Landlord, a sum of money
equal to amounts then due and the present value (computed as
aforesaid) of all or a portion of the Rent and other sums to become
due under this Lease for all or a part of the period from the
Effective Date to the Termination Date. Furthermore, Landlord shall
have the right from time to time to recover from Tenant, and Tenant
shall remain liable for all Rent which would have been due, other than
Rent accelerated and paid pursuant to the foregoing sentence, and any
other sums thereafter accruing as they become due under this Lease
during the period from the Effective Date to the Termination Date. In
any such case, Landlord may (but shall be under no obligation to,
except as required by law) relet the Premises or any part thereof for
the account of Tenant, for such rent, from time to time (which may be
for a term extending beyond the Term of this Lease), and upon such
terms as Landlord in Landlord's sole discretion shall determine, and
Landlord shall not be required to accept any tenant offered by Tenant
or to observe any instructions given by Tenant relative to such
reletting. Also, in any such case, Landlord may change the locks or
other entry devices of the Premises and make repairs, alterations and
additions in or to the Premises and redecorate same to the extent
deemed by Landlord necessary or desirable, and Tenant shall upon
written demand pay the cost thereof together with Landlord's expenses
of reletting, including without limitation, brokerage commissions
payable to Landlord's agent or to others. Landlord may collect the
rents from any such reletting and apply the same to the payment of
expenses of reentry, redecoration, repair and alterations and the
reasonable expenses of reletting and the excess or residue remaining
to the payment of Rent and other sums in this Lease provided to be
paid by Tenant and not theretofore paid by acceleration or otherwise,
and any such excess or residue shall operate only as an offsetting
credit against the amount of Rent and other sums then due and owing
or, at Landlord's option, shall be refunded to Tenant to the extent
paid as a result of acceleration or shall be applied as an offsetting
credit against Rent and other sums thereafter becoming due and payable
hereunder; provided that in no event shall Tenant be entitled to a
credit on its indebtedness to Landlord or refunds of amounts
accelerated in excess of the aggregate of the amount paid as a result
of acceleration and the amount would have been payable by Tenant for
the period for which the credit to Tenant is being determined, had no
default occurred. No such reentry, repossession, repairs, alterations,
additions or relenting shall operate to release Tenant in whole or in
part from any of Tenant's obligations hereunder, and Landlord may, at
any time and from time to time, xxx and recover judgment for any
deficiencies from time to time remaining after the application from
time to time of the proceeds of any such reletting.
(iii) Landlord, without thereby waiving such default, may
cure the same for the account and at the expense of Tenant, without
notice in a case of emergency, as determined by Landlord in its sole
discretion, or in case of correction of a dangerous or hazardous
condition, and in any other case if such default continues after ten
(10) days from the date of the giving by Landlord to Tenant of written
notice of such default or of intention to cure. Bills for any expense
incurred by Landlord in connection with any such performance by
Landlord shall be for the account of Tenant, and shall be due and
payable in accordance with the terms of said bills, and if not paid
when due, the amounts thereof shall become immediately due and payable
as Additional Rent under this Lease.
25. EXPENSES OF ENFORCEMENT.
--- ------------------------
Tenant shall pay upon demand all Landlord's reasonable and customary
costs, charges and expenses including the fees and out-of-pocket expenses of
counsel, agents and others retained by Landlord incurred in enforcing Tenant's
obligations hereunder or incurred by Landlord in any litigation, negotiation or
transaction in which Tenant causes Landlord without Landlord's fault to become
involved or concerned.
26. COVENANT OF QUIET ENJOYMENTMENT.
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Landlord covenants that Tenant, on paying the Rent, charges for
Services and other payments herein reserved and on keeping, observing and
performing all the other terms, covenants, conditions, provisions and agreements
herein contained on the part of Tenant to be kept, observed and performed shall,
during the Term, peaceably and quietly have, hold and enjoy the Premises subject
to the terms, covenants, conditions, provision and agreements hereof, without
hindrance or ejection by any persons lawfully claiming by, through or under
Landlord, the Foregoing covenant of quiet enjoyment being in lieu of any other
covenant, expressed or implied.
27. SECURITY DEPOSIT
--- ----------------
Tenant hereby deposits with Landlord the sum of the Security Deposit
specified in Paragraph. 1 hereof (hereinafter referred to as "Collateral"), as
security for the prompt, full and faithful performance by Tenant of each and
every provision of this Lease and of all obligations of Tenant hereunder.
Landlord agrees to deposit the Collateral in an interest bearing account.
A. If Tenant fails to perform any of its obligations hereunder,
Landlord may use, apply or retain the whole or any part of the Collateral for
the payment of (i) any Rent or other sums of money which Tenant may not have
paid when due, (ii) any sum expended by Landlord on Tenant's behalf in
accordance with the provisions of this Lease, and/or (iii) any sum which
Landlord may expend or be required to expend by reason of Tenant's default,
including, without limitation, any damage or deficiency in or from the relenting
of the Premises as provided in Paragraph 24. The use, application or retention
of p the Collateral, or any portion thereof, by Landlord shall not prevent
Landlord from exercising any other right or remedy provided by this Lease or by
law (it being intended that Landlord shall not first be required to proceed
against the Collateral) and shall not operate as a limitation on any recovery to
which Landlord may otherwise be entitled. If any portion of the Collateral is
used, applied or retained by Landlord for the purposes set forth above, Tenant
agrees, within ten (10) days after written demand therefor is made by Landlord,
to deposit cash with Landlord in an amount sufficient to restore the Collateral
to its original amount.
B. If Tenant shall fully and faithfully comply with all of the
provisions of this Lease, the Collateral, or any balance thereof, shall be
returned to Tenant, with interest accrued on the Collateral, or any balance
thereof held by Landlord from time to time, after the expiration of the Term or
upon any later date after which Tenant has vacated the Premises. In the absence
of evidence satisfactory to Landlord of my permitted assignment of the right to
receive the Collateral, or of the remaining balance, thereof, Landlord may
return the same to the named Tenant herein regardless of one or more assignments
of Tenant's interest in this Lease or the Collateral. In such event, upon. the
return of the Collateral, or the remaining balance thereof to the named Tenant,
Landlord shall be completely relieved of liability under this Paragraph 27 or
otherwise with respect to the Collateral.
C. Tenant acknowledges that Landlord has the right to transfer or
mortgage its interest in the Premises and the Building and in this Lease and
Tenant agrees that in the event of any such transfer or mortgage, Landlord shall
have the right to transfer or assign the Collateral to the transferee or
mortgagee. Upon such transfer or assignment, Landlord shall thereby be released
by Tenant from all liability or obligation for the return of such Collateral and
Tenant shall look solely to such transferee or mortgagee for the return of the
Collateral, such transferee or mortgagee having no greater obligations in
respect of the Collateral than the Landlord had.
28. REAL ESTATE BROKER.
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The Tenant represents that Tenant has dealt with (and only with) the
Broker specified in Paragraph I hereof as broker in connection with this Lease,
and that insofar as Tenant knows, no other broker negotiated this Lease or is
entitled to any commission in connection therewith. Tenant agrees to indemnify,
defend and hold harmless Landlord its employees and agents from and against any
claims made by any broker or finder other than the Broker named above for a
commission or fee in connection with this Lease.
The Landlord represents that Landlord has dealt with (and only with)
the Broker specified in Paragraph I hereof as broker in connection with this
Lease, and that insofar as Landlord knows, no other broker negotiated this Lease
or is entitled to any commission in connection therewith. Landlord agrees to
indemnify, defend and hold harmless Tenant its employees and agents from and
against any claims made by any broker or finder other than the Broker named
above for a commission or fee in connection with this Lease.
29. UNDERLYING LEASES.
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Landlord is the lessee of the air rights premises within which the
Building is constructed pursuant to that certain Sublease (the "Sublease") dated
September 1, 1982 by and between a predecessor of Urban Investment and
Development Co. ("Urban"), as lessor. Urban is the lessee of said air rights
premises and other adjacent air rights premises which collectively are referred
to as Xxxxxx Place, pursuant to that certain Amended and Restated Lease (the
"Underlying Lease") dated January 31, 1980 by and between Urban and the
Massachusetts Turnpike Authority ("MTA"), as lessor.
Landlord hereby gives notice to Tenant that it supports the
Affirmative Action and Resident Preference goals set forth on Exhibit G attached
hereto, and encourages Tenant, but Tenant is not obligated, to pursue such goals
in Tenant's own employment practices. In connection with hiring to fill
permanent jobs at the Premises, Tenant shall not discriminate against any
employee or applicant for employment because of race, color, religious creed,
national origin, age or sex. Tenant shall comply to the extent applicable, with
Title VII of the U.S. Civil Rights Act and M.G.L. c.15IB with respect to
employment at the Premises.
30. NOTICE TO MORTGAGEE AND GROUND LESSOR.
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After receiving notice from any person, firm or other entity that it
holds a mortgage which includes the Premises, the Building or the Office Section
as part of the mortgaged premises, or that it is the ground lessor under a
ground lease (which term shall include the Underlying Lease and the Sublease)
with Landlord, as ground lessee, which includes the Premises, the Building or
the Office Section as part of the demised premises, no notice from Tenant to
Landlord shall be effective unless and until a copy of the same is given to such
holder or ground lessor, and the curing of any of Landlord's defaults by such
holder or ground lessor shall be treated as performance by Landlord. Such holder
or ground lessor shall be given such reasonable time as may be necessary to
effect such cure or to foreclose the mortgage or terminate the ground lease, as
the case may be. For the purposes of Paragraph 21, this Xxxxxxxxx 00, Xxxxxxxxx
31 and Paragraph 34, the term "mortgage" includes a mortgage on a leasehold
interest of Landlord (but not one on Tenant's leasehold interest).
31. ASSIGNMENT OF RENTS.
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With reference to any assignment by Landlord of Landlord's interest in
this Lease, or the rents payable hereunder, conditional in nature or otherwise,
which assignment is made to the holder of a mortgage or ground lease (which term
shall include the Underlying Lease and the Sublease) on property which includes
the Premises, the Building or the Office Section, Tenant agrees:
(i) that the execution thereof by Landlord, and the
acceptance thereof by the holder of such mortgage, or the ground
lessor, shall never be treated as an assumption by such holder or
ground lessor of any of the obligations of Landlord hereunder, unless
such holder, or ground lessor, shall, by notice sent to Tenant,
specifically otherwise elect; and
(ii) that, except as aforesaid, such holder or ground lessor
shall be treated as having assumed Landlord's obligations hereunder
only upon a foreclosure of such holder's mortgage and the taking of
possession of the Premises, or in the case of a ground lessor, the
assumption of Landlord's position hereunder by such ground lessor. In
no event shall the acquisition of title to the Building and the land
on which the same is located by a purchaser which, simultaneously
therewith, leases the entire Building or such land back to the seller
thereof be treated as an assumption, by 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. For all purposes, such seller-lessee, and its successors
in title, shall be the landlord hereunder unless and until Landlord's
position shall have been assumed by such purchaser-lessor.
32. PERSONAL PROPERTY TAXES.
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Tenant shall pay all taxes which may be lawfully charged, assessed, or
imposed upon all fixtures and equipment of every type and also upon all personal
property in the Premises, and Tenant shall pay all license fees which may
lawfully be imposed upon the business of Tenant conducted upon the Premises.
33. MISCELLANEOUS.
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A. Rights Cumulative. All rights and remedies of Landlord under this
Lease shall be cumulative and none shall exclude any other rights and remedies
allowed by law. All rights and remedies of Tenant under this Lease shall be
cumulative and none shall exclude any other rights and remedies allowed by law,
except as otherwise provided herein.
B. Interest. All payments becoming due under this Lease and remaining
unpaid when due shall bear interest until paid at the rate of two percent (2%)
per annum above the prime rate of interest charged from time to time by The
First National Bank of Boston (but in no event at a rate which is more than the
highest rate which is at the time lawful in the Commonwealth of Massachusetts).
C. Terms. The necessary grammatical changes required to make the
provisions hereof apply either to corporations or partnerships or individuals,
men or women, as the case may require, shall in all cases be assumed as though
in each case fully expressed.
D. Binding Effect. Each of the provisions of this Lease shall extend
to and shall, as the case may require, bind or inure to the benefit not only of
Landlord and of Tenant, but also of their respective successors or assigns,
provided this clause shall not permit any assignment by Tenant contrary to the
provisions of Paragraph 17 hereof. All indemnities, covenants and agreements of
Tenant contained herein shall inure to the benefit of Landlord's agents and
employees.
E. Lease Contains All Terms. All of the representations and
obligations of Landlord and Tenant are contained herein and in the Exhibits
attached hereto, and no modification, waiver or amendment of this Lease or of
any of its conditions or provisions shall be binding upon Landlord unless in
writing signed by Landlord or by a duly authorized agent of Landlord empowered
by a written authority signed by Landlord. Furthermore, no modification, waiver
or amendment of this Lease or of any of its conditions or provisions shall be
binding upon Tenant unless in writing signed by Tenant or by a duly authorized
agent of Tenant empowered by a written authority signed by Tenant.
F. Delivery for Examination. Submission of this Lease for examination
shall not bind Landlord in any manner, and no lease or obligations of Landlord
shall arise until this instrument is signed by both Landlord and Tenant and
delivery is made to each.
G. No Air Rights. No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease.
H. Modification of Lease. If any lender requires, as a condition to
its lending funds the repayment of which is to be secured by a mortgage or trust
deed on the Premises and Building or either, that certain modifications be made
to this Lease, which modifications will not require Tenant to pay any additional
amounts or otherwise change materially the rights or obligations of Tenant
hereunder, Tenant shall, upon Landlord's request, execute appropriate
instruments effecting such modifications.
I. Intentionally Deleted.
J. Transfer of Landlord's Interest. Tenant acknowledges that Landlord
has the right to transfer its interest in the Premises, the Office Section and
the Building and in this Lease, and Tenant agrees that in the event of any such
transfer Landlord shall automatically be released from all liability under this
Lease and Tenant agrees to look solely to such transferee for the performance of
Landlord's obligations hereunder. Tenant further acknowledges that Landlord may
assign its interest in this Lease to a mortgage lender as additional security
provided that such an assignment shall not release Landlord from its obligations
hereunder and that Tenant shall be entitled to continue to look to Landlord for
the performance of its obligations hereunder.
K. Landlord's Title. Landlord's title is and always shall be paramount
to the title of Tenant. Nothing herein contained shall empower Tenant to commit
or engage in any act which can, shall or may encumber the title of Landlord.
L. Prohibition Against Recording. Neither this Lease, nor any
memorandum, affidavit or other writing with respect thereto, shall be recorded
by Tenant or by anyone acting through, under or on behalf of Tenant, and the
recording thereof in violation of this provision shall make this Lease null and
void at Landlord's election.
M. Captions. The captions of paragraphs and subparagraphs are for
convenience only and shall not be deemed to limit, construe, affect or alter the
meaning of such paragraphs or subparagraphs.
N. Covenants and Condition. All of the covenants of Tenant hereunder
shall be deemed and construed to be "conditions", if Landlord so elects, as well
as "covenants" as though the words specifically expressing or importing
covenants and conditions were used in each separate instance.
O. Only Landlord/Tenant Relationship. Nothing contained in this Lease
shall be deemed or construed by the parties hereto or by any third party to
create the relationship of principal and agent, partnership, joint venturer or
any association between Landlord and Tenant, it being expressly understood and
agreed that neither the method of computation of Rent nor any act of the parties
hereto shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
P. Application of Payments. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease (regardless of Tenant's
designation of such payments) to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord in its sole discretion may elect.
Q. Definition of Landlord. All indemnities, covenants and agreements
of Tenant contained herein which inure to the benefit of Landlord shall be
construed to also inure to the benefit of Landlord's agents and employees.
R. Time of Essence. Time is of the essence of this Lease and each of
its provisions.
S. Governing Law. Interpretation of this Lease shall be governed by
the law of the Commonwealth of Massachusetts.
T. Partial Invalidity. If any term, provision or condition contained
in this Lease shall, to any extent, be invalid or unenforceable, the remainder
of this Lease (or the application of such term, provision or condition to
persons or circumstances other than those in respect of which it is invalid or
unenforceable) shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
U. Size of Premises. The size of Premises will be determined on the
basis of the standards set forth in Exhibit E attached hereto. With regard to
Base Rent, Operating Expenses, and with regard to all other payments which are
computed based upon the rentable area of the Premises, it is understood that the
amounts payable as set forth in this Lease are predicated upon assumed rentable
area set forth in this Lease. Not later than ninety (90) days after the
Commencement Date, an exact measurement of the rentable area of the Premises
shall be made in accordance with Exhibit E, and if said measurement shall
indicate rentable area different from that recited in this Lease, Landlord and
Tenant shall promptly execute a supplemental instrument adjusting the amounts
payable hereunder to conform to the exact measurements. Such adjustments shall
be made by multiplying the amount subject to adjustment by a fraction, the
numerator of which is the actual rentable area of the Premises and the
denominator of which is the rentable area of the Premises originally set forth
herein. Any payment due from either party to the other as a result of any
adjustments made hereunder shall be paid promptly upon rendition of a statement
by the party entitled to additional Rent, or Rent refund as the case may be.
34. NOTICES
--- -------
All notices to be given under this Lease shall be in writing and
either hand delivered; delivered by reputable overnight courier, delivery
acknowledged by recipient; or deposited in the United States mail, certified or
registered mail with return receipt requested, postage prepaid, addressed as
follows:
A. If to Landlord:
c/o Urban Retail Properties
Xxxxx 000
Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Building Manager
with copies to:
Urban Retail Properties
Suite 1300
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Law Department
or to such other person or such other address designated by notice sent by
Landlord or Tenant, and as provided in Paragraph 30 of this Lease.
B. If to Tenant:
OXIGENE, Inc.
I 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 10022
Attn: Vice President
After receiving notice from any person, firm or other entity that it
holds a mortgage which includes the Building as part of the mortgaged premises,
no notice from Tenant to Landlord shall be effective unless and until a copy of
the same is given to such holder, and the curing of any of Landlord's defaults
by such holder shall be treated as performance by Landlord. Such holder shall be
given such reasonable time as may be necessary to effect such cure or to
foreclose the mortgage, as the case may be. For the purposes of Xxxxxxxxx 00,
Xxxxxxxxx 30, Paragraph 31 and this Paragraph 34, the term mortgage" includes a
mortgage on a leasehold interest of Landlord (but not one on Tenant's leasehold
interest).
Notice by mail shall be deemed to have been given as of the date of
mailing as aforesaid, but for purposes of computing the period during which a
party may cure notice shall be deemed to have been given three (3) business days
after mailing. Notice by hand delivery or reputable overnight courier shall be
deemed to have been given at the time of delivery.
35. LIMITATION ON LIABILITY.
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It is expressly understood and agreed by Tenant that none of
Landlord's covenants, undertakings or agreements are made or intended as
personal covenants, undertakings or agreements by Landlord or its partners, and
any liability for damage or breach or nonperformance by Landlord shall be
collectible only out of Landlord's interest in the Building and no personal
liability is assumed by, nor at any time may be asserted against, Landlord's
partners or any of Landlord's directors, officers, agents, employees, legal
representatives, successors or assigns, all such liability, if any, being
expressly waived and released by Tenant. The provisions of this Paragraph 35
shall expressly be applicable to and inure to the benefit of Landlord's
successors and assigns. In no event shall Landlord or its constituent partners
be liable for any incidental or consequential damages in connection with its
obligations under, or any action taken by Landlord or its constituent partners
in connection with, this Lease.
It is expressly understood and agreed by Landlord that none of
Tenant's covenants, undertakings or agreements are made or intended as personal
covenants, undertakings or agreements by Tenant or its partners, and any
liability for damage or breach or nonperformance by Tenant shall be collectible
only out of Tenant's interest in the Lease and no personal liability is assumed
by, nor at any time may be asserted against, Tenant's partners or any of
Tenant's directors, officers, agents, employees, legal representatives,
successors or assigns, all such liability, if any, being expressly waived and
released by Landlord. In no event shall Tenant or its constituent partners be
liable for any incidental or consequential damages in connection with its
obligations under, or any action taken by Tenant or its constituent partners in
connection with, this Lease.
36. LANDLORD'S DESIGNATED AGENT.
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It is expressly understood and agreed by Tenant that the provisions of
this Lease may be enforced on behalf of Landlord by an agent designated by
Landlord for such purpose, and such enforcement shall be equally effective
whether in the name of Landlord or such agent.
37. COMMENCEMENT AND TERMINATION DATES.
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If Landlord shall not have substantially completed Landlord's Work (as
set forth in the Work Letter) by five (5) days prior to the Commencement Date
("Landlord's Completion Date") so as to enable Tenant to complete Tenant's Work
(as set forth in the Work Letter) then notwithstanding Paragraph 3 of this
Lease, the Commencement Date shall be deferred for the number of days after
Landlord's Completion Date required for Landlord to substantially complete
Landlord's Work, and the Termination Date shall be extended by the number of
days by which the Commencement Date was so deferred; provided, however, the
Commencement Date shall not be deferred if the Premises are not substantially
completed by reason of any "Tenant Delays" set forth in Paragraph K of the Work
Letter.
38. CANCELLATION OPTION.
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Tenant shall have the option to cancel this Lease (the "Cancellation
Option") upon notice to Landlord (the "Cancellation Notice") of Tenant's
exercise of the Cancellation Option, such Cancellation Notice to be delivered
not less than six (6) months prior to the "Cancellation Date" (as hereinafter
defined); provided, however, the Cancellation Notice, shall only be effective if
(i) Tenant is not at the time of delivery of the Cancellation Notice or at the
Cancellation Date in default of its obligations under this Lease and, (ii)
simultaneously with the delivery of the Cancellation Notice, Tenant pays to
Landlord the Cancellation Fee (as hereinafter defined). The Cancellation Date
shall be the date which is six (6) months after Landlord's receipt of the
Cancellation Notice; provided, however, the Cancellation Date may not be earlier
than the last day of the thirty-sixth (36th) full calendar month of the Term or
later than the Termination Date. The Cancellation Fee shall be an amount
determined based upon the Cancellation Date as follows: If the Cancellation Date
is on the last day of the thirty-sixth (36th) full calendar month of the Term,
the Cancellation Fee shall equal Thirty-Eight Thousand Nine Hundred Twenty and
00/100 Dollars ($38,920.00); If the Cancellation Date is after the last day of
the thirty-sixth (36th) full calendar month of the Term, the Cancellation Fee
shall be an amount equal to Thirty-Eight Thousand Nine Hundred Twenty and 00/100
Dollars ($38,920.00), less Three Thousand Two Hundred Forty-Three and 33/100
Dollars ($3,243.33) for every month that the Cancellation Date extends beyond
the thirty-sixth (36th) full calendar month of the Term.
39. CONSTRUCTION
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In connection with the Tenant Improvement Work and in accordance with
the terms of the Work Letter, an amount equal to $30.00 per rentable square foot
of the Premises shall be paid by the Landlord as the Landlord's contribution
toward the Tenant Improvement Work. So long as Tenant is not in default
hereunder, any excess unused Construction Allowance may be credited against Base
Rent.
40. PARKING.
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Tenant shall have the right during the Term to use up to two (2)
non-reserved parking spaces in the garage located within and serving the
Property, subject to payment by Tenant for such use at the prevailing rate
therefor charged by the operator of the garage from time to time; provided,
however, at Landlord's option, all or some of Tenant's parking may be relocated
to the Dartmouth Street Garage in the property adjacent to the Building and
located on Dartmouth Street, in which event, the payment due for use of such
relocated spaces shall be at the prevailing rate charged therefor by the
operator of the Dartmouth Street Garage. In the event of non-payment of parking
charges due hereunder by the Tenant, Landlord shall have the right to terminate
Tenant's rights with respect to parking without any obligation to reinstate such
right to parking in the event Tenant attempts to resume payment for parking.
Executed as a sealed instrument as of the date first above written.
LANDLORD:
XXXXXX PLACE ASSOCIATES
NOMINEE CORPORATION
By: Overseas Management, Inc.,
a Delaware corporation, Agent
By:-------------------------------------
Xxxx Xxxxx
Its:--------------------------------
TENANT:
OXIGENE, Inc.
a Delaware corporation
By:-------------------------------------
Its Vice President
Hereunto duly authorized
