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Sample Business ContractsHome: Sample Business Contracts:
RESERVOIR PLACE II
WALTHAM, MASSACHUSETTS
LEASE
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in a
certain building (the "Building") known as Reservoir Place II and with an
address at 1601 Trapelo Road, Waltham, Massachusetts.
The parties to this Indenture of Lease hereby agree with each other as
follows:
ARTICLE I
REFERENCE DATA
1.1 Subjects Referred To:
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Article:
DATE OF LEASE: July 9, 2002
LANDLORD: Boston Properties Limited Partnership,
a Delaware limited partnership; the
general partner of which is Boston
Properties, Inc., a Delaware
corporation
LANDLORD'S ORIGINAL ADDRESS: c/o Boston Properties, Inc.
111 Huntington Avenue - Suite 300
Boston, Massachusetts 02199-7610
TENANT: Roving Software Incorporated, a
Delaware corporation
TENANT'S ORIGINAL ADDRESS: 117 Kendrick Street, Suite 400
Needham, Massachusetts 02494
Attn: Gail Goodman
LANDLORD'S CONSTRUCTION REPRESENTATIVE: Mark Denman
TENANT'S CONSTRUCTION REPRESENTATIVE: Dmitry Manilov
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OUTSIDE COMPLETION DATE FOR PHASE I July 22, 2002
CONSTRUCTION:
OUTSIDE COMPLETION DATE FOR PHASE II September 15, 2002
CONSTRUCTION:
ESTIMATED COMMENCEMENT DATE: July 12, 2002
RENT COMMENCEMENT DATE: The Commencement Date
TERM OR LEASE TERM (SOMETIMES CALLED Thirty-six (36) calendar months (plus
THE ORIGINAL TERM): the partial month, if any,
immediately following the Commencement
Date), unless extended or sooner
terminated as provided in this Lease.
EXTENSION OPTION: One (1) period of two (2) years, as
provided in and on the terms set forth
in Section 8.20 hereof.
THE SITE: That certain parcel of land located on
Trapelo Road, Waltham, Middlesex
County, Massachusetts, being more
particularly described in Exhibit A
attached hereto.
THE BUILDING: The Building known as Reservoir Place
II, and numbered 1601 Trapelo Road,
Waltham, Massachusetts, located on the
site and containing the Total Rentable
Floor Area set forth below.
THE ADDITIONAL BUILDING: The other Building known as Reservoir
Place I located on the Site and
containing the Total Rentable Floor
Area set forth below.
THE BUILDINGS: The Building and the Additional
Building.
THE COMPLEX: The Building and the Additional
Building together with all parking
areas, garage, and structures and the
Site.
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TENANT'S SPACE: A portion of the second (2nd) floor of
the Building in accordance with the
floor plan annexed hereto as Exhibit D
and incorporated herein by reference.
NUMBER OF PARKING PRIVILEGES: Privileges for parking thirty (30)
automobiles, nine (9) of which are
located in the garage below the
Building, and twenty-one (21) of which
will be located on the outdoor surface
lot.
ANNUAL FIXED RENT: (a) During the Original Term of this
Lease at the annual rate of Two Hundred
Eight Thousand Seven Hundred Sixty-Four
and 48/100 Dollars ($208,764.48)
(being the product of (i) $24.50 and
(ii) the "Rentable Floor Area of
Tenant's Space" (hereinafter defined in
this Section 1.1). The monthly
installment of annual fixed rent during
the Original Term is $17,397.04.
(b) During the extension option period
(if exercised), as determined pursuant
to Section 8.20.
BASE OPERATING EXPENSES: Landlord's Operating Expenses (as
hereinafter defined in Section 2.6) for
calendar year 2002, being January 1,
2002 through December 31, 2002.
BASE TAXES: Landlord's Tax Expenses (as hereinafter
defined in Section 2.7) for fiscal tax
year 2003, being July 1, 2002 through
June 30, 2003.
TENANT ELECTRICITY: Initially as provided in Section 2.8
subject to adjustment as provided in
Section 2.8.
RENTABLE FLOOR AREA OF TENANT'S SPACE
(SOMETIMES ALSO CALLED RENTABLE FLOOR
AREA OF THE PREMISES): 8,521 square feet.
TOTAL RENTABLE FLOOR AREA OF THE 368,257 square feet.
BUILDING:
TOTAL RENTABLE FLOOR AREA OF THE 161,734 square feet.
ADDITIONAL BUILDING:
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TOTAL RENTABLE FLOOR AREA OF THE 529,991 square feet.
BUILDINGS:
PERMITTED USE: General office purposes, including
development, marketing and sale of
software, software support and
training.
INITIAL MINIMUM LIMITS OF TENANT'S $3,000,000.00 combined single limit per
COMMERCIAL GENERAL LIABILITY INSURANCE: occurrence on a per location basis
BROKERS: Insignia/ESG, Inc. and Cushman &
Wakefield
SECURITY DEPOSIT: $104,382.24
GUARANTOR: None
1.2 Exhibits. There are incorporated as part of this Lease:
EXHIBIT A Description of Site
EXHIBIT B List of Plans for Landlord's Work
EXHIBIT C Landlord's Services
EXHIBIT D Floor Plan
EXHIBIT E Commencement Date Agreement
EXHIBIT F List of Mortgages
1.3 Table of Articles and Sections
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TABLE OF CONTENTS
Article I REFERENCE DATA
1.1 Subjects Referred To ........................................... 1
1.2 Exhibits ........................................................ 4
1.3 Table of Articles and Sections .................................. 4
Article II BUILDING, PREMISES, TERM AND RENT
2.1 The Premises .................................................... 9
2.2 Rights To Use Common Facilities ................................. 9
2.2.1 Tenant's Parking ................................................ 10
2.3 Landlord's Reservations ......................................... 10
2.4 Habendum ........................................................ 10
2.5 Monthly Fixed Rent Payments ..................................... 11
2.6 Adjustment for Operating Expenses ............................... 11
2.7 Adjustment for Real Estate Taxes ................................ 14
2.8 Tenant Electricity .............................................. 16
Article III CONDITION OF PREMISES; ALTERATIONS
3.1 SUBSTANTIAL COMPLETION .......................................... 17
3.2 OUTSIDE COMPLETION DATE ......................................... 19
3.3 Tenant Alterations and Additions ................................ 20
Article IV LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 Landlord covenants .............................................. 22
4.1.1 Services Furnished by Landlord .................................. 22
4.1.2 Additional Services Available to Tenant ......................... 22
4.1.3 Roof, Exterior Wall, Floor Slab and Common Facility Repairs...... 23
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4.1.4 Door Signs ...................................................... 23
4.2 Interruptions and Delays in Service and Repairs, etc ............ 23
4.3 Landlord's Indemnity ............................................ 24
Article V TENANT'S COVENANTS
5.1 Payments ........................................................ 24
5.2 Repair and Yield Up ............................................. 24
5.3 Use ............................................................. 25
5.4 Obstructions; Items Visible From Exterior; Rules and
Regulations ................................................ 25
5.5 Safety Appliances; Licenses ..................................... 26
5.6 Assignment; Sublease ............................................ 26
5.7 Indemnity; Insurance ............................................ 31
5.8 Personal Property at Tenant's Risk .............................. 32
5.9 Right of Entry .................................................. 32
5.10 Floor Load; Prevention of Vibrations and Noise .................. 33
5.11 Personal Property Taxes ......................................... 33
5.12 Compliance with Laws ............................................ 33
5.13 Payment of Litigation Expenses .................................. 33
Article VI CASUALTY AND TAKING
6.1 Fire and Casualty-Termination or Restoration; Rent Adjustment ... 33
6.2 Uninsured Casualty .............................................. 35
6.3 Eminent Domain-Termination or Restoration ....................... 35
6.4 Eminent Domain Damages Reserved ................................. 36
Article VII DEFAULT
7.1 Tenant's Default ................................................ 37
7.2 Landlord's Default .............................................. 41
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Article VIII MISCELLANEOUS
8.1 Extra Hazardous Use ............................................. 41
8.2 Waiver .......................................................... 41
8.3 Cumulative Remedies ............................................. 42
8.4 Quiet Enjoyment ................................................. 42
8.5 Notice To Mortgagee and Ground Lessor ........................... 43
8.6 Assignment of Rents ............................................. 43
8.7 Surrender ....................................................... 45
8.8 Brokerage ....................................................... 45
8.9 Invalidity of Particular Provisions ............................. 45
8.10 Provisions Binding; etc ......................................... 46
8.11 Recording ....................................................... 46
8.12 Notices ......................................................... 46
8.13 When Lease Becomes Binding ...................................... 47
8.14 Section Headings ................................................ 47
8.15 Rights of Mortgagee ............................................. 47
8.16 Status Report and Financial Statements .......................... 48
8.17 Self-Help ....................................................... 49
8.18 Holding Over .................................................... 49
8.19 Non-Subrogation ................................................. 50
8.20 Extension Option ................................................ 50
8.21 Security Deposit - Letter of Credit ............................. 51
8.22 Late Payment .................................................... 53
8.23 Governing Law ................................................... 53
8.24 Additional Rent ................................................. 53
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8.25 Waiver of Trial by Jury ......................................... 53
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ARTICLE II
BUILDING, PREMISES, TERM AND RENT
2.1 Landlord hereby demises and leases to Tenant, and Tenant hereby hires and
accepts from Landlord, Tenant's Space in the Building excluding exterior
faces of exterior walls, the common stairways and stairwells, elevators and
elevator wells, fan rooms, electric and telephone closets, janitor closets,
freight elevator vestibules, and pipes, ducts, conduits, wires and
appurtenant fixtures serving exclusively or in common other parts of the
Building and if Tenant's Space includes less than the entire rentable area
of any floor, excluding the common corridors, elevator lobbies and toilets
located on such floor.
Tenant's Space with such exclusions is hereinafter sometimes referred to as
the "Premises". The term "Building" means the Building identified on the
first page, and which is the subject of this Lease and being one of the two
(2) Buildings erected on the Site by the Landlord; the term "Site" means
all, and also any part, of the Land described in Exhibit A, plus any
additions or reductions thereto resulting from the change of any abutting
street line and all parking areas and structures. The terms "Property" or
"Complex" means the two (2) Buildings and the Site.
2.2 Subject to Landlord's right to change or alter any of the following in
Landlord's discretion as herein provided, Tenant shall have, as appurtenant
to the Premises, the non-exclusive right to use in common with others, but
not in a manner or extent that would materially interfere with the normal
operation and use of the Building as a multi-tenant office building and
subject to reasonable rules of general applicability to tenants of the
Building from time to time made by Landlord of which Tenant is given
notice: (a) the common lobbies, corridors, stairways, and elevators of the
Building, and the pipes, ducts, shafts, conduits, wires and appurtenant
meters and equipment serving the Premises in common with others, (b) the
loading areas serving the Building and the common walkways and driveways
necessary for access to the Building, and (c) if the Premises include less
than the entire rentable floor area of any floor, the common toilets,
corridors and elevator lobby of such floor. Tenant shall have the right,
during the Term of the Lease, to reserve and use free of charge any and all
of the eight conference rooms in the Building on a first come first serve
basis, along with the other tenants of the Building and Landlord shall
maintain a reservation book for such purposes. Notwithstanding anything to
the contrary herein, Landlord has no obligation to allow any particular
telecommunication service provider to have access to the Building or the
Premises. If Landlord permits such access, Landlord may condition such
access upon the payment to Landlord by the service provider of fees
assessed by Landlord in its sole discretion. Landlord approves Verizon
and/or
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UUNET/Worldcom as Tenant's service provider without assessment of any fees or
charges.
2.2.1 In addition, Landlord shall provide to Tenant monthly privileges in
the number specified in Section 1.1 for the parking of automobiles,
in common with use by other tenants from time to time of the Complex,
and on a first-come, first-served basis, and Landlord shall not be
obligated to furnish stalls or spaces on the Site specifically
designated for Tenant's use. Tenant covenants and agrees that it and
all persons claiming by, through and under it, shall at all times
abide by all reasonable rules and regulations promulgated by Landlord
with respect to the use of the parking areas on the Site. The parking
privileges granted herein are non-transferable except to a permitted
assignee or subtenant as provided in Section 5.6 through Section
5.6.5. Further, Landlord assumes no responsibility whatsoever for
loss or damage due to fire, theft or otherwise to any automobile(s)
parked on the Site or to any personal property therein, however
caused, and Tenant covenants and agrees, upon request from Landlord
from time to time, to notify its officers, employees, agents and
invitees of such limitation of liability. Tenant acknowledges and
agrees that a license only is hereby granted, and no bailment is
intended or shall be created.
2.3 Landlord reserves the right from time to time, without unreasonable
interference with Tenant's use: (a) to install, use, maintain, repair,
replace and relocate for service to the Premises and other parts of the
Building, or either, pipes, ducts, conduits, wires and appurtenant
fixtures, wherever located in the Premises or Building, and (b) to alter or
relocate any other common facility, provided that substitutions are
substantially equivalent or better. Installations, replacements and
relocations referred to in clause (a) above shall be located so far as
practicable in the central core area of the Building, above ceiling
surfaces, below floor surfaces or within perimeter walls of the Premises.
Except in the case of emergencies, Landlord agrees to use its best efforts
to give Tenant reasonable advance notice of any of the foregoing activities
which require work in the Premises.
2.4 The Term of this Lease shall be the period specified in Section 1.1 hereof
as the "Lease Term", unless sooner terminated or extended as herein
provided. The Lease Term hereof shall commence on, and the Commencement
Date shall be, the later to occur of:
(a) The date on which the Phase I Construction is substantially complete,
as defined in Section 3.1 hereof, (including obtaining a temporary or
permanent certificate of occupancy from the applicable governmental
authority, to the extent required by law, for occupancy by Tenant of
the Premises for the Permitted Use ("Certificate of Occupancy"),
provided however, that if Landlord obtains a temporary Certificate of
Occupancy, Landlord shall use due diligence to obtain a permanent
Certificate of
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Occupancy promptly thereafter), which date is estimated to occur on or about
July 12, 2002; or
(b) July 12, 2002.
As soon as may be convenient after the Commencement Date has been
determined, Landlord and Tenant agree to join with each other in the
execution, in the form of Exhibit E hereto, of a written Commencement Date
Agreement in which the Commencement Date and specified Lease Term of this
Lease shall be stated. If Tenant shall fail to execute such Agreement, the
Commencement Date and Lease Term shall be as reasonably determined by
Landlord in accordance with the terms of this Lease.
2.5 Tenant agrees to pay to Landlord, or as directed by Landlord, at P.O. Box
3557, Boston, MA 02241-3557 or at such other place as Landlord shall from
time to time designate by notice, on the Commencement Date (defined in
Section 1.1 hereof) and thereafter monthly, in advance, on the first day of
each and every calendar month during the Original Term, a sum equal to one
twelfth (1/12th) of the Annual Fixed Rent (sometimes hereinafter referred
to as "fixed rent") and on the first day of each and every calendar month
during each extension option period (if exercised), a sum equal to one
twelfth (1/12th) of the annual fixed rent as determined in Section 8.20 for
the applicable extension option period.
Annual Fixed Rent for any partial month shall be paid by Tenant to Landlord
at such rate on a pro rata basis, and, if the Commencement Date is a day
other than the first day of a calendar month, the first payment which
Tenant shall make to Landlord shall be a payment equal to a proportionate
part of such monthly Annual Fixed Rent for the partial month from the
Commencement Date to the first day of the succeeding calendar month.
Other charges payable by Tenant on a monthly basis, as hereinafter
provided, likewise shall be prorated, and the first payment on account
thereof shall be determined in similar fashion; and other provisions of
this Lease calling for monthly payments shall be read as incorporating this
undertaking by Tenant.
The Annual Fixed Rent and all other charges for which provision is herein
made shall be paid by Tenant to Landlord, without offset, deduction or
abatement except as otherwise specifically set forth in this Lease.
2.6 "Landlord's Operating Expenses" means the cost of operation of the Building
and the Site which shall exclude costs of special services rendered either
to Tenant or to other tenants for which a separate charge is made and
capital expenditures, other than the Permitted Capital Expenditures, as
defined below, but shall include, without limitation, the following:
premiums for insurance carried with respect to the Building and the Site
(including, without limitation, liability insurance,
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insurance against loss in case of fire or casualty and insurance of monthly
installments of fixed rent and any additional rent which may be due under
this Lease and other leases of space in the Building for not more than 12
months in the case of both fixed rent and additional rent and if there be
any first mortgage of the Property, including such insurance as may be
required by the holder of such first mortgage); compensation and all fringe
benefits, workmen's compensation insurance premiums and payroll taxes paid
to, for or with respect to all persons engaged in the operating,
maintaining, managing, insuring or cleaning of the Building or Site, water,
sewer, electric, gas, oil and telephone charges (excluding heating,
ventilating and air conditioning, electricity and utility charges
separately chargeable to tenants); cost of building and cleaning supplies
and equipment; cost of maintenance, cleaning and repairs (other than
repairs not properly chargeable against income or reimbursed from
contractors under guarantees); cost of snow removal and care of
landscaping; payments under service contracts with independent contractors;
payments by the Landlord to the town in which the Complex is located
relating to traffic safety, fire safety, and other governmental services
and programs; management fees at reasonable rates consistent with the type
of occupancy and the service rendered; and all other reasonable and
necessary expenses paid in connection with the operation, cleaning,
management, insuring and maintenance of the Building and the Site and
properly chargeable against income; provided, however, there shall be
included (a) depreciation for capital expenditures ("Permitted Capital
Expenditures") made by Landlord (i) to reduce operating expenses if
Landlord shall have reasonably determined that the annual reduction in
operating expenses shall exceed depreciation therefor or (ii) to comply
with applicable laws, rules, regulations, requirements, statutes,
ordinances, by-laws and court decisions of all public authorities which are
now or hereafter in force (herein collectively called "Legal
Requirements"); plus (b) in the case of both (i) and (ii) an interest
factor, reasonably determined by Landlord, as being the interest rate then
charged for long term mortgages by institutional lenders on like properties
within the locality in which the Building is located; depreciation in the
case of both (i) and (ii) shall be determined by dividing the original cost
of such Permitted Capital Expenditure by the number of years of useful life
of the Permitted Capital Expenditure acquired and the useful life shall be
reasonably determined by Landlord in accordance with generally accepted
accounting principles and practices in effect at the time of acquisition of
the Permitted Capital Expenditure; and further provided, however, if
Landlord reasonably concludes on the basis of engineering estimates that a
particular Permitted Capital Expenditure will effect savings in other
Operating Expenses, including, without limitation, energy related costs,
and that such projected savings will, on an annual basis ("Projected Annual
Savings"), exceed the annual depreciation therefor, then and in such event
the amount of depreciation for such Permitted Capital Expenditure shall be
increased to an amount equal to the Projected Annual Savings; and in such
circumstance, the increased depreciation (in the amount of the Projected
Annual Savings) shall be made for such period of time as it would take to
fully amortize the cost of the item in question, together
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with interest thereon at the interest rate as aforesaid in equal monthly
payments, each in the amount of 1/12th of the Projected Annual Savings,
with such payment to be applied first to interest and the balance to
principal. Landlord hereby agrees that there shall be no duplication of
costs in Landlord's Operating Expenses.
"Operating Expenses Allocable to the Premises" shall mean (a) the same
proportion of Landlord's Operating Expenses for and pertaining to the
Building as the Rentable Floor Area of Tenant's Space bears to the Total
Rentable Floor Area of the Building plus (b) the same proportion of
Landlord's Operating Expenses for and pertaining to the Site as the
Rentable Floor Area of Tenant's Space bears to the Total Rentable Floor
Area of the Buildings.
"Base Operating Expenses" is hereinbefore defined in Section 1.1. Base
Operating Expenses shall not include market-wide cost increases due to
extraordinary circumstances, including but not limited to, Force Majeure
(as defined in Section 6.1), boycotts, strikes, conservation surcharges,
embargoes or shortages.
"Base Operating Expenses Allocable to the Premises" means (i) the same
proportion of Base Operating Expenses for and pertaining to the Building as
the Rentable Floor Area of Tenant's Space bears to the Rentable Floor Area
of the Building plus (ii) the same proportion of Base Operating Expenses
for and pertaining to the Site as the Rentable Floor Area of Tenant's Space
bears to the Rentable Floor Area of the Buildings.
Beginning with calendar year 2003, if with respect to any calendar year
falling within the Term, or fraction of a calendar year falling within the
Term at the beginning or end thereof, the Operating Expenses Allocable to
the Premises for a full calendar year exceed Base Operating Expenses
Allocable to the Premises, or for any such fraction of a calendar year
exceed the corresponding fraction of Base Operating Expenses Allocable to
the Premises, then Tenant shall pay to Landlord, as Additional Rent, the
amount of such excess. Such payments shall be made at the times and in the
manner hereinafter provided in this Section 2.6. The Base Operating
Expenses Allocable to the Premises do not and the Operating Expenses
Allocable to the Premises shall not include any costs in respect of
electricity and HVAC, provision for the payment of which is made in Section
2.8 of this Lease. Landlord shall provide Tenant with a statement, prepared
in accordance with the following paragraph, of Base Operating Expenses
Allocable to the Premises at the same time as operating cost statements for
such calendar year are provided to other tenants of the Building.
Not later than one hundred twenty (120) days after the end of the first
calendar year or fraction thereof ending December 31, 2003 and on December
31 of each succeeding calendar year during the Term or fraction thereof at
the end of the Term, Landlord shall render Tenant a statement in reasonable
detail and according
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to usual accounting practices certified by a representative of Landlord,
showing for the preceding calendar year or fraction thereof, as the case
may be, Landlord's Operating Expenses and Operating Expenses Allocable to
the Premises. Said statement to be rendered to Tenant shall also show for
the preceding year or fraction thereof as the case may be the amounts of
operating expenses already paid by Tenant as additional rent, and the
amount of operating expenses remaining due from, or overpaid by, Tenant for
the year or other period covered by the statement. Within thirty (30) days
after the date of delivery of such statement, Tenant shall pay to Landlord
the balance of the amounts, if any, required to be paid pursuant to the
above provisions of this Section 2.6 with respect to the preceding year or
fraction thereof, or Landlord shall credit any amounts due from it to
Tenant pursuant to the above provisions of this Section 2.6 against (i)
monthly installments of fixed rent next thereafter coming due or (ii) any
sums then due from Tenant to Landlord under this Lease (or refund such
portion of the overpayment as aforesaid if the Term has ended and Tenant
has no further obligation to Landlord).
In addition, commencing as of January, 2003, Tenant shall make payments
monthly on account of Tenant's share of increases in Landlord's Operating
Expenses anticipated for the then current year at the time and in the
fashion herein provided for the payment of Annual Fixed Rent. The amount to
be paid to Landlord shall be an amount reasonably estimated annually by
Landlord to be sufficient to cover, in the aggregate, a sum equal to
Tenant's share of such increases in Landlord's Operating Expenses for each
calendar year during the Term.
If the Building is not at least 95% occupied during any calendar year,
including calendar year 2002, Landlord's Operating Expenses shall be
determined as if the Building had been 95% occupied during that calendar
year and Base Operating Expenses shall also be determined as if the
Building had been 95% occupied. The extrapolation of Landlord's Operating
Expenses under this Section shall be performed by appropriately adjusting
the cost of those components of Landlord's Operating Expenses that are
impacted by changes in the occupancy of the Building.
2.7 If with respect to any full Tax Year or fraction of a Tax Year falling
within the Term beginning with the July 1, 2003-June 30, 2004 Tax Year,
Landlord's Tax Expenses Allocable to the Premises as hereinafter defined
for a full Tax Year exceed Base Taxes Allocable to the Premises, or for any
such fraction of a Tax Year exceed the corresponding fraction of Base Taxes
Allocable to the Premises then, on or before the thirtieth (30th) day
following receipt by Tenant of the certified statement referred to below in
this Section 2.7, then Tenant shall pay to Landlord, as Additional Rent,
the amount of such excess. In addition, payments by Tenant on account of
increases in real estate taxes anticipated for the then current year shall
be made monthly at the time and in the fashion herein provided
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for the payment of fixed rent commencing July 1, 2003. The amount so to be
paid to Landlord shall be an amount reasonably estimated by Landlord to be
sufficient to provide Landlord, in the aggregate, a sum equal to Tenant's
share of such increases, at least ten (10) days before the day on which
such payments by Landlord would become delinquent. Landlord shall provide
Tenant with a statement, prepared in accordance with the following
sentence, of Base Taxes Allocable to the Premises at the same time as tax
statements for such Tax Year are provided to other tenants of the Building.
Not later than one hundred twenty (120) days after Landlord's Tax Expenses
Allocable to the Premises are determined for the first such Tax Year or
fraction thereof and for each succeeding Tax Year or fraction thereof
during the Term, Landlord shall render Tenant a statement in reasonable
detail certified by a representative of Landlord showing for the preceding
year or fraction thereof, as the case may be, real estate taxes on the
Building and the Site and abatements and refunds of any taxes and
assessments. Expenditures for legal fees and for other expenses incurred in
obtaining the tax refund or abatement may be charged against the tax refund
or abatement before the adjustments are made for the Tax Year. Said
statement to be rendered to Tenant shall also show for the preceding year
or fraction thereof as the case may be the amounts of real estate taxes
already paid by Tenant as Additional Rent, and the amount of real estate
taxes remaining due from, or overpaid by, Tenant for the year or other
period covered by the statement. Within thirty (30) days after the date of
delivery of the foregoing statement, Tenant shall pay to Landlord the
balance of the amounts, if any, required to be paid pursuant to the above
provisions of this Section 2.7 with respect to the preceding year or
fraction thereof, or Landlord shall credit monthly installments of fixed
rent next thereafter coming due, or refund such overpayment if the Term has
ended and Tenant has no further obligation to Landlord.
Terms used herein are defined as follows:
(i) "Tax Year" means the twelve-month period beginning July 1 each year
during the Term or if the appropriate governmental tax fiscal period
shall begin on any date other than July 1, such other date. If during
the Lease Term the Tax Year is changed by applicable law to less than
a full 12-month period, the Base Taxes and Base Taxes Allocable to the
Premises shall each be proportionately reduced.
(ii) "Landlord's Tax Expenses Allocable to the Premises" shall mean (a) the
same proportion of Landlord's Tax Expenses for and pertaining to the
Building as the Rentable Floor Area of Tenant's Space bears to the
Total Rentable Floor Area of the Building plus (b) the same proportion
of Landlord's Tax Expenses for and pertaining to the Site as the
Rentable Floor Area of Tenant's Space bears to the Total Rentable
Floor Area of the Buildings.
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(iii) "Landlord's Tax Expenses" with respect to any Tax Year means the
aggregate real estate taxes on the Building and Site with respect to
that Tax Year, reduced by any abatement receipts with respect to that
Tax Year.
(iv) "Base Taxes" is hereinbefore defined in Section 1.1.
(v) "Base Taxes Allocable to the Premises" means (i) the same proportion
of Base Taxes for and pertaining to the Building as the Rentable Floor
Area of Tenant's Space bears to the Total Rentable Floor Area of the
Building, plus (ii) the same proportion of Base Taxes for and
pertaining to the Site as the Rentable Floor Area of Tenant's Space
bears to the Total Rentable Floor Area of the Buildings.
(vi) "Real estate taxes" means all taxes and special assessments of every
kind and nature assessed by any governmental authority on the Building
or Site which the Landlord shall become obligated to pay because of or
in connection with the ownership, leasing and operation of the Site,
the Building and the Property and reasonable expenses of any formal or
informal proceedings for negotiation or abatement of taxes. The amount
of special taxes or special assessments to be included shall be
limited to the amount of the installment (plus any interest, other
than penalty interest, payable thereon) of such special tax or special
assessment required to be paid during the year in respect of which
such taxes are being determined. There shall be excluded from such
taxes all income, estate, succession, inheritance and transfer taxes;
provided, however, that if at any time during the Term the present
system of ad valorem taxation of real property shall be changed so
that in lieu of the whole or any part of the ad valorem tax on real
property there shall be assessed on Landlord a capital levy or other
tax on the gross rents received with respect to the Site or Building,
or a federal, state, county, municipal, or other local income,
franchise, excise or similar tax, assessment levy or charge distinct
from any now in effect in the jurisdiction in which the Site or
Building are located) measured by or based, in whole or in part, upon
any such gross rents, then any and all of such taxes, assessments,
levies or charges, to the extent so measured or based, shall be deemed
to be included within the term "real estate taxes" but only to the
extent that the same would be payable if the Site and Buildings were
the only property of Landlord.
2.8 Tenant shall pay to Landlord, as Additional Rent, Tenant's Proportionate
Share (hereinafter defined) of the cost incurred by the Landlord in
furnishing electricity and heating, ventilating and air conditioning
("HVAC") to the Building and the Site, including common areas and
facilities and space occupied by tenants, (but expressly excluding utility
charges separately chargeable to tenants for additional or special services
and excluding electricity for the HVAC unit serving the
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Premises exclusively which shall be measured by a separate submeter
pursuant to Exhibit C), and Tenant shall pay on account thereof, at the
time that monthly installments of Annual Fixed Rent are due and payable, as
Additional Rent, an amount equal to 1/12th (prorated for any partial month)
of the amount estimated by Landlord from time to time as the Tenant's
Proportionate Share of the annual cost thereof. If with respect to any
calendar year falling within the Term or fraction of a calendar year
falling within the Term at the beginning or end thereof, the Tenant's
Proportionate Share of the cost of furnishing electricity and HVAC to the
Building and the Site exceeds the amounts payable on account thereof, then
Tenant shall pay to Landlord, as Additional Rent, on or before the
thirtieth (30th) day following receipt by Tenant of the statement referred
to below in this Section 2.8, Tenant's Proportionate Share of the amount of
such excess. For and with respect to the electricity and HVAC of the
Building, the Tenant's Proportionate Share shall be a fraction, the
numerator of which is the Rentable Floor Area of Tenant's Space and the
denominator of which is the Total Rentable Floor Area of the Building, and
for and with respect to the electricity for the Site the Tenant's
Proportionate Share shall be a fraction, the numerator of which is the
Rentable Floor Area of Tenant's Space and the denominator of which is the
Total Rentable Floor Area of the Buildings.
Not later than one hundred twenty (120) days after the end of the first
calendar year or fraction thereof ending December 31 and of each succeeding
calendar year during the Term or fraction thereof at the end of the Term,
Landlord shall render Tenant a reasonably detailed accounting certified by
a representative of Landlord showing for the preceding calendar year, or
fraction thereof, as the case may be, the costs of furnishing electricity
and HVAC to the Building and the Site. Said statement to be rendered to
Tenant also shall show for the preceding year or fraction thereof, as the
case may be, the amount already paid by Tenant on account of electricity
and HVAC, and the amount remaining due from, or overpaid by, Tenant for the
year or other period covered by the statement.
ARTICLE III
CONDITION OF PREMISES; ALTERATIONS
3.1 SUBSTANTIAL COMPLETION
(A) Landlord shall perform the work described on Exhibit B annexed hereto
and described therein as the Phase I Construction and the Phase II
Construction (collectively, "Landlord's Work"); provided, however, that the
Landlord shall have no responsibility for the installation or connection of
Tenant's computer, telephone, other communication equipment, systems or
wiring. It is agreed that (i) construction of the Phase I Construction is
intended to be "turnkey" and will be completed at Landlord's sole cost and
expense (subject to the terms of Section 3.1(B) below) and (ii) subject to
Section 3.2.B, Tenant shall, as Additional Rent,
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after the Phase II Construction is completed, reimburse Landlord upon
demand an amount ("Phase II Contribution") equal to the lesser of (x)
one-half (1/2) of the cost of the Phase II Construction or (y) Two Thousand
and 00/100 ($2,000.00) Dollars, and Landlord shall be responsible for the
balance of the costs of the Phase II Construction. Landlord's Work shall be
performed using Building Standard methods, materials and finishes. Landlord
and Tenant hereby agree that that certain letter agreement dated June 27,
2002 between Landlord and Tenant relating to reimbursement of certain
construction related costs shall upon the full execution and delivery of
this Lease be of no further force or effect.
(B) If Tenant shall request any revisions to Landlord's Work, Landlord
shall have such revisions prepared at Tenant's sole cost and expense and
Tenant shall reimburse Landlord for the cost of preparing any such
revisions to the Landlord's Work, plus any applicable state sales or use
tax thereon, upon demand. Promptly upon completion of the revisions,
Landlord shall notify Tenant in writing of the increased cost in Landlord's
Work, if any, resulting from such revisions to the Landlord's Work. Tenant,
within one business day shall notify Landlord in writing whether it desires
to proceed with such revisions. In the absence of such written
authorization, Landlord shall have the option to continue to work on the
Premises disregarding the requested revision. Tenant shall be responsible
for any Tenant Delay in completion of the Premises resulting from any
revisions to the Landlord's Work. If such revisions result in an increase
in the cost of Landlord's Work, such increased costs plus any applicable
state sales or use tax thereon, shall be payable by Tenant upon demand.
Notwithstanding anything herein to the contrary, all revisions to the
Landlord's Work shall be subject to the approval of Landlord.
(C) Subject to delays due to Force Majeure, as defined in Section 6.1,
Landlord shall use reasonable speed and diligence in the performance of
Landlord's Work, but Tenant shall have no claim against Landlord for
failure so to complete construction of Landlord's Work in the Premises,
except for the right to terminate this Lease, without further liability to
either party, in accordance with the provisions hereinafter specified in
Section 3.2.
The Phase I Construction shall be treated as having been substantially
completed on the later of:
(a) The date on which the Phase I Construction, together with common
facilities for access and services to the Premises, has been completed
(or would have been completed except for Tenant Delay) except for
items of work and adjustment of equipment and fixtures which can be
completed after occupancy has been taken without causing substantial
interference with Tenant's use of the Premises (i.e. so-called "punch
list" items) and items of work for which there is a long lead time in
obtaining the materials therefore or which are specially or
specifically manufactured, produced or
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milled for the work in or to the Premises and require additional time
for receipt or installation ("long lead" items), or
(b) The date when Landlord has received a Certificate of Occupancy, as
defined in Section 2.4(a).
The Phase II Construction shall be performed promptly after the substantial
completion of the Phase I Construction.
Landlord shall complete as soon as conditions practically permit all items
and work excepted by Section 3.1(C)(a) above, and Tenant shall cooperate
with Landlord in providing access as may be required to complete such work
in a normal manner. Landlord shall permit Tenant access for installing
Tenant's trade fixtures in portions of the Premises prior to substantial
completion when it can be done without material interference with remaining
work or with the maintenance of harmonious labor relations. In the event of
any dispute as to the date on which the Phase I Construction has been
completed as described in subsection 3.1(B)(a) above, the reasonable
determination of Landlord's architect as to such date shall be deemed
conclusive and binding on both Landlord and Tenant.
Tenant agrees that no delay by it, or anyone employed by it, in performing
work to prepare the Premises for occupancy (including, without limitation,
the work in installing Tenant's trade fixtures) (collectively a "Tenant
Delay") shall delay commencement of the Term or the obligation to pay rent,
regardless of the reason for such delay or whether or not it is within the
control of Tenant or any such employee, and the Phase I Construction shall
be deemed completed as of the date when the same would have been
substantially completed except for Tenant Delay, as determined by Landlord
in the exercise of its good faith business judgment. Nothing contained in
this paragraph shall limit or qualify or prejudice any other covenants,
agreements, terms, provisions and conditions contained in this Lease.
3.2 A. If Landlord shall have failed substantially to complete the Phase I
Construction in the Premises described in Exhibit B on or before the
Outside Completion Date for Phase I Construction as defined in Section 1.1
hereof (which date shall be extended automatically for such periods of time
as Landlord is prevented from proceeding with or completing the same by
reason of Force Majeure as defined in Section 6.1) Tenant shall have the
right to terminate this Lease by giving notice ("Termination Notice") to
Landlord of Tenant's desire to do so before such completion and after the
Outside Completion Date for the Phase I Construction (as so extended) and
by paying to Landlord, at the time that Tenant gives such Termination
Notice, the sum of Thirty Thousand and 00/100 ($30,000.00) Dollars
("Termination Fee"); and, upon the giving of such Termination Notice and
the payment of such Termination Fee, the term of this Lease shall cease and
come to an end without further liability or obligation on the part of
either party; and such right of termination shall be Tenant's sole and
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exclusive remedy for Landlord's failure so to complete the Phase I
Construction within such time. Each day of Tenant Delay shall be deemed
conclusively to cause an equivalent day of delay by Landlord in
substantially completing the Phase I Construction pursuant to Section 3.1,
and thereby automatically extend for each such equivalent day of delay the
date of the Outside Completion Date for the Phase I Construction. If Tenant
fails to pay the Termination Fee at the time Tenant gives such Termination
Notice, then Tenant's Termination Notice shall be null and void and of no
force or effect.
B. In addition, if Landlord shall have failed to obtain a permanent
Certificate of Occupancy on or before the expiration of the temporary
Certificate of Occupancy, as such temporary Certificate of Occupancy may be
extended, and if such failure is not due to the acts or omissions of
Tenant, Tenant's agents, contractors or employees, then Tenant shall have
the right to terminate this Lease by giving notice ("CO Termination
Notice") to Landlord of Tenant's desire to do so before Landlord obtains
the permanent Certificate of Occupancy and, upon the giving of such CO
Termination Notice, the term of this Lease shall cease and come to an end
without further liability or obligation on the part of either party; and
such right of termination shall be Tenant's sole and exclusive remedy for
Landlord's failure so to obtain a permanent Certificate of Occupancy on or
before the expiration of the temporary Certificate of Occupancy, as it may
be extended.
C. If Landlord shall have failed substantially to complete the Phase II
Construction in the Premises described in Exhibit B on or before the
Outside Completion Date for the Phase II Construction as defined in Section
1.1 hereof (which date shall be extended automatically for such periods of
time as Landlord is prevented from proceeding with or completing the same
by reason of Force Majeure as defined in Section 6.1) then Tenant shall
have no obligation to pay to Landlord the Phase II Contribution, as defined
in Section 3.1(A), which shall be Tenant's sole and exclusive remedy for
Landlord's failure so to complete the Phase II Construction within such
time. Each day of Tenant Delay shall be deemed conclusively to cause an
equivalent day of delay by Landlord in substantially completing the Phase
II Construction pursuant to Section 3.1, and thereby automatically extend
for such equivalent day of delay the date of the Outside Completion Date
for the Phase II Construction.
3.3 This Section 3.3 shall apply before and during the Term. All construction
work required or permitted by this Lease shall be done in a good and
workmanlike manner and in compliance with all applicable laws, ordinances,
rules, regulations, statutes, by-laws, court decisions, and orders and
requirements of all public authorities ("Legal Requirements") and all
Insurance Requirements (as defined in this Section 3.3 hereof). All of
Tenant's work shall be coordinated with any work being performed by or for
Landlord and in such manner as to maintain harmonious labor relations. Each
party may inspect the work of the other at reasonable times and shall
promptly give notice of observed defects. Each party
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authorizes the other to rely in connection with design and construction
upon approval and other actions on the party's behalf by any Construction
Representative of the party named in Section 1.1 or any person hereafter
designated in substitution or addition by notice to the party relying.
Except as otherwise provided in Article IV, the work required of Landlord
pursuant to this Article III, if any, shall be deemed approved by Tenant
when Tenant commences occupancy of the Premises for the Permitted Use,
except for items which are then uncompleted (including punch list items and
long lead items) and as to which Tenant shall have given Landlord notice
prior to such date. Tenant shall not make alterations and additions to
Tenant's space except in accordance with plans and specifications therefor
first approved by Landlord, which approval shall not be unreasonably
withheld or delayed. However, Landlord's determination of matters relating
to aesthetic issues relating to alterations, additions or improvements
which are visible outside the Premises shall be in Landlord's sole
discretion. Without limiting such standard Landlord shall not be deemed
unreasonable for withholding approval of any alterations or additions
(including, without limitation, any alterations or additions to be
performed by Tenant under Section 3.1) which (a) involve or, in Landlord's
opinion, might affect any structural or exterior element of the Building,
any area or element outside of the Premises, or any facility serving any
area of the Building outside of the Premises, or (b) will delay completion
of the Premises or Building, or (c) will require unusual expense to readapt
the Premises to normal office use on Lease termination or increase the cost
of construction or of insurance or taxes on the Building or of the services
called for by Section 4.1 unless Tenant first gives assurance acceptable to
Landlord for payment of such increased cost and that such readaptation will
be made prior to such termination without expense to Landlord, or (d) are
inconsistent, in Landlord's judgment, with alterations satisfying
Landlord's standards for new alterations in the Building. Landlord's review
and approval of any such plans and specifications and consent to perform
work described therein shall not be deemed an agreement by Landlord that
such plans, specifications and work conform with applicable Legal
Requirements and requirements of insurers of the Building (herein cared
"Insurance Requirements") nor deemed a waiver of Tenant's obligations under
this Lease with respect to applicable Legal Requirements and Insurance
Requirements nor impose any liability or obligation upon Landlord with
respect to the completeness, design sufficiency or compliance of such
plans, specifications and work with applicable Legal Requirements and
Insurance Requirements. Within 30 days after receipt of an invoice from
Landlord, Tenant shall pay to Landlord, as a fee for Landlord's review of
any plans or work (excluding any review respecting initial improvements),
as Additional Rent: (i) actual out-of-pocket cost of such review, plus (ii)
third party expenses incurred by Landlord to review Tenant's plans and
Tenant's work. All alterations and additions shall be part of the Building
unless and until Landlord shall specify the same for removal pursuant to
Section 5.2. All of Tenant's alterations and additions and installation of
furnishings shall be coordinated with any work being performed by Landlord
and
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in such manner as to maintain harmonious labor relations and not to damage
the Buildings or Site or interfere with construction or operation of the
Buildings and other improvements to the Site and, except for installation
of furnishings, shall be performed by Landlord's general contractor or by
contractors or workers first approved by Landlord. Except for work by
Landlord's general contractor, Tenant, before its work is started, shall
secure all licenses and permits necessary therefor; deliver to Landlord a
statement of the names of all its contractors and subcontractors and the
estimated cost of all labor and material to be furnished by them and
security satisfactory to Landlord protecting Landlord against liens arising
out of the furnishing of such labor and material; and cause each contractor
to carry workmen's compensation insurance in statutory amounts covering all
the contractor's and subcontractor's employees and commercial general
liability insurance or comprehensive general liability insurance with a
broad form comprehensive liability endorsement with such limits as Landlord
may reasonably require, but in no event less than $3,000,000.00 combined
single limit per occurrence on a per location basis (all such insurance to
be written in companies approved by Landlord and naming and insuring
Landlord and Landlord's managing agent as additional insureds and insuring
Tenant as well as the contractors), and to deliver to Landlord certificates
of all such insurance. Tenant agrees to pay promptly when due the entire
cost of any work done on the Premises by Tenant, its agents, employees, or
independent contractors, and not to cause or permit any liens for labor or
materials performed or furnished in connection therewith to attach to the
Premises or the Buildings or the Site and immediately to discharge any such
liens which may so attach. Tenant shall pay, as additional rent, 100% of
any real estate taxes on the Complex which shall, at any time after
commencement of the Term, result from any alteration, addition or
improvement to the Premises made by Tenant.
ARTICLE IV
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 Landlord covenants:
4.1.1 To furnish services, utilities, facilities and supplies set forth in
Exhibit C equal to those customarily provided by landlords in high
quality buildings in the Boston West Suburban Market subject to
escalation reimbursement in accordance with Section 2.6.
4.1.2 To furnish, at Tenant's expense, reasonable additional Building
operation services which are usual and customary in similar office
buildings in the Boston West Suburban Market upon reasonable advance
request of Tenant at reasonable and equitable rates from time to time
established by Landlord.
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4.1.3 Subject to the escalation provisions of Section 2.6 and except as
otherwise provided in Article VI, (i) to make such repairs to the
roof, exterior walls, floor slabs and common areas and facilities and
all water, sewer, electrical, sprinkler, HVAC and other Building
systems which serve the Building generally as may be necessary to keep
them in serviceable condition and (ii) to maintain the Building
(exclusive of Tenant's responsibilities under this Lease) in a first
class manner comparable to the maintenance of similar properties in
the Boston West Suburban Market.
4.1.4 To provide and install, at Landlord's expense for the initial
installation (all changes thereafter at Tenant's expense), letters or
numerals on doors in the Premises and Tenant identification on the
Building directory in the lobby of the Building to identify Tenant's
official name and Building address; all such letters and numerals
shall be in the building standard graphics and no others shall be used
or permitted on the Premises.
4.2 Landlord shall not be liable to Tenant for any compensation or reduction of
rent by reason of inconvenience or annoyance or for loss of business
arising from the necessity of Landlord or its agents entering the Premises
for any of the purposes in this Lease authorized, or for repairing the
Premises or any portion of the Building or Site however the necessity may
occur. In case Landlord is prevented or delayed from making any repairs,
alterations or improvements, or furnishing any services or performing any
other covenant or duty to be performed on Landlord's part, by reason of any
cause reasonably beyond Landlord's control, including without limitation
strike, lockout, breakdown, accident, order or regulation of or by any
Governmental authority, or failure of supply, or inability by the exercise
of reasonable diligence to obtain supplies, parts or employees necessary to
furnish such services, or because of war or other emergency, or for any
cause due to any act or neglect of Tenant or Tenant's servants, agents,
employees, licensees or any person claiming by, through or under Tenant, or
other causes reasonably beyond Landlord's control, Landlord shall not be
liable to Tenant therefor, nor, except as expressly otherwise provided in
Article VI, shall Tenant be entitled to any abatement or reduction of rent
by reason thereof, nor shall the same give rise to a claim in Tenant's
favor that such failure constitutes actual or constructive, total or
partial, eviction from Premises.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs
have been completed; provided, however, that in each instance of stoppage,
Landlord shall exercise reasonable diligence to eliminate the cause
thereof. Except in case of emergency repairs, Landlord will give Tenant
reasonable advance notice of any contemplated stoppage and will use
reasonable efforts to avoid unnecessary inconvenience to Tenant by reason
thereof.
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4.3 Subject to the limitations on Landlord's liability set forth in this Lease,
and subject to Section 8.19, Landlord agrees to indemnify, defend and save
harmless Tenant from and against any claim arising from any accident,
injury or damage occurring in the Premises, in the Building or on the
Property after the date that possession of the Premises is first delivered
to Tenant and until the expiration or earlier termination of the Lease
Term, to the extent that such accident, injury or damage results from the
negligence or willful misconduct of Landlord or Landlord's agents,
employees or contractors. Landlord shall have the right, without Tenant's
approval, to settle any litigation arising within the scope of Landlord's
indemnity, provided that Tenant is not required to pay any portion of such
settlement.
ARTICLE V
TENANT'S COVENANTS
Tenant covenants during the term and such further time as Tenant occupies
any part of the Premises:
5.1 To pay when due all fixed rent and additional rent and all charges for
utility services rendered to the Premises (except as otherwise provided in
Exhibit C) and, as further additional rent, all charges for additional
services rendered pursuant to Section 4.1.2.
5.2 Except as otherwise provided in Article VI and Section 4.1.3 to keep the
Premises in good order, repair and condition, reasonable wear and tear only
excepted (the parties hereby acknowledging that the carpeting in the
Premises presently has significant gaps in the seams which Tenant shall not
be obligated to repair hereunder), and all glass in windows (except glass
in exterior walls unless the damage thereto is attributable to Tenant's
negligence or misuse) and doors of the Premises whole and in good condition
with glass of the same type and quality as that injured or broken, damage
by fire or taking under the power of eminent domain only excepted, and at
the expiration or termination of this Lease peaceably to yield up the
Premises all construction, work, improvements, and all alterations and
additions thereto in good order, repair and condition, reasonable wear and
tear only excepted, first removing (i) all goods and effects of Tenant,
(ii) the wiring for Tenant's computer, telephone and other communication
systems and equipment, unless Landlord, by notice to Tenant given at least
ten (10) days before such expiration or termination, specifies that such
wiring need not be removed, and (iii) to the extent specified by Landlord
by notice to Tenant given at least ten (10) days before such expiration or
termination, all alterations and additions made by Tenant and all
partitions, and repairing any damages caused by such removal and restoring
the Premises and leaving them clean and neat. Notwithstanding the
foregoing, Landlord agrees to make such election at the time that Landlord
approves Tenant's plans for any such alterations, etc., if Tenant requests
in writing that Landlord make such election at the time that Tenant
requests Landlord's
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approval of such alterations, etc. Tenant shall not permit or commit any
waste, and Tenant shall be responsible for the cost of repairs which may be
made necessary by reason of damage to common areas in the Building, to the
Site or to the other building caused by Tenant, Tenant's agents, employees,
contractors, sublessees, licensees, concessionaires or invitees. Tenant
shall maintain all its equipment, furniture and furnishings in good order
and repair. Landlord agrees to assign any warranties to Tenant for
enforcement which Landlord receives in connection with the HVAC unit
installed by Landlord as part of the Landlord's Work.
5.3 To use the Premises for the Permitted Uses only, and not to injure or
deface the Premises, Building, the Additional Building, the Site or any
other part of the Complex nor to permit in the Premises or on the Site any
auction sale, vending machine, or inflammable fluids or chemicals, or
nuisance, or the emission from the Premises of any objectionable noise or
odor, nor to use or devote the Premises or any part thereof for any purpose
other than the Permitted Uses, nor any use thereof which is inconsistent
with the maintenance of the Building as an office building of the first
class in the quality of its maintenance, use and occupancy, or which is
improper, offensive, contrary to law or ordinance or liable to invalidate
or increase the premiums for any insurance on the Building or its contents
or liable to render necessary any alteration or addition to the Building.
Further, (i) Tenant shall not, nor shall Tenant permit its employees,
invitees, agents, independent contractors, contractors, assignees or
subtenants to, keep, maintain, store or dispose of (into the sewage or
waste disposal system or otherwise) or engage in any activity which might
produce or generate any substance which is or may hereafter be classified
as a hazardous material, waste or substance (collectively "Hazardous
Materials") (other than standard quantities of customary office supplies
and cleaning materials kept, used and disposed of in accordance with all
applicable laws), under federal, state or local laws, rules and
regulations, including, without limitation, 42 U.S.C. Section 6901 et seq.,
42 U.S.C. Section 9601 et seq., 42 U.S.C. Section 2601 et seq., 49 U.S.C.
Section 1802 et seq. and Massachusetts General Laws, Chapter 21E and the
rules and regulations promulgated under any of the foregoing, as such laws,
rules and regulations may be amended from time to time (collectively
"Hazardous Materials Laws"), (ii) Tenant shall immediately notify Landlord
of any incident in, on or about the Premises, the Building or the Site that
would require the filing of a notice under any Hazardous Materials Laws,
(iii) Tenant shall comply and shall cause its employees, invitees, agents,
independent contractors, contractors, assignees and subtenants to comply
with each of the foregoing and (iv) Landlord shall have the right to make
such inspections (including testing) as Landlord shall elect from time to
time to determine that Tenant is complying with the foregoing.
5.4 Not to obstruct in any manner any portion of the Building not hereby leased
or any portion thereof or of the other building or of the Site used by
Tenant in common with others; not without prior consent of Landlord to
permit the painting or
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placing of any signs, curtains, blinds, shades, awnings, aerials or
flagpoles, or the like, visible from outside the Premises; and to comply
with all reasonable Rules and Regulations now or hereafter made by
Landlord, of which Tenant has been given notice, for the care and use of
the Building and Site and their facilities and approaches; Landlord shall
not be liable to Tenant for the failure of other occupants of the Buildings
to conform to such rules and regulations. Notwithstanding anything to the
contrary in this Lease contained, Landlord agrees that it will not enforce
said Rules and Regulations against Tenant in a discriminatory or arbitrary
manner.
5.5 To keep the Premises equipped with all safety appliances required by any
public authority because of any use made by Tenant other than normal office
use, and to procure all licenses and permits so required because of such
use and, if requested by Landlord, to do any work so required because of
such use, it being understood that the foregoing provisions shall not be
construed to broaden in any way Tenant's Permitted Use.
5.6 Except as otherwise expressly provided herein, Tenant covenants and agrees
that it shall not assign, mortgage, pledge, hypothecate or otherwise
transfer this Lease and/or Tenant's interest in this Lease or sublet (which
term, without limitation, shall include granting of concessions, licenses
or the like) the whole or any part of the Premises. Any assignment,
mortgage, pledge, hypothecation, transfer or subletting not expressly
permitted in or consented to by Landlord under Sections 5.6.1-5.6.5 shall
be void, ab initio; shall be of no force and effect; and shall confer no
rights on or in favor of third parties. In addition, Landlord shall be
entitled to seek specific performance of, and other equitable relief with
respect to, the provisions hereof. Notwithstanding the foregoing, changes
in equity ownership in Tenant shall not constitute an assignment for the
purposes of this Section 5.6 nor be subject to Landlord's termination right
pursuant to Section 5.6.1.1 nor require notice to Landlord pursuant to
Section 5.6 3 nor require a separate written instrument with Landlord
pursuant to Section 5.6.5 nor be deemed transfers or other events requiring
Landlord's consent under this Section 5.6 of the Lease so long as such
changes are not for the purpose of avoiding or otherwise circumventing the
provisions of this Section 5.6.
5.6.1 Notwithstanding the foregoing provisions of Section 5.6 above and the
provisions of Section 5.6.2 below, but subject to the provisions of
Sections 5.6.3, 5.6.4 and 5.6.5, below Tenant shall have the right to
assign this Lease or to sublet the Premises (in whole or in part) to
any parent or subsidiary corporation or affiliate of Tenant or to any
corporation or entity into which Tenant may be converted into or with
which it may be merged or consolidated or which shall succeed to all
or substantially all of the business or assets of Tenant, provided
that the entity to which this Lease is so assigned or which so sublets
the Premises has a credit worthiness (e.g. assets on a pro forma basis
using generally accepted accounting principles
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consistently applied and using the most recent financial statements) which
is the same or better than the Tenant as of the Date of this Lease. For
purposes hereof, an "affiliate" shall be any person or entity which shall
control, shall be controlled by or shall be under common control with
Tenant. If any parent or subsidiary corporation or affiliate of Tenant to
which this Lease is assigned or the Premises sublet (in whole or in part)
shall cease to be such a parent or subsidiary corporation or affiliate,
such cessation shall be considered an assignment or subletting requiring
Landlord's consent. Section 5.6.1.1 shall not be applicable to an
assignment or sublease pursuant to this Section 5.6.1.
5.6.1.1 Notwithstanding the provisions of Section 5.6 above, in the
event Tenant desires to assign this Lease or to sublet the whole
(but not part) of the Premises (no partial subletting being
permitted other than as provided in Section 5.6.1), Tenant shall
notify Landlord thereof in writing and Landlord shall have the
right at its sole option, to be exercised within thirty (30) days
after receipt of Tenant's notice, to terminate this Lease as of a
date specified in a notice to Tenant, which date shall be sixty
(60) days after Landlord's notice to Tenant; provided, however,
that upon the termination date as set forth in Landlord's notice,
all obligations relating to the period after such termination
date (but not those relating to the period before such
termination date) shall cease and promptly upon being billed
therefor by Landlord, Tenant shall make final payment of all rent
and additional rent due from Tenant through the termination date.
In the event that Landlord shall not exercise its termination
rights as aforesaid, or shall fail to give any or timely notice
pursuant to this Section the provisions of Sections 5.6.2-5.6.5
shall be applicable. This Section 5.6.1.1 shall not be applicable
to an assignment or sublease pursuant to Section 5.6.1.
5.6.2 Notwithstanding the provisions of Section 5.6 above, but subject to
the provisions of this Section 5.6.2 and the provisions of Sections
5.6.3, 5.6.4 and 5.6.5 below, in the event that Landlord shall not
have exercised the termination right as set forth in Section 5.6.1.1,
or shall have failed to give any or timely notice under Section
5.6.1.1, then for a period of ninety (90) days (i) after the receipt
of Landlord's notice stating that Landlord does not elect the
termination right, or (ii) after the expiration of the thirty (30) day
period referred to in Section 5.6.1.1 in the event Landlord shall not
give any or timely notice under Section 5.6.1.1, as the case may be,
Tenant shall have the right to assign this Lease or sublet the whole
(but not part) of the Premises in accordance with Tenant's notice to
Landlord given as provided in Section 5.6.3 provided that, in each
instance, Tenant first obtains the express prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed.
Without limiting the foregoing
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standard, Landlord shall not be deemed to be unreasonably withholding
its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is a tenant in the Building, is (or
within the previous sixty (60) days has been) in active negotiation
with Landlord for premises in the Building or is not of a character
consistent with the operation of a first class office building (by way
of example Landlord shall not be deemed to be unreasonably withholding
its consent to an assignment or subleasing to any governmental or
quasi-governmental agency), or
(b) the proposed assignee or subtenant is not of good character and
reputation, or
(c) the proposed assignee or subtenant does not possess adequate financial
capability to perform the Tenant obligations as and when due or
required, or
(d) the assignee or subtenant proposes to use the Premises (or part
thereof) for a purpose other than the purpose for which the Premises
may be used as stated in Section 1.1 hereof, or
(e) the character of the business to be conducted or the proposed use of
the Premises by the proposed subtenant or assignee shall (i) be likely
to increase Landlord's Operating Expenses beyond that which Landlord
now incurs for use by Tenant; (ii) be likely to increase the burden on
elevators or other Building systems or equipment over the burden prior
to such proposed subletting or assignment; or (iii) violate or be
likely to violate any provisions or restrictions contained herein
relating to the use or occupancy of the Premises, or
(f) there shall be existing an Event of Default (defined in Section 7.1),
or
(g) any part of the rent payable under the proposed assignment or sublease
shall be based in whole or in part on the income or profits derived
from the Premises of if any proposed assignment or sublease shall
potentially have any adverse effect on the real estate investment
trust qualification requirements applicable to Landlord and its
affiliates, or
(h) the holder of any mortgage or ground lease on property which includes
the Premises does not approve of the proposed assignment or sublease
and Landlord provides evidence to Tenant of such disapproval of the
proposed assignment or subletting.
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5.6.3 Tenant shall give Landlord prior notice of any proposed sublease or
assignment (provided that, if prohibited by confidentiality in
connection with a proposed sale, merger, consolidation or
reorganization, then Tenant shall give Landlord written notice within
10 days after the effective date of the proposed sale, merger,
consolidation or reorganization), and said notice shall specify the
provisions of the proposed assignment or subletting, including (a) the
name and address of the proposed assignee or subtenant, (b) in the
case of a proposed assignment or subletting pursuant to Section 5.6.2,
such information as to the proposed assignee's or proposed subtenant's
net worth and financial capability and standing as may reasonably be
required for Landlord to make the determination referred to in Section
5.6.2 above (provided, however, that Landlord shall hold such
information confidential having the right to release same to its
officers, accountants, attorneys and mortgage lenders on a
confidential basis), (c) all of the terms and provisions upon which
the proposed assignment or subletting is to be made, (d) in the case
of a proposed assignment or subletting pursuant to Section 5.6.2, all
other information necessary to make the determination referred to in
Section 5.6.2 above and (e) in the case of a proposed assignment or
subletting pursuant to Section 5.6.1 above, such information as may be
reasonably required by Landlord to determine that such proposed
assignment or subletting complies with the requirements of said
Section 5.6.1. No partial subletting shall be permitted.
If Landlord shall consent to the proposed assignment or subletting, as
the case may be, then, in such event, Tenant may thereafter sublease
(the whole but (except in the case of a partial sublease under Section
5.6.1) not part of the Premises) or sign pursuant to Tenant's notice,
as given hereunder; provided, however, that if such assignment or
sublease shall not be executed and delivered to Landlord within
ninety (90) days after the date of Landlord's consent, the consent
shall be deemed null and void and the provisions of Section 5.6.1.1
shall be applicable.
5.6.4 In addition, in the case of any assignment or subleasing as to which
Landlord may consent (other than an assignment or subletting permitted
under Section 5.6.1 hereof) such consent shall be upon the express and
further condition, covenant and agreement, and Tenant hereby covenants
and agrees that, in addition to the Annual Fixed Rent, additional rent
and other charges to be paid pursuant to this Lease, fifty percent
(50%) of the "Assignment/Sublease Profits" (hereinafter defined), if
any, shall be paid to Landlord.
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The "Assignment/Sublease Profits" shall be the excess, if any, of (a)
the "Assignment/Sublease Net Revenues" as hereinafter defined over (b)
the Annual Fixed Rent and additional rent and other charges provided
in this Lease (provided, however, that for the purpose of calculating
the Assignment/Sublease Profits in the case of a sublease, appropriate
proportions in the applicable Annual Fixed Rent, additional rent and
other charges under this Lease shall be made based on the percentage
of the Premises subleased and on the terms of the sublease). The
"Assignment/Sublease Net Revenues" shall be the fixed rent, additional
rent and all other charges and sums payable either initially or over
the term of the sublease or assignment, less the reasonable costs of
Tenant incurred in such subleasing or assignment (the definition of
which shall include but not necessarily be limited to rent
concessions, brokerage commissions and alteration allowances) as set
forth in a statement certified by an appropriate officer of Tenant and
delivered to Landlord within thirty (30) days of the full execution of
the sublease or assignment document, amortized over the term of the
sublease or assignment.
All payments of the Assignment/Sublease Profits due Landlord shall be
made within ten (10) days of receipt of same by Tenant.
5.6.5 (A) It shall be a condition of the validity of any assignment or
subletting permitted under Section 5.6.1 above, or consented to under
Section 5.6.2 above, that both Tenant and the assignee or sublessee
agree directly with Landlord in a separate written instrument
reasonably satisfactory to Landlord which contains terms and
provisions reasonably required by Landlord, including, without
limitation, the agreement of the assignee or sublessee to be bound by
all the obligations of the Tenant hereunder, including, without
limitation, the obligation to pay the rent and other amounts provided
for under this Lease (but in the case of a partial subletting pursuant
to Section 5.6.1, such subtenant shall agree on a pro rata basis to be
so bound) including the provisions of Sections 5.6 through 5.6.5
hereof (if prohibited by confidentiality in connection with a proposed
sale, merger, consolidation or reorganization, then Tenant shall
execute such written instrument within 10 days after the effective
date of the proposed sale, merger, consolidation or reorganization),
but such assignment or subletting shall not relieve the Tenant named
herein of any of the obligations of the Tenant hereunder, Tenant shall
remain fully and primarily liable therefor and the liability of
Tenant and such assignee (or subtenant, as the case may be) shall be
joint and several. Further, and notwithstanding the foregoing, the
provisions hereof shall not constitute a recognition of the assignment
or the assignee thereunder or the sublease or the subtenant
thereunder, as the case may be, and at Landlord's option, upon the
termination or expiration of the Lease (whether such termination is
based upon a cause beyond Tenant's control, a default of Tenant, the
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agreement of Tenant and Landlord or any other reason), the assignment
or sublease shall be terminated.
(B) As Additional Rent, Tenant shall reimburse Landlord promptly for
reasonable out of pocket legal and other expenses incurred by Landlord
in connection with any request by Tenant for consent to assignment or
subletting.
(C) If this Lease be assigned, or if the Premises or any part thereof
be sublet or occupied by anyone other than Tenant, Landlord may upon
prior notice to Tenant, at any time and from time to time, collect
rent and other charges from the assignee, sublessee or occupant and
apply the net amount collected to the rent and other charges herein
reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of this covenant, or a waiver of the
provisions of Sections 5.6 through 5.6.5 hereof, or the acceptance of
the assignee, sublessee or occupant as a tenant or a release of Tenant
from the further performance by Tenant of covenants on the part of
Tenant herein contained, the Tenant herein named to remain primarily
liable under this Lease.
(D) No assignment or subletting under any of the provisions of
Sections 5.6.1 or 5.6.2 shall in any way be construed to relieve
Tenant from obtaining the express consent in writing to Landlord to
any further assignment or subletting which would otherwise require
Landlord's consent hereunder.
(E) Without limiting Tenant's obligations under Section 3.3, Tenant
shall be responsible, at Tenant's sole cost and expense, for
performing all work necessary to comply with Legal Requirements and
Insurance Requirements in connection with any assignment or subletting
hereunder including, without limitation, any work in connection with
such assignment or subletting.
5.7 To defend with counsel first approved by Landlord (which approval shall not
be unreasonably withheld or delayed), save harmless, and indemnify Landlord
from any liability for injury, loss, accident or damage to any person or
property, and from any claims, actions, proceedings and expenses and costs
in connection therewith (including without limitation reasonable counsel
fees) (i) arising from (a) the omission, fault, willful act, negligence or
other misconduct of Tenant or Tenant's contractors, licensees, invitees,
agents, servants, independent contractors or employees or (b) any use made
or thing done or occurring on the Premises not due to the omission, fault,
willful act, negligence or other misconduct of Landlord, or,(ii) resulting
from the failure of Tenant to perform and discharge its covenants and
obligations under this Lease; to maintain commercial general liability
insurance or comprehensive general liability insurance written on an
occurrence
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basis with a broad form comprehensive liability endorsement covering the
Premises insuring Landlord and Landlord's managing agent (and such persons
as are in privity of estate with Landlord and Landlord's managing agent as
may be set out in notice from time to time) as additional insureds as well
as Tenant with limits which shall, at the commencement of the Term, be at
least equal to those stated in Section 1.1 and from time to time during the
Term shall be for such higher limits, if any, as are customarily carried in
Greater Boston with respect to similar properties or which may reasonably
be required by Landlord, and workmen's compensation insurance with
statutory limits covering all of Tenant's employees working in the
Premises, and to deposit with Landlord on or before the Commencement Date
and concurrent with all renewals thereof, certificates for such insurance
bearing the endorsement that the policies will not be canceled until after
thirty (30) days' written notice to Landlord. All insurance required to be
maintained by Tenant pursuant to this Lease shall be maintained with
responsible companies qualified to do business, and in good standing, in
the Commonwealth of Massachusetts and which have a rating of at least "A-"
and are within a financial size category of not less than "Class VIII" in
the most current Best's Key Rating Guide or such similar rating as may be
reasonably selected by Landlord if such Guide is no longer published.
5.8 That all of the furnishings, fixtures, equipment, effects and property of
every kind, nature and description of Tenant and of all persons claiming
by, through or under Tenant which, during the continuance of this Lease or
any occupancy of the Premises by Tenant or anyone claiming under Tenant,
may be on the Premises or elsewhere in the Building or on the Site, shall
be at the sole risk and hazard of Tenant, and if the whole or any part
thereof shall be destroyed or damaged by fire, water or otherwise, or by
the leakage or bursting of water pipes, steam pipes, or other pipes, by
theft or from any other cause, no part of said loss or damage is to be
charged to or be borne by Landlord, except that Landlord shall in no event
be indemnified or held harmless or exonerated from any liability to Tenant
or to any other person, for any injury, loss, damage or liability to the
extent that such injury, loss, damage, or liability is due to Landlord's
negligence or willful misconduct or to the extent such indemnity, hold
harmless or exoneration is prohibited by law. Further, Tenant, at Tenant's
expense, shall maintain at all times during the Term of this Lease
insurance against loss or damage covered by so-called "all risk" type
insurance coverage with respect to Tenant's fixtures, equipment, goods,
wares and merchandise, tenant improvements made by or paid for by Tenant,
and other property of Tenant (collectively, "Tenant's Property"). Such
insurance shall be in an amount at least equal to the full replacement cost
of Tenant's Property.
5.9 To permit Landlord and its agents to examine the Premises at reasonable
times upon reasonable advance notice (except that no notice shall be
required in an emergency) and, if Landlord shall so elect, to make any
repairs or replacements Landlord may deem necessary; to remove, at Tenant's
expense, any alterations, addition, signs, curtains, blinds, shades,
awnings, aerials, flagpoles, or the like not
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consented to in writing; and to show the Premises to prospective tenants
during the eleven (11) months preceding expiration of the Term and to
prospective purchasers and mortgagees at all reasonable times.
5.10 Not to place a load upon the Premises exceeding an average rate of 70
pounds of live load per square foot of floor area (partitions shall be
considered as part of the live load); and not to move any safe, vault or
other heavy equipment in, about or out of the Premises except in such
manner and at such time as Landlord shall in each instance authorize;
Tenant's business machines and mechanical equipment which cause vibration
or noise that may be transmitted to the Building structure or to any other
space in the Building shall be so installed, maintained and used by Tenant
so as to eliminate such vibration or noise.
5.11 To pay promptly when due all taxes which may be imposed upon Tenant's
Property in the Premises to whomever assessed.
5.12 To comply with all applicable Legal Requirements now or hereafter in force
which shall impose a duty on Tenant relating to or as a result of the
Tenant's use or occupancy of the Premises; provided that Tenant shall not
be required to make any alterations or additions to the Building systems,
structure, roof, exterior and load bearing walls, foundation, structural
floor slabs and other structural elements of the Building unless the same
are required by such Legal Requirements as a result of or in connection
with Tenant's use or occupancy of the Premises beyond normal use of space
of this kind. Tenant shall promptly pay all fines, penalties and damages
that may arise out of or be imposed because of its failure to comply with
the provisions of this Section 5.12.
5.13 As Additional Rent, to pay all reasonable costs, counsel and other fees
incurred by Landlord in connection with the successful enforcement by
Landlord of any obligations of Tenant under this Lease or in connection
with any bankruptcy case involving Tenant or any guarantor.
ARTICLE VI
CASUALTY AND TAKING
6.1 In case during the Lease Term the Building is damaged by fire or casualty
and (i) such fire or casualty damage cannot, in the ordinary course,
reasonably be expected to be repaired within one hundred twenty (120) days
from the time that repair work would commence as reasonably determined by
Landlord, or (ii) in any case where the holder of any mortgage which
includes the Building as a part of the mortgaged premises or any ground
lessor of any ground lease which includes the Site as part of the demised
premises does not allow the net insurance proceeds to be applied to the
restoration of the Building (and/or the Site), Landlord may, at its
election, terminate this Lease by notice given to Tenant within sixty (60)
days
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after the date of such fire or other casualty, specifying the effective
date of termination. The effective date of termination specified by
Landlord shall not be less than thirty (30) days nor more than forty-five
(45) days after the date of notice of such termination.
In case during the last year of the Lease Term, the Premises are damaged by
fire or casualty and such fire or casualty damage cannot, in the ordinary
course, reasonably be expected to be repaired within one hundred fifty
(150) days (and/or as to special work or work which requires long lead time
then if such work cannot reasonably be expected to be repaired within such
additional time as is reasonable under the circumstances given the nature
of the work) from the time that repair work would commence as reasonably
determined by Landlord, Tenant may, at its election, terminate this Lease
by notice given to Landlord within sixty (60) days after the date of such
fire or other casualty, specifying the effective date of termination. The
effective date of termination specified by Tenant shall be not less than
thirty (30) days nor more than forty-five (45) days after the date of
notice of such termination.
In the event that the Lease is terminated pursuant to this Article VI, a
just proportion of the Annual Fixed Rent, Tenant's share of Operating
Costs, Tenant's share of real estate taxes and Tenant's Proportionate Share
of electricity and HVAC according to the nature and extent of the injury to
the Premises shall be abated from the date of such fire or other casualty
until the effective termination date.
Unless terminated pursuant to the foregoing provisions, this Lease shall
remain in full force and effect following any such damage subject, however,
to the following provisions.
If the Building or any part thereof is damaged by fire or casualty and this
Lease is not so terminated, or Landlord or Tenant have no right to
terminate this Lease, Landlord promptly after such damage and the
determination of the net amount of insurance proceeds available shall use
due diligence to restore the Premises and the Building in the event of
damage thereto (excluding Tenant's Property) into proper condition for use
and occupation and a just proportion of the Annual Fixed Rent, Tenant's
share of Operating Costs, Tenant's share of real estate taxes and Tenant's
Proportionate Share of electricity and HVAC according to the nature and
extent of the injury to the Premises shall be abated until the Premises
shall have been put by Landlord substantially into such condition except
for punch list items and long lead items. Notwithstanding anything herein
contained to the contrary, Landlord shall not be obligated to expend for
such repair and restoration any amount in excess of the net insurance
proceeds.
Where Landlord is obligated or otherwise elects to effect restoration of
the Premises, unless such restoration is completed within nine (9) months
from the
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date of the casualty or taking, such period to be subject, however, to
extension where the delay in completion of such work is due to Force
Majeure, as defined hereinbelow (but in no event beyond twelve (12) months
from the date of the casualty or taking), Tenant shall have-the right to
terminate this Lease at any time after the expiration of such nine-month
(as extended) period until the restoration is substantially completed, such
termination to take effect as of the thirtieth (30th) day after the date of
receipt by Landlord of Tenant's notice, with the same force and effect as
if such date were the date originally established as the expiration date
hereof unless, within thirty (30) days after Landlord's receipt of Tenant's
notice, such restoration is substantially completed, in which case Tenant's
notice of termination shall be of no force and effect and this Lease and
the Lease Term shall continue in full force and effect. When used herein,
"Force Majeure" shall mean any prevention, delay or stoppage due to
governmental regulation, strikes, lockouts, acts of God, acts of war,
terrorists acts, civil commotions, unusual scarcity of or inability to
obtain labor or materials, labor difficulties, casualty or other causes
reasonably beyond Landlord's control or attributable to Tenant's action or
inaction.
6.2 Notwithstanding anything to the contrary contained in this Lease, if the
Building or the Premises shall be substantially damaged by fire or casualty
as the result of a risk not covered by the forms of casualty insurance at
the time maintained by Landlord and such fire or casualty damage cannot, in
the ordinary course, reasonably be expected to be repaired within thirty
(30) days from the time that repair work would commence, Landlord may, at
its election, terminate the Term of this Lease by notice to the Tenant
given within thirty (30) days after such loss. If Landlord shall give such
notice, then this Lease shall terminate as of the date of such notice with
the same force and effect as if such date were the date originally
established as the expiration date hereof.
6.3 If the entire Building, or such portion of the Premises or access thereto
as to render the balance (if reconstructed to the maxim extent practicable
in the circumstances) unsuitable for Tenant's purposes, shall be taken by
condemnation or right of eminent domain, Landlord or Tenant shall have the
right to terminate this Lease by notice to the other of its desire to do
so, provided that such notice is given not later than thirty (30) days
after Tenant has been deprived of possession. If either party shall give
such notice, then this Lease shall terminate as of the date of such notice
with the same force and effect as if such date were the date originally
established as the expiration date hereof.
Further, if (i) so much of the Building or Site shall be so taken that
continued operation of the Building would be uneconomic as a result of the
taking, or (ii) the holder of any mortgage which includes the Premises as
part of the mortgaged premises or any ground lessor of any ground lease
which includes the Site as part of the demised premises does not allow the
net condemnation proceeds to be applied to the restoration of the Building,
Landlord shall have the right to
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terminate this Lease by giving notice to Tenant of Landlord's desire to do
so not later than thirty (30) days after Tenant has been deprived of
possession of the Premises (or such portion thereof as may be taken). If
Landlord shall give such notice, then this Lease shall terminate as of the
date of such notice with the same force and effect as if such date were the
date originally established as the expiration date hereof.
Should any part of the Premises be so taken or condemned during the Lease
Term hereof, and should this Lease not be terminated in accordance with the
foregoing provisions, Landlord agrees that after the determination of the
net amount of condemnation proceeds available to Landlord, Landlord shall
use due diligence to put what may remain of the Premises into proper
condition for use and occupation as nearly like the condition of the
Premises prior to such taking as shall be practicable (excluding Tenant's
Property). Notwithstanding the foregoing, Landlord shall not be obligated
to expend for such repair and restoration any amount in excess of the net
condemnation proceeds made available to it.
If the Premises or the access thereto shall be affected by any exercise of
the power of eminent domain, then the Annual Fixed Rent, Tenant's share of
Operating Costs, Tenant's share of real estate taxes and Tenant's
Proportionate Share of electricity and HVAC shall be justly and equitably
abated and reduced according to the nature and extent of the loss of use
thereof suffered by Tenant; and in case of a taking which permanently
reduces the Rentable Floor Area of the Premises, a just proportion of the
Annual Fixed Rent, Tenant's share of operating costs and Tenant's share of
real estate taxes shall be abated for the remainder of the Lease Term.
6.4 Landlord shall have and hereby reserves to itself any and all rights to
receive awards made for damages to the Premises, the Buildings, the Complex
and the Site and the leasehold hereby created, or any one or more of them,
accruing by reason of exercise of eminent domain or by reason of anything
lawfully done in pursuance of public or other authority. Tenant hereby
grants, releases and assigns to Landlord all Tenant's rights such awards,
and covenants to execute and deliver such further assignments and
assurances thereof as Landlord may from time to time request.
Nothing contained herein shall be construed to prevent Tenant from
prosecuting in any condemnation proceeding a claim for the value of any of
Tenant's usual trade fixtures installed in the Premises by Tenant at
Tenant's expense and for relocation and moving expenses, provided that such
action and any resulting award shall not affect or diminish the amount of
compensation otherwise recoverable by Landlord from the taking authority.
ARTICLE VII
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DEFAULT
7.1 (a) If at any time subsequent to the date of this Lease any one or more of
the following events (herein sometimes called an "Event of Default")
shall occur:
(i) Tenant shall fail to pay any installment of the Annual Fixed Rent,
Additional Rent or other charges for which provision is made herein on or
before the date on which the same become due and payable, and the same
continues for ten (10) days after notice from Landlord thereof, or
(ii) Landlord having rightfully given the notice specified in
subdivision (a) above twice in any calendar year, Tenant shall thereafter
in the same calendar year fail to pay the Annual Fixed Rent, Additional
Rent or any other monetary amount due under this Lease on or before the
date on which the same become due and payable, or,
(iii) Tenant shall assign its interest in this Lease or sublet any
portion of the Premises in violation of the requirements of Sections 5.6
through 5.6.5 of this Lease, or
(iv) Tenant shall fail to perform or observe some term or condition
of this Lease which, because of its character, would immediately
jeopardize Landlord's interest (such as, but without limitation, failure to
maintain general liability insurance, or the employment of labor and
contractors within the Premises which interfere with Landlord's work, in
violation of Section 3.3), and such failure continues for five (5) days
after notice from Landlord to Tenant thereof; or
(v) Tenant shall neglect or fail to perform or observe any other
requirement, term, covenant or condition of this Lease (not hereinabove in
this Section 7.1(a) specifically referred to) on Tenant's part to be
performed or observed and Tenant shall fail to remedy the same within
thirty (30) days after notice to Tenant specifying such neglect or failure,
or if such neglect or failure is of such a nature that Tenant cannot
reasonably remedy the same within such thirty (30) day period, Tenant shall
fail to commence promptly to remedy the same and to prosecute such remedy
to completion with diligence and continuity; or
(vi) Tenant's leasehold interest in the Premises shall be taken on
execution or by other process of law directed against Tenant; or
(vii) Tenant shall make an assignment for the benefit of creditors or
shall file a voluntary petition in bankruptcy or shall be adjudicated
bankrupt or insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief
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for itself under any present or future Federal, State or other statute, law
or regulation for the relief of debtors, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of
Tenant or of all or any substantial part of its properties, or shall admit
in writing its inability to pay its debts generally as they become due; or
(viii) A petition shall be filed against Tenant in bankruptcy or under
any other law seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present
or future Federal, State on other statute, law or regulation and shall
remain undismissed or unstayed for an aggregate of sixty (60) days (whether
or not consecutive), or if any debtor in possession (whether or not Tenant)
trustee, receiver or liquidator of Tenant or of all or any substantial part
of its properties or of the Premises shall be appointed without the consent
or acquiescence of Tenant and such appointment shall remain unvacated or
unstayed for an aggregate of sixty (60) days (whether or not consecutive).
then, and in any of said cases (notwithstanding any license of a former
breach of covenant or waiver of the benefit hereof or consent in a former
instance), Landlord lawfully may, immediately or at any time thereafter,
and without demand or further notice of default terminate this Lease by
notice to Tenant, specifying a date not less than five (5) days after the
giving of such notice on which this Lease shall terminate, and this Lease
shall come to an end on the date specified therein as fully and completely
as if such date were the date herein originally fixed for the expiration of
the Lease Term (Tenant hereby waiving any rights of redemption), and Tenant
will then quit and surrender the Premises to Landlord, but Tenant shall
remain liable as hereinafter provided.
(b) If this Lease shall have been terminated as provided in this Article,
then Landlord may, without notice, re-enter the Premises, either by force,
summary proceedings, ejectment or otherwise, and remove and dispossess
Tenant and all other persons and any and all property from the same, as if
this Lease had not been made, and Tenant hereby waives the service of
notice of intention to re-enter.
(c) In the event that this Lease is terminated under any of the provisions
contained in Section 7.1(a) or shall be otherwise terminated by breach of
any obligation of Tenant, Tenant covenants and agrees forthwith to pay and
be liable for, on the days originally fixed herein for the payment thereof,
amounts equal to the several installments of rent and other charges
reserved as they would, under the terms of this Lease, become due if this
Lease had not been terminated or if Landlord had not entered or re-entered,
as aforesaid, and whether the Premises be relet or remain vacant, in whole
or in part, or for a period less than the remainder of the Term, and for
the whole thereof, but in the event the Premises be relet by Landlord,
Tenant shall be entitled to a credit in the net amount of rent and other
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charges received by Landlord in reletting, after deduction of all expenses
incurred in reletting the Premises (including, without limitation,
remodeling costs, brokerage fees and the like), and in collecting the rent
in connection therewith, in the following manner:
Amounts received by Landlord after reletting shall first be applied against
such Landlord's expenses, until the same are recovered, and until such
recovery, Tenant shall pay, as of each day when a payment would fall due
under this Lease, the amount which Tenant is obligated to pay under the
terms of this Lease (Tenant's liability prior to any such reletting and
such recovery not in any way to be diminished as a result of the fact that
such reletting might be for a rent higher than the rent provided for in
this Lease); when and if such expenses have been completely recovered, the
amounts received from reletting by Landlord as have not previously been
applied shall be credited against Tenant's obligations as of each day when
a payment would fall due under this Lease, and only the net amount thereof
shall be payable by Tenant. Further, amounts received by Landlord from such
reletting for any period shall be credited only against obligations of
Tenant allocable to such period, and shall not be credited against
obligations of Tenant hereunder accruing subsequent or prior to such
period; nor shall any credit of any kind be due for any period after the
date when the term of this Lease is scheduled to expire according to its
terms.
(d) (i) Landlord may elect, as an alternative, to have Tenant pay
liquidated damages, which election may be made by notice given to
Tenant at any time after the termination of this Lease under this
Section 7.1, above, and whether or not Landlord shall have collected
any damages as hereinbefore provided in this Article VII, and in lieu
of all other such damages beyond the date of such notice. Upon such
notice, Tenant shall promptly pay to Landlord, as liquidated damages,
in addition to any damages collected or due from Tenant from any
period prior to such notice and all expenses which Landlord may have
incurred with respect to the collection of such damages, such a sum as
at the time of such notice represents the amount of such excess, if
any, of (a) the discounted present value, at a discount rate of 6%, of
the Annual Fixed Rent, Additional Rent and other charges which would
have been payable by Tenant under this Lease for the remainder of the
Lease Term if the Lease terms had been fully complied with by Tenant,
over and above (b) the discounted present value, at a discount rate of
6%, of the Annual Fixed Rent, Additional Rent and other charges that
would be received by Landlord if the Premises were re-leased at the
time of such notice for the remainder of the Lease Term at the fair
market value (including provisions regarding periodic increases in
Annual Fixed Rent if such are applicable) prevailing at the time of
such notice as reasonably determined by Landlord.
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(ii) For the purposes of this Article, if Landlord elects to require
Tenant to pay damages in accordance with the immediately preceding
paragraph, the total rent shall be computed by assuming that Tenant's
share of excess taxes, Tenant's share of excess operating costs and
Tenant's share of excess electrical costs would be, for the balance of
the unexpired Term from the date of such notice, the amount thereof
(if any) for the immediately preceding annual period payable by Tenant
to Landlord.
(e) In case of any Event of Default, re-entry, dispossession by summary
proceedings or otherwise, Landlord may (i) re-let the Premises or any part
or parts thereof, either in the name of Landlord or otherwise, for a term
or terms which may at Landlord's option be equal to or less than or exceed
the period which would otherwise have constituted the balance of the Term
of this Lease and may grant concessions or free rent to the extent that
Landlord considers advisable or necessary to re-let the same and (ii) may
make such alterations, repairs and decorations in the Premises as Landlord
in its sole judgment considers advisable or necessary for the purpose of
reletting the Premises; and the making of such alterations, repairs and
decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be liable in
any way whatsoever for failure to re-let the Premises, or, in the event
that the Premises are re-let, for failure to collect the rent under
re-letting. Tenant, for itself and any and all persons claiming through or
under Tenant, including its creditors, upon the termination of this Lease
and of the term of this Lease in accordance with the terms hereof, or in
the event of entry of judgment for the recovery of the possession of the
Premises in any action or proceeding, or if Landlord shall enter the
Premises by process of law or otherwise, hereby waives any right of
redemption provided or permitted by any statute, law or decision now or
hereafter in force, and does hereby waive, surrender and give up all rights
or privileges which it or they may or might have under and by reason of any
present or future law or decision, to redeem the Premises or for a
continuation of this Lease for the term of this Lease hereby demised after
having been dispossessed or ejected therefrom by process of law, or
otherwise.
Landlord agrees to use reasonable efforts to relet the Premises after
Tenant vacates the Premises in the event that the Lease is terminated based
upon a default by Tenant hereunder. Marketing of Tenant's Premises in a
manner similar to the manner in which Landlord markets other premises
within Landlord's control in the Complex shall be deemed to have satisfied
Landlord's obligation to use "reasonable efforts." In no event shall
Landlord be required to (i) solicit or entertain negotiations with any
other prospective tenants for the Premises until Landlord obtains full and
complete possession of the Premises including, without limitation, the
final and unappealable legal right to re-let the Premises free of any claim
of Tenant, (ii) give preference to reletting the Premises over leasing
other vacant space in the Building, or (iii) lease the Premises if, in
Landlord's bona fide
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business judgment, the proposed rent is less than the then current fair
market rental value of the Premises.
(f) The specified remedies to which Landlord may resort hereunder are not
intended to be exclusive of any remedies or means of redress to which
Landlord may at any time be entitled lawfully, and Landlord may invoke any
remedy (including the remedy of specific performance) allowed at law or in
equity as if specific remedies were not herein provided for. Further,
nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, the damages are to be proved,
whether or not the amount be greater, equal to, or less than the amount of
the loss or damages referred to above.
7.2 Landlord shall in no event be in default in the performance of any of
Landlord's obligations hereunder unless and until Landlord shall have
failed to perform such obligations within thirty (30) days, or such
additional time as is reasonably required to correct any such default,
after notice by Tenant to Landlord properly specifying wherein Landlord has
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