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Sample Business ContractsHome: Sample Business Contracts:
LEASE BETWEEN
ARTURO J. GUTIERREZ AND JOHN A. CATALDO,
TRUSTEES OF NASHOBA WESTFORD REALTY TRUST,
U/D/T DATED APRIL 27, 2000 AND RECORDED
WITH THE MIDDLESEX NORTH REGISTRY OF DEEDS
IN BOOK 10813, PAGE 38
AND
NETSCOUT SYSTEMS, INC.
FOR
WESTFORD TECHNOLOGY PARK WEST
<PAGE>
INDEX
PAGE NO.
ARTICLE I - TERMS DEFINED...........................................................1
1.1 Subjects Referred To...................................................1
1.2 Exhibits...............................................................3
ARTICLE II - DESCRIPTION OF PREMISES................................................4
2.1 Demise of Premises.....................................................4
ARTICLE III - TERM..................................................................5
3.1 Original Term..........................................................5
3.2 Extended Terms.........................................................5
ARTICLE IV - RENT...................................................................5
4.1 Fixed Rent.............................................................5
4.2 Payments...............................................................6
4.3 Market Rent............................................................6
ARTICLE V - OPERATING AND MAINTENANCE COSTS AND REAL ESTATE TAXES...................7
5.1 Common Area Maintenance................................................7
5.2 Tax Expense...........................................................12
5.3 Tax Abatement.........................................................13
ARTICLE VI - LANDLORD'S COVENANTS..................................................14
6.1 Landlord's Covenants During the Term..................................14
6.2 Interruptions.........................................................15
ARTICLE VII - LANDLORD'S WARRANTIES................................................15
ARTICLE VIII - USE OF PREMISES.....................................................16
ARTICLE IX - PREPARATION OF THE PREMISES...........................................16
9.1 Initial Construction..................................................16
9.1.1 Tenant's Work.........................................................20
9.1.2 Tenant's Construction Work............................................22
9.2 Preparation of Premises for Occupancy.................................22
9.2.1 Partial Occupancy and Rent Commencement...............................25
9.3 General Provisions Applicable to Construction.........................26
9.4 Representatives.......................................................26
9.5 Force Majeure.........................................................27
9.6 Arbitration by Architects.............................................27
9.7 Warranty of Landlord's Work and Tenant's Work.........................27
<PAGE>
ARTICLE X - COMPLIANCE WITH LAW....................................................28
10.1 Tenant Compliance.....................................................28
10.2 Notice................................................................28
ARTICLE XI - ALTERATIONS, ADDITIONS AND IMPROVEMENTS...............................28
11.1 Alterations...........................................................28
11.2 Landlord Performance of Alterations...................................29
11.3 Tenant Performance of Alterations.....................................29
11.4 Removal of Alterations................................................29
11.5 General Provisions....................................................29
ARTICLE XII - TENANT'S COVENANTS...................................................30
12.1 Maintenance and Repair................................................30
12.2 Signs.................................................................31
12.3 Entry and Inspection..................................................32
12.4 Miscellaneous.........................................................32
12.5 Safety Appliances.....................................................33
12.6 Loading...............................................................33
12.7 Labor or Materialmen's Liens..........................................33
12.8 Rules and Regulations.................................................33
12.9 Tenant's Covenants....................................................34
ARTICLE XIII - CASUALTY AND CONDEMNATION...........................................34
13.1 Casualty..............................................................34
13.2 Additional Casualty Provisions........................................35
13.3 Condemnation/Eminent Domain...........................................35
13.4 Reservation of Award..................................................36
ARTICLE XIV - RIGHTS OF MORTGAGEES.................................................36
14.1 Priority of Lease.....................................................36
14.2 Limitation on Mortgagee's Liability...................................37
14.3 No Prepayment or Modification, etc....................................37
14.4 No Release of Termination.............................................37
14.5 Mortgagee's Election..................................................37
14.6 Continuing Offer......................................................38
14.7 Submittal Of Financial Statement......................................38
ARTICLE XV - INSURANCE.............................................................38
15.1 Insurance.............................................................38
15.2 Tenant Liability Insurance/Workmen's Compensation.....................39
15.3 Waiver of Subrogation.................................................39
ARTICLE XVI - INDEMNIFICATION......................................................40
16.1 Tenant's and Landlord's Indemnity.....................................40
16.2 Hazardous Materials...................................................41
16.3 Landlord's Indemnification for Hazardous Materials....................42
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ARTICLE XVII - ASSIGNMENT AND SUBLETTING...........................................42
17.1 Tenant Sublet.........................................................42
17.2 Intentionally Deleted.................................................43
17.3 Landlord's Response...................................................43
17.4 Subsidiary Assignment.................................................43
17.5 Sublease and Assignment Rent Differential.............................43
ARTICLE XVIII - TENANT'S PROPERTY..................................................44
18.1 Tenant's Personal Property............................................44
18.2 Removal...............................................................45
18.3 No Lien...............................................................45
ARTICLE XIX - TENANT'S DEFAULT.....................................................45
19.1 Events of Default.....................................................45
19.2 Repossession..........................................................47
ARTICLE XX - NOTICES...............................................................47
ARTICLE XXI - QUIET ENJOYMENT......................................................47
ARTICLE XXII - HOLDING OVER........................................................47
ARTICLE XXIII - MEMORANDUM OF LEASE................................................48
ARTICLE XXIV - SURRENDER OF PREMISES...............................................48
ARTICLE XXV - ESTOPPEL CERTIFICATES................................................48
ARTICLE XXVI - ADDITIONAL PROVISIONS...............................................49
26.1 Broker................................................................49
26.2 Bind and Inure........................................................49
26.3 Provisions Separable..................................................49
26.4 Entire Agreement......................................................50
26.5 Governing Law.........................................................50
26.6 No Waiver.............................................................50
26.7 Rights Separate.......................................................50
26.8 Singular and Plural...................................................50
26.9 Headings..............................................................50
26.10 Parking...............................................................50
26.11 Non-Recourse..........................................................51
26.12 No Surrender..........................................................51
26.13 No Accord and Satisfaction............................................51
26.14 Access................................................................52
26.15 Security Deposit......................................................52
26.16 Rooftop Communication Equipment.......................................53
26.17 Early Termination Option..............................................53
26.18 Landlord's and Tenant's Right to Cure.................................54
26.19 Ground Lease Provisions...............................................54
Signature Page.....................................................................56
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ARTICLE I
TERMS DEFINED
1.1 SUBJECTS REFERRED TO:
Each reference in this Lease to any of the following terms shall mean:
Landlord: Arturo J. Gutierrez and John A. Cataldo,
Trustees of Nashoba
Westford Realty Trust,
u/d/t dated April 27,
2000 and recorded with
the Middlesex North
Registry of Deeds in Book
10813, Page 38
Managing Agent: The Gutierrez Company
Landlord's and Managing Agent's Address: c/o The Gutierrez Company
One Wall Street
Burlington, Massachusetts 01803
Landlord's Representative: John A. Cataldo
Landlord's Construction Representatives: Arthur J. Gutierrez, John A. Cataldo or
P. Agustin Rios
Tenant: NetScout Systems, Inc.
Tenant's Address: Prior to Term Commencement Date:
(for Notice and Billing) 4 Technology Park Drive
Westford, Massachusetts 01886
After Term Commencement Date:
At the Premises
Tenant's Representative: David Sommers
Tenant's Construction Representative(s): David Sommers
<PAGE>
Building: Three (3) story building containing approximately 175,000
rentable square feet (as measured per 1980 AIA Document D
101) to be constructed on the lot containing approximately
twelve (12) acres (the "Lot") described on Exhibit A
attached hereto in accordance with the final Landlord's
Plans and Tenant's Plans (as defined in Article IX hereof)
and any replacements thereof and any alterations and
additions thereto, including the Tenant's Work (as
hereinafter defined), as the same may be expanded pursuant
to Exhibit J hereto. The legal description of the Lot is
attached hereto as Exhibit A-1.
Scheduled Tenant's Design Completion Date: January 15, 2001
Scheduled Term Commencement Date: August 31, 2001
Outside Delivery Date: Per Section 9.2
Term: Twelve (12) years, subject to extension in accordance with
Section 3.2
Term Expiration Date: Twelve (12) years following the Term Commencement Date
determined in accordance with Section 9.2, subject to extension
in accordance with Section 3.2.
Fixed Rent: Years 1-5: $2,878,749.96/Year;
$239,895.83/Month;
($16.45/RSF)
Years 6-12: $3,222,500.00/Year;
$276,875.00/Month;
($18.99/RSF)
[To be adjusted by Section 9.1.1, if applicable]
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Permitted Uses: General office, research and development, light assembly (including
design, assembly, reassembly and testing of electronic products and
components) and ancillary warehousing, as long as such uses are
permitted uses with respect to local zoning bylaws and ordinances.
Premises: The Building.
Broker: Insignia/ESG, Inc.
Special Provisions: Option to Extend .................................Section 3.2
Allowances.............................Section 9.1, Exhibit H
Parking.........................................Section 26.10
Security Deposit................................Section 26.15
Expansion Option....................................Exhibit J
1.2. EXHIBITS The Exhibits listed below in this Section are
incorporated in this Lease by reference and are to be construed as part of this
Lease:
EXHIBIT A Plan Showing Premises, Plan Showing the Lot and the
Park, Plan Showing Common Areas of the Park
EXHIBIT A-1 Legal Description of the Lot
EXHIBIT B-1 Preliminary Base Building Plans
EXHIBIT B-2 Base Building Outline Specifications
EXHIBIT C-1 Form of Certificate of Substantial Completion
EXHIBIT C-2 Form of Certificate of Final Completion
EXHIBIT D Rules and Regulations
EXHIBIT E Office Park Covenants
EXHIBIT F Copy of Deed of Lot
EXHIBIT G-1 Subordination, Non-Disturbance and Attornment Agreement
EXHIBIT G-2 Recognition Agreement
EXHIBIT H Allowances
EXHIBIT I Estoppel Certificate
EXHIBIT J Expansion Option
EXHIBIT K Form of Work Change Order
EXHIBIT L Definition of Cost of the Work and General Conditions
EXHIBIT M Schedule
EXHIBIT N Form of Notice of Lease
EXHIBIT O Sign Specifications
EXHIBIT P Proposed Expanded Building Footprint and Site Plan
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ARTICLE II
DESCRIPTION OF PREMISES
2.1 DEMISE OF PREMISES: In consideration of the rents and covenants
herein stipulated to be paid and performed and upon the terms and conditions
hereinafter specified and subject to and with the benefit of the provisions of
that certain ground lease dated May 11, 2000 and executed by and between Albert
L. Nardone and Anthony B. Nardone, Trustees of Two Littleton Road Realty Trust,
u/d/t dated January 30, 1997 and recorded with the Middlesex North Registry of
Deeds in Book 8425, Page 143 and as Trustees of One Littleton Road Realty Trust,
u/d/t dated December 30, 1991 and recorded with said deeds in Book 5768, Page
183, as "Landlord" and Landlord, as "Tenant", notice of which was recorded in
said Deeds in Book 10832, Page 7 relating to the Lot (the "Ground Lease"),
Landlord hereby demises and lets to Tenant, and Tenant hereby leases from
Landlord, for the respective terms hereinafter described, the Premises as
described in Article I hereof. Tenant shall have the right to expand the
Premises, as set forth on Exhibit J attached hereto.
Tenant shall have, as appurtenant to the Premises, the exclusive right
to use the areas shown on the Plans attached hereto as Exhibit A as "Building
Parking Area", including all loading docks and loading areas, service areas and
the like located on the Lot, all subject to and as further provided in Section
26.10 and elsewhere in this Lease.
Tenant shall have, as appurtenant to the Premises, the right to use in
common with others entitled thereto, subject to reasonable rules and regulations
of general applicability to tenants and owners of other lots in the Westford
Technology Park West (the "Office Park" or the "Park") from time to time made by
Landlord according to Section 12.8 of this Lease of which Tenant is given
notice: (a) all common areas now or hereafter located at the Park, including
without limitation, the Common Areas (the "Common Areas") shown on the Plan of
Common Areas of the Park attached as part of Exhibit A, as such Common Areas may
be amended or modified by Landlord from time to time during the Term hereof, (b)
a right of access to the Premises and parking areas serving the Premises, at all
times, use of all access, service areas, utility lines including those for
electricity, gas, water and sewage disposal, (c) use of all facilities for
drainage of surface water runoff, including storm drainage systems and detention
areas, (d) use of all means of access to and from the Building to the Common
Areas, including without limitation, all grades, driveways, sidewalks and
footways, lighting systems and traffic flow patterns and, if any, all parking
areas designated as common or visitors parking areas for use of the entire
Office Park, and (e) all rights appurtenant to the Lot and the Building created
in the deed attached hereto as Exhibit F.
Landlord reserves the right from time to time without unreasonable
interference with Tenant's use, but subject to Tenant's prior written consent
(which shall not be unreasonably withheld, conditioned or delayed) to alter or
relocate any other common facility, including without limitation, lot lines and
parking areas, provided that substitutions are substantially
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equivalent or better and provided that Landlord does not materially and
adversely affect any of Tenant's rights hereunder.
ARTICLE III
TERM
3.1 ORIGINAL TERM - To have and to hold for a period (the "Term")
commencing on the Term Commencement Date determined in accordance with Section
9.2 (which said date is hereafter referred to at times as the "Commencement
Date") and continuing until the Term Expiration Date, unless sooner terminated
as provided in Section 9.2, Article XIII, Article X1X or Section 26.17, or
unless extended as provided in Section 3.2 or pursuant to Exhibit J.
Landlord shall deliver possession of the Premises on the Commencement
Date in broom clean condition, free of all tenants and occupants and in
accordance with the terms and provisions of Article IX and Article VII (c) of
this Lease.
3.2 EXTENDED TERMS - The Tenant has the option to extend this Lease for
two (2) successive terms of five (5) years each ("Extended Terms" and
separately, the "First Extended Term" and the "Second Extended Term") provided
that there does not exist any Event of Default (as defined in Article XIX
hereof) at such time and provided the Tenant shall give to the Landlord written
notice of the exercise of the first option at least twelve (12) months but not
more than eighteen (18) months prior to the end of the initial Term hereunder,
and as to the second option at least twelve (12) months but no more than
eighteen (18) months prior to the end of the First Extended Term. The Extended
Terms shall be upon the same terms, covenants and conditions hereof, except that
(i) there shall be no additional option to extend after the termination of the
Second Extended Term or the failure to exercise the first option, whichever
shall first occur, (ii) the Fixed Rent for the First Extended Term shall be the
then Market Rent (as hereinafter defined in Section 4.3), and (iii) the Fixed
Rent for the Second Extended Term shall be the then Market Rent (as hereinafter
defined in Section 4.3). Landlord shall, within fifteen (15) days of receipt of
notice of Tenant's election to extend the Term of this Lease, or the First
Extended Term, as the case may be, provide Tenant with notice of the Market Rent
whereupon Landlord and Tenant shall establish the Market Rent for the Extended
Terms in accordance with the provisions of Section 4.3 of this Lease.
ARTICLE IV
RENT
4.1 FIXED RENT - The Fixed Rent for the Premises during the Term shall
be as set forth in Article I of this Lease and shall be payable on the first day
of each calendar month during the Term hereof in equal monthly installments also
as set forth in said Article, except that the rent (including both said Fixed
Rent and additional rent pursuant to Section 5.1 hereof) for any portion of a
calendar month during the Term hereof shall be apportioned for such portions on
a per diem basis based on the number of days in such partial month. The term
"Annual Rent" for any period of twelve calendar months shall mean Fixed Rent
plus any additional rent payable under the Lease with respect to such period.
All rent payable by Tenant pursuant to this Lease shall be paid without setoff,
adjustment, deduction or abatement. Landlord hereby acknowledges
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and agrees that all deposits paid by Tenant to Landlord under that certain
Exclusive Option to Negotiate letter dated June 28, 2000 shall be applied to
Tenant's first and subsequent (if applicable) rental payments due hereunder.
4.2 PAYMENTS - All such monthly payments of Annual Rent shall be made
to Managing Agent as set forth in Article I hereof, or to such other person as
Landlord may from time to time designate by written notice to Tenant. If any
installment of Annual Rent is paid more than five (5) business days after
written notice from Landlord that such rent has not been paid, it shall bear
interest at a rate equal to the prime commercial rate from time to time
established by Fleet Bank, or its successor, plus four percent (4%) per annum
(or, if lower, the maximum rate permitted by law) from the date such installment
was due, which interest shall be immediately due and payable as further
additional rent.
4.3 MARKET RENT - The market rent for the Premises shall be the then
fair market rent for similar space in similar Class A office buildings in the
Route 495 corridor market (including any concessions like rent abatement or
refurbishing allowances being offered to tenants), which such rent (the "Market
Rent") shall be determined as follows:
A. The Market Rent shall be proposed by Landlord within fifteen
(15) days of receipt of Tenant's notice that it intends to exercise its option
to extend the Term pursuant to Section 3.2 hereof (the "Landlord's Proposed
Market Rent"). The Landlord's Proposed Market Rent shall be the Market Rent
unless Tenant notifies Landlord, within fifteen (15) days of Tenant's receipt of
Landlord's Proposed Market Rent, that Landlord's Proposed Market Rent is not
satisfactory to Tenant and that Tenant desires (i) to withdraw its election to
renew, whereupon the provisions of Section 3.2 shall, as to the applicable
Extended Term, be null and void or (ii) to have appraisers determine the Market
Rent ("Tenant's Appraisal Notice"), which notice shall specify the name and
address of the appraiser designated by Tenant. Landlord shall within five (5)
days after receipt of Tenant's Appraisal Notice, notify Tenant of the name and
address of the appraiser designated by Landlord. Such two appraisers shall,
within twenty (20) days after the Landlord's designation of an appraiser, make
their determinations of the Market Rent in writing and give notice thereof to
each other and to Landlord and Tenant. Such two (2) appraisers shall have twenty
(20) days after the receipt of notice of each other's determination to confer
with each other and to attempt to reach agreement as to the determination of the
Market Rent. If such appraisers shall concur in such determination, they shall
give notice thereof to Landlord and Tenant and such concurrence shall be final
and binding upon Landlord and Tenant. If such appraisers shall fail to concur as
to such determination within said twenty (20) day period, they shall give notice
thereof to Landlord and Tenant and shall immediately designate a third
appraiser. If the two appraisers shall fail to agree upon the designation of
such third appraiser within five (5) days after said twenty (20) day period,
then they or either of them shall give notice of such failure to agree to
Landlord and Tenant and if Landlord and Tenant fail to agree upon the selection
of such third appraiser within five (5) days after the appraiser(s) appointed by
the parties give notice as aforesaid, then either party on behalf of both may
apply to the American Arbitration Association or any successor thereto, or on
his or her failure, refusal or inability to act, to a court of competent
jurisdiction, for the designation of such third appraiser.
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1. All appraisers shall be real estate appraisers or consultants who
shall have had at least seven (7) years continuous experience in
the business of appraising or leasing real estate in the suburban
Boston area.
2. The third appraiser shall conduct such hearings and investigations
as he or she may deem appropriate and shall, within ten (10) days
after the date of his or her designation, make an independent
determination of the Market Rent.
3. If none of the determinations of the appraisers varies from the
mean of the determinations of the other appraisers by more than ten
(10%) percent, the mean of the determinations of the three (3)
appraisers shall be the Market Rent for the Premises. If, on the
other hand, the determination of any single appraiser varies from
the mean of the determinations of the other two (2) appraisers by
more than ten (10%) percent, the mean of the determination of the
two (2) appraisers whose determinations are closest shall be the
Market Rent.
4. The determination of the appraisers, as provided above, shall be
conclusive upon the parties and shall have the same force and
effect as a judgment made in a court of competent jurisdiction.
5. Each party shall pay fees, costs and expenses of the appraiser
selected by it and its own counsel fees and one-half (1/2) of all
other expenses and fees of any such appraisal.
Notwithstanding the foregoing or any other language in this Lease to
the contrary, the Fixed Rent for the First Extended Term shall not be less than
the Fixed Rent in effect as of the last day of the original Term and the Fixed
Rent for the Second Extended Term shall not be less than the Fixed Rent for the
First Extended Term.
ARTICLE V
OPERATING AND MAINTENANCE COSTS AND REAL ESTATE TAXES
5.1 COMMON AREA MAINTENANCE - Tenant shall pay to Landlord as
additional rent an additional payment on the first day of each month occurring
during the Term hereof one-twelfth (1/12) of the amount of "Common Area
Maintenance Costs" (as hereinafter defined) for each twelve (12) month period
beginning on each December 1st occurring within the Term, as reasonably
estimated by Landlord from time to time according to this Section 5.1 (Common
Area Maintenance Costs are currently estimated at $236,250.00 ($1.35/sf) for the
year ending December 31, 1999). The "Common Area Maintenance Costs" include the
expenses in the following categories and shall be prorated in accordance with
the prorations set forth within each category:
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1. BUILDING AND LOT RELATED EXPENSES, which shall be allocated one
hundred percent (100%) to Tenant, shall include maintenance of
watertight integrity of the roof, exterior walls, windows and
skylights of the Building (Landlord and Tenant hereby agreeing that
in the event that any item for maintenance of the watertight
integrity not covered by warranty exceeds $5,000, then Tenant shall
have the right to require Landlord to obtain three (3) competitive
bids from a list of subcontractors mutually agreed upon by
Landlord, Tenant and Landlord's manufacturer of the item so being
maintained); monthly payment of the annual amortized amount of
Landlord's cost of Capital Replacements, as defined in Section 6.1,
for any capital items purchased by Landlord in accordance with
Section 6.1; maintenance and repair of sewer (i.e. on site sewer
system), utility, fire main and fire hydrant facilities, and
drainage facilities exclusively serving the Building; maintenance
of the Building entrance sign; maintenance, repair and striping,
snow removal and sanding of the parking and loading area(s) and
driveways, walkways and Building entrances on the Lot;
fertilization, mowing, and watering of lawns on the Lot and
landscaping and care of shrubbery and general grounds upkeep of the
Lot; changing of street-lamp lights, walk-way lights, and parking
lights on the Lot, and keeping same in proper working condition;
and any other services, repairs, or maintenance performed solely
for the benefit of the Building; Building management supervision
fees equal to no more than two and one-half percent (2.5%) of gross
collected rent; and insurance premiums procured by Landlord on
Tenant's behalf as specified in Article XV;
2. TRAFFIC RELATED EXPENSES, which shall be allocated on the basis of
the ratio of the number of parking spaces exclusively for Tenant's
use under this Lease to the aggregate total number of parking
spaces within the Office Park, shall include snow removal and
sanding of common drives and parking lots, maintenance and repair
of the Office Park entrance signs, maintenance and repair of Office
Park lighting, traffic signals, and traffic control personnel
required for the Office Park, maintenance and repair of Office Park
walks, and Office Park non-exclusive parking and any other traffic
or common Office Park roadway or walk-way related expenses;
3. LANDSCAPING/DRAINAGE/OTHER GENERAL OFFICE PARK RELATED EXPENSES,
which shall be allocated on the basis of the ratio of the square
footage of the Building to the aggregate square footage of all
completed buildings including the Building in the Office Park, as
such buildings are completed from time to time, shall consist of
the maintenance and repair of sewer, utilities, and drainage
facilities, maintenance and repair of detention and fire main and
fire hydrant facilities which service the Office Park generally and
are not exclusive to any single building within the Office Park;
fertilization, mowing, and watering of lawns and landscaping and
care of shrubbery and general grounds upkeep of access drives,
entrance areas and other such portions of the Office Park the
landscaping of which
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actually and substantially benefit the Premises; and liability
insurance costs for the Common Areas of the Office Park;
4. SEWER TREATMENT PLANT EXPENSES, including real estate taxes
associated with sewer treatment plant land and buildings, shall
consist of the expenses of operating, maintaining and repairing the
sewage treatment plant, including without limitation, the annual
amortized portion for Capital Replacements or improvements to the
plant, which expenses shall be allocated on the basis of the ratio
of the square footage of the Building to the aggregate square
footage of all completed buildings including the Building on all
lots in the Park, as such buildings are completed and connected for
service from time to time to the sewer treatment plant.
Notwithstanding any contrary provision of this Lease, if Landlord
incurs any Common Area Maintenance Cost that is properly classifiable as a
capital expenditure according to generally accepted accounting principles and
good building management practices and the regulations and directives of the
Internal Revenue Service, except for Building structural repairs and
replacements which could be classified as capital expenditures, then such Common
Area Maintenance Cost shall be amortized at a commercially reasonable discount
rate over its useful life according to such principles, practices, regulations
and directives, and only the annual amortized portion shall be included in
Common Area Maintenance Costs for any twelve (12) month period within the Term.
Notwithstanding anything to the contrary in this Lease contained,
Tenant shall not be required to pay any Common Area Maintenance Costs
attributable to:
1. Structural repairs and replacements (including any structural
capital expenditures as aforesaid) which are the responsibility of
Landlord as set forth in the first full paragraph of Section 6.1;
repairs and replacements, structural or otherwise, covered by
warranties or insurance; and repairs or other work occasioned by
fire or other casualty or by the exercise of eminent domain;
2. Leasing commissions, attorneys' fees, costs and disbursements and
other expenses incurred in connection with negotiations or disputes
with other tenants, occupants or prospective tenants or occupants
of the Office Park;
3. Interest, principal, ground rent, or other payments under any
mortgage, ground lease or other financing of the Lot or the Office
Park;
4. Any advertising or promotional expenditures;
5. Services or work provided for other tenants and occupants of the
Office Park and not substantially benefiting Tenant on a
commensurate basis and any expense for which Landlord is entitled
to be reimbursed directly by any such other tenant or tenants;
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6. Overhead or profit increment paid to subsidiaries or affiliates of
Landlord for services on or to the Premises to the extent that the
costs of such services exceed competitive costs of such services
were they not so rendered by a subsidiary or affiliate.
7. Expenses related to salaries, wages, benefits and other expenses of
executives, principals, administration staff and other employees of
Landlord or Landlord's Management Agent not involved directly in
the operations of the Building or Office Park;
8. Expenses related to leasehold improvements made in connection with
the preparation of any portion of the Building or Office Park or
occupancy by a new or existing tenant which is not generally
beneficial to all tenants of the Building;
9. Expenses related to efforts to procure new tenants for other
buildings or premises located in the Office Park, including
advertising expenses, leasing commissions and attorneys fees;
10. Expenses related to Landlord's general overhead not directly
related to the management or operations of the Building or Office
Park;
11. Expenses related to depreciation of the Building and buildings in
the Office Park;
12. Expenses related to Landlord or Landlord's Managing Agents breach
or violation of a law, lease or other obligations, including fines,
penalties and attorney's fees;
13. Expenses related to compensation paid to employees or other persons
in connection with commercial concessions operated by Landlord or
Landlord's Managing Agent;
14. Expenses related to fees for licenses, permits or inspections
resulting from the act or negligence of Landlord, Landlord's
Management Agent or any other tenant of the Office Park;
15. Expenses related to any items with respect to which Landlord
receives reimbursement from insurance proceeds or from a third
party;
16. Costs and expenses of construction related to an expansion of the
rentable area of the Building or Office Park or the parking areas
serving the Building or Office Park and any landscaping in
connection therewith;
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17. Expenses related to or costs or charges properly chargeable or
attributable to a particular occupant, tenant or tenants of the
Office Park;
18. Expenses related to any utility or other service used or consumed
by other tenants or occupants of the Office Park;
19. Expenses related to environmental testing, remediation and
compliance, Landlord and Tenant hereby agreeing that this exclusion
is not intended to limit the provisions of Section 16.2 of this
Lease;
20. Expenses related to compliance by Landlord with laws existing as of
the date of this Lease, including without limitation the American
with Disabilities Act and the regulations of the standards
thereunder, except to the extent that any such non- compliance was
created by Tenant's use of the Premises;
21. Building management supervision fees exceeding two and one-half
percent (2.5%) of the gross collected rent; and
22. Real estate taxes on other lots and buildings in the Office Park.
Tenant shall be solely responsible for paying all utilities including,
but not limited to electricity, water, gas and sewer, consumed in the Building
or on the Lot, and the electrical, water and gas bills shall be placed in the
Tenant's name and billed directly by the utility to Tenant. If Tenant fails to
pay any such bills and such failure continues after written notice to Tenant and
the expiration of the applicable grace period, Landlord shall have the right to
pay such bills, and to recover such payment from Tenant with any interest and/or
penalties chargeable thereon as additional rent. Written notice to Tenant and
the expiration of the applicable grace period as aforesaid will not be
applicable in the case of emergency with respect to potential damage to persons
or property.
Tenant recognizes that Landlord may retain the services of such
independent contractors or affiliates as may be necessary for Landlord to
fulfill its obligations hereunder. Landlord shall provide to Tenant within one
hundred twenty (120) days of the end of each calendar year an annual accounting,
in writing, of actual Common Area Maintenance Costs for such calendar year, and
Landlord shall maintain complete books and records relating to Common Area
Maintenance Costs sufficient to verify these charges and Tenant, its accountants
and agents shall have access to such books and records at reasonable times with
prior written notice. If the total of Tenant's estimated payments on account of
Common Area Maintenance Costs for such calendar year exceeds the actual Common
Area Maintenance Costs for such year, Landlord shall repay to Tenant such excess
within thirty (30) days after the delivery to Tenant of such annual accounting.
If the total of Tenant's estimated payments on account of Common Area
Maintenance Costs for such calendar year falls short of the actual Common Area
Maintenance Costs for such year, Tenant shall pay to Landlord such shortage
within thirty (30) days after Tenant's receipt of such accounting.
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Based on reasonable estimates of increases in costs covered by this
Section, Landlord reserves the right to adjust the amount of Tenant's estimated
payments on account of Common Area Maintenance Costs annually at the time of
such accounting effective on the first day of each calendar year during the Term
hereof upon thirty (30) days' prior written notice to Tenant and upon providing
Tenant with documentation supporting such estimates. Any such change shall be
effective retroactively to the first day of the calendar year during which the
adjustment is made. Notwithstanding anything contained herein, Landlord reserves
the right to separately invoice Tenant for Tenant's proportionate share of any
actual Common Area Maintenance Costs which exceeds the amount for such item in
Landlord's then current estimate of Common Area Maintenance Costs by greater
than five percent (5%). Any such change shall be effective retroactively to the
first day of the calendar year during which the adjustment is made. Except for
the management fee set forth herein, none of such Common Area Maintenance Costs
shall exceed amounts which are charged for such expenses in the Westford,
Massachusetts area for property of the same general type and size as in the
Office Park. Except for the management fee set forth herein, Landlord agrees
that all services to be provided as part of Common Area Maintenance Costs shall
be obtained by Landlord at commercially reasonable, competitive market rates
consistent with the operation of comparable Class A office buildings in the
Route 495 corridor market.
5.2 TAX EXPENSE - Tenant shall pay directly to the relevant taxing
authority (or to Landlord if required by Landlord's mortgagee), real estate
taxes assessed with respect to any period included in the Term hereof (on a pro
rata basis at the beginning or end of the Term) attributable to the Lot and the
Building and improvements and any assessment, levy, penalty (arising directly
from Tenant's acts), imposition or tax (including any tax which may replace or
be assessed in lieu of any of the foregoing), and any interest due thereon,
assessed with respect to any period included in the Term by any authority and
agency having the direct power to tax against the Lot and the Building (the "Tax
Expense"); provided, however, (i) if the amount of any real estate taxes or any
such assessment, levy, penalty (arising directly from Tenant's acts), imposition
or tax may lawfully be paid in installments, Tenant may pay such amount over the
maximum period permitted by law, and only the portion of such amount required to
be paid with respect to any period in the Term shall be included in the Tax
Expense for such period, (ii) if the Term includes a partial fiscal tax year at
its beginning or end, the real estate taxes or any such assessment, levy,
penalty (arising directly from Tenant's acts), imposition or tax for such tax
years shall be prorated according to the fraction of the total number of days in
such tax year that are within the Term, and only such prorated portion shall be
included in the Tax Expense, and (iii) Tenant shall have no obligation to pay
any assessment, levy, penalty, imposition or tax arising out of a breach or
violation by Landlord or any previous owner or occupancy of the Lot or the
Building of any law or obligation. The term "real estate taxes" means the real
estate taxes, betterment assessments, water and sewer use rents, rates or
charges, and such other governmental charges and impositions which are or may be
charged, levied, assessed, imposed or become due and payable with respect to the
Lot, Building, and other improvements comprising the Premises. All such payments
shall be made no later than ten (10) days prior to the date when interest or
penalty would accrue for non-payment or ten (10) days after Landlord provides
Tenant with the real estate tax bill, whichever is later. Tenant shall furnish
to Landlord copies of such bills and receipts evidencing payment for Landlord's
records. Real estate taxes are currently estimated at $166,250.00 for fiscal
year 2000 ($.95/sf).
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Tenant shall also pay all personal property taxes for Tenant's personal
property on the Premises or used in connection therewith. To the extent
permitted by law, Tenant shall pay, when due, taxes levied or assessed against
Landlord by reason of this Lease on the rental or any other payment required to
be made hereunder whether said taxes are assessed solely on the rental payment
hereunder or jointly with other rentals collected pursuant to any law or
ordinance now existing or hereafter enacted (other than taxes levied on the net
income of Landlord derived therefrom as part of a state or federal income tax
law applicable to Landlord's income, and any income, franchise, gross receipts,
corporation, capital levy, excess profits, revenue, rent, inheritance,
devolution, gift, estate, payroll or stamp tax by whatsoever authority imposed
or howsoever designated ox .any tax upon the sale, transfer and/or assignment of
Landlord's title or estate which at any time may be assessed against or become a
lien upon all or any part of the Premises or this leasehold). Notwithstanding
the foregoing, Tenant shall have no responsibility for late payment penalty or
interest if Tenant's payment was timely as above provided.
5.3 TAX ABATEMENT - Tenant shall have the right to contest in good
faith by appropriate proceedings diligently pursued the imposition or amount of
any real estate taxes assessed against the Lot or the Building or such personal
property taxes payable by it hereunder, including the right on behalf of, and in
the name of the Landlord, to seek abatements thereto. The Landlord shall
reasonably cooperate with Tenant, at Tenant's sole expense, in any such contest
or abatement proceedings. In the event that Tenant determines not to contest
such taxes and Landlord desires to file such contest, Landlord shall give
written notice of that fact to Tenant and shall have the sole right as to such
tax bill to contest in good faith by appropriate proceedings diligently pursued
the imposition or amount of any real estate taxes assessed against the Lot or
the Building or such other taxes payable by Tenant hereunder, including the
right to seek abatements thereto. In such event, the Tenant shall reasonably
cooperate with Landlord, at Landlord's sole expense, in any such contest or
abatement proceedings. Any tax abatement or rebate received shall be allocated
to the parties in the same proportion as payment.
If Landlord shall receive on behalf of the Lot or the Building a rebate
or abatement on any tax paid by Tenant, then after deducting therefrom any costs
reasonably incurred by Landlord in obtaining such rebate or abatement, all of
such net rebate or abatement relating to the Lot or the Building or to personal
property taxes assessed against the Tenant's personal property shall be returned
to Tenant to the extent that such rebate or abatement relates to payment made by
the Tenant and not reimbursed by Landlord. If Tenant shall receive on behalf of
the Lot or the Building a rebate or abatement on any tax paid by Tenant, then
after deducting therefrom any costs reasonably incurred by Tenant in obtaining
such rebate or abatement, all of such net rebate or abatement related to the
Lot, the Building or to personal property taxes assessed against the Tenant's
property shall be retained by Tenant, as its sole property, to the extent such
rebate or abatement relates to a payment made by Tenant and not reimbursed by
Landlord. The remaining portion of such net rebate or abatement shall promptly
be returned to Landlord.
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ARTICLE VI
LANDLORD'S COVENANTS
6.1 LANDLORD'S COVENANTS DURING THE TERM - Landlord shall be
responsible during the Term, at Landlord's expense and not as a cost allocable
to Tenant under Section 5. 1, to perform necessary repairs and replacements to
maintain the structural integrity of the Building, including but not limited to
the roof, exterior walls, windows and skylights, but excluding the cost of the
watertight integrity thereof not covered by warranties (except that such repairs
or replacements shall not be required in the case of settling or sagging of the
within standard engineering tolerance provided that the settling and sagging
does not affect the surface or structural integrity of the Building or render
the Building unsafe or unfit for normal use). In addition, Landlord agrees to
extend, at its sole cost and expense, the warranty on the roof of the Building
for ten (10) additional years, such that the roof shall be warranted for twenty
(20) years, and to extend the warranty on the windows to ten (10) years (in the
aggregate). Such warranty, however, shall be held in Landlord's name and shall
not be assigned to Tenant.
Landlord shall also be responsible for (i) all exterior maintenance,
repairs and replacements necessary to keep in good condition and working order
the trees, shrubs, plants, landscaping, parking areas, driveways and walkways on
the Lot, including, but not limited to, all lighting and other fixtures and
equipment serving such parking areas, driveways and walkways, and the onsite
septic system, (ii) providing the services and performing the maintenance work
set forth in Section 5.1 and Article XIII hereof, (iii) compliance with all laws
applicable to the Premises, the Lot or Office Park, (iv) all Capital
Replacements (as hereinafter defined) to the heating, ventilating, air
conditioning, plumbing, electrical, emergency, elevator and other mechanical
equipment and systems of the Premises (collectively, the "Premises Systems"), so
long as such replacement was not required due to negligence or excessive use of
such capital items by Tenant and (v) performing necessary repairs and
replacements to maintain the watertight integrity of the Building, including but
not limited to the roof, exterior walls, windows and skylights. "Capital
Replacement" shall mean any replacement, the cost of which is classifiable as a
capital expenditure as described in Section 5.1. Landlord will be commercially
reasonable and shall use good building management standards in making Capital
Replacement decisions. Landlord shall make all of such repairs and replacements
necessary to maintain the foregoing in good condition and working order and in
compliance with all laws, and all costs and expenses therefor (i.e. under this
Section 6.1) shall be chargeable to Tenant pursuant to the provisions of Article
V, except as otherwise expressly provided in Section 5.1 or this Section 6.1.
All other repairs and maintenance, except as specifically otherwise provided
herein, shall be the responsibility of the Tenant.
In the event that Tenant gives notice to Landlord of a condition which
Tenant believes requires Landlord's repairs or a condition which, if left
uncorrected, will necessitate Landlord's repair, then, in accordance with the
terms of this Section 6.1, Landlord shall respond promptly to investigate such
condition, and, if such repairs are Landlord's obligation hereunder, Landlord
shall commence promptly to repair same and to diligently complete said repair.
Tenant agrees during the Term to provide Landlord notice as soon as reasonably
possible of any condition known to Tenant which might require, or if left
uncorrected will necessitate Landlord's repair pursuant to this Section 6.1.
Tenant shall have the right to require, at reasonable times and with
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reasonable notice, a representative of Landlord to inspect the Premises for
repairs which may be the responsibility of Landlord.
6.2 INTERRUPTIONS - 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 power losses or shortages to the Building or from
the necessity of Landlord's entering the Premises, subject to Section 12.3, for
any of the proposes in this Lease authorized, or for repairing the Premises or
any portion of the Building or improvements on the Lot or within the Office
Park, provided, however, (i) Landlord shall use reasonable efforts to remedy
such losses or shortages as quickly as possible and (ii) Landlord, in making any
such entry, repairs or improvements shall not materially interfere with Tenant's
use and occupancy of the Premises. In case Landlord is prevented or delayed from
making any repairs, alterations or improvements, or furnishing any service or
performing any other covenant or duty to be performed on Landlord's part, by
reason of any cause beyond Landlord's reasonable control, Landlord shall not be
liable to Tenant therefor, nor, except as expressly otherwise provided in
Article XIII hereof, shall Tenant be entitled to any abatement or reduction of
rent by reason thereof, nor shall the same give rise to a claim in Tenant's
favor that such failure constitutes actual or constructive, total or partial,
eviction from the Premises. Landlord agrees to provide Tenant with reasonable
advance notice prior to entering the Premises, except in the case of emergency.
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 that (i) the Landlord shall complete repairs as soon as
reasonably possible and (ii) Landlord makes reasonable efforts to end the
stoppage. Except in case of emergency repairs, Landlord will give Tenant
reasonable advance notice of any contemplated stoppage and will use reasonable
efforts to avoid interference with Tenant's use and occupancy of the Premises.
ARTICLE VII
LANDLORD'S WARRANTIES
Landlord warrants and represents and covenants and agrees as follows:
(a) Landlord is the Tenant under the Ground Lease (as defined in
Section 2.1 hereof).
(b) Landlord has the power and authority to enter into this Lease and
perform the obligations of Landlord hereunder. This Lease and all other
documents executed and delivered by Landlord constitute legal, valid, binding
and enforceable obligations of Landlord, and there are no claims or defenses,
personal or otherwise, or offsets whatsoever to the enforceability or validity
of the Lease.
(c) Landlord agrees that all HVAC, mechanical and electrical equipment
in the Building shall, on the Term Commencement Date, be in good operating
condition.
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ARTICLE VIII
USE OF PREMISES
Tenant may use the Premises only for the Permitted Uses specified in
Section 1.1 of this Lease.
ARTICLE IX
PREPARATION OF THE PREMISES
9.1 INITIAL CONSTRUCTION
A complete set of final base building and Lot improvements plans and
construction drawings and specifications, such drawings and specifications to
include a detail schedule of core base Building finish items such as, but not
limited to, carpets, doors, hardware, ceiling grids/tiles, lavatory fixtures,
light fixtures, window blinds, lobby finishes and paint/wall coverings and
based on the preliminary base building plans, including, without limitation,
floor plans, elevations and site plan(s) (collectively, the "PBBP") and Base
Building Outline Specifications attached hereto as Exhibits B-1 and B-2,
respectively (collectively, the "Landlord's Plans") shall be prepared by
Landlord, at its sole cost and expense (all of such work shown on the
Landlord's Plans being collectively referred to as the "Landlord's Work"). In
the event of differences between the PBBP or the Landlord's Plans and the
Base Building Outline Specifications, the Base Building Outline
Specifications shall govern and control until the Landlord's Plans are
prepared. Landlord and Tenant agree to work together with Landlord's
architect, Symmes, Maini and McKee Associates, Inc. in order to achieve a
design that meets the standard set forth below. Furthermore, Landlord agrees
to use good faith and diligent efforts to deliver the Landlord's Plans to
Tenant on or before September 21, 2000, with the exception of electrical,
plumbing, and HVAC plans which shall be developed after said September 21,
2000 and shall, if coordinated with Tenant's MEP engineer, shall be delivered
to Tenant in accordance with Tenant's design development schedule, otherwise
such electrical, plumbing and HVAC plans shall be delivered by October 15,
2000 if Landlord elects not to use Tenant's MEP engineer. Upon receipt,
Tenant shall have ten (10) business days to comment upon the Landlord's
Plans. Landlord and Tenant shall use reasonable efforts to reach agreement on
the Landlord's Plans as soon thereafter possible. Tenant's approval of
Landlord's Plans shall not be unreasonably withheld, conditioned or delayed.
In reaching agreement, Landlord and Tenant shall each approve portions of the
Landlord's Plans that are in acceptable form and shall note their respective
objections to the portions that are unacceptable to each of them so as to
enable Landlord to continue construction and order materials in a timely
manner. Provided that the PBBP are finalized and attached to this Lease upon
execution of this Lease by Tenant, in the event that Landlord's Plans conform
with the PBBP, but Tenant does not approve the Landlord's Plans within ten
(10) business days of receipt thereof from Landlord, then the Scheduled Term
Commencement Date shall be extended for a number of days equal to the number
of Tenant Plan Delay Days, as such term is hereinafter defined. The number of
Tenant Plan Delay Days are defined as and shall be calculated by determining
the actual number of days as certified by Landlord and its architect that the
Term Commencement Date was delayed by such Tenant's failure to approve the
Landlord's Plans within the required ten (10) business days. Landlord agrees
to provide Tenant with written notice of such determination, such notice to
include reasonable detail describing the cause of the delay
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and the number of Tenant Plan Delay Days as certified by Landlord and its
architect. If Tenant and Tenant's Architect (as hereinafter defined) disagree
with the existence or calculation of Tenant Plan Delay Days as determined by
Landlord and its architect, then Tenant shall, within ten (10) business days of
receipt of Landlord's notice, notify Landlord of its disagreement, whereupon the
dispute shall be determined pursuant to the arbitration procedures described in
Section 9.6 hereof.
Landlord and Tenant hereby acknowledge and agree that, except as
otherwise set forth herein, following approval by Landlord and Tenant (which
shall be in writing as hereinafter provided), no amendments, modifications or
changes shall be made to the Landlord's Plans, the PBBP and/or the Base Building
Outline Specifications (during or after the permitting process) without Tenant's
prior written approval in each instance, which such approval shall not be
unreasonably withheld or delayed; provided, however, no such prior approval of
Tenant shall be required if the proposed amendments, modifications or changes
are, in Landlord's reasonable opinion (i) non-material in nature, (ii) replaced
by substantially equivalent or better items and at all times equal to or better
than that of the building located at 4 Technology Park Drive, Westford,
Massachusetts, and (iii) do not adversely affect the Premises. Without limiting
the foregoing, Landlord shall provide Tenant with prior written notice of all
proposed amendments, modifications or changes to the Landlord's Plans.
A complete set of construction plans and specifications for Tenant's
Work (as hereinafter defined) shall be prepared by Tenant's Architect, as
hereinafter defined (collectively, the "Tenant's Plans"). The Tenant's Plans
shall be furnished to Landlord as herein provided. Landlord and Tenant hereby
acknowledge and agree that Tenant shall notify Landlord within two (2) weeks
following the date of this Lease of its selection of an architect to be Tenant's
Architect for preparation of Tenant's Plans, and the costs of services of such
Tenant's Architect shall be borne solely by Tenant. Tenant's Architect (and
Tenant's Representatives) shall be actively involved in the design decisions and
shall be allowed reasonable access to the Lot and the Premises during
construction to monitor Landlord's compliance with the terms and provisions of
this Lease. Landlord and Tenant hereby further agree that Tenant shall be solely
responsible for coordinating with Tenant's Architect for the timely preparation
of Tenant's Plans in accordance with the terms and provisions of this Section
9.1. Attached as Exhibit M is a schedule (the "Schedule") setting forth the
respective dates by which Landlord and Tenant anticipate that (i) Landlord's
Plans shall have been delivered to and approved by Tenant, (ii) Tenant's Plans
shall have been delivered to and approved by Landlord, and (iii) certain
portions of Landlord's Work and Tenant's Work shall be substantially completed.
The parties agree to cooperate with each other and to exercise reasonable
efforts to complete the tasks described in the Schedule by the respective dates
set forth therein, Landlord and Tenant hereby further agreeing that, unless
otherwise expressly set forth herein, failure to meet any of such dates on the
Schedule shall not constitute a default or a delay of any type hereunder.
Tenant shall deliver the Tenant's Plans to the Landlord by not later
than the Scheduled Tenant's Design Completion Date, provided, however, that
Tenant furnishes to Landlord by not later than October 1, 2000 (i) any such
information to be contained in the Tenant's Plans that affects Landlord's Work,
and (ii) a list of "long lead items", including specifications thereto, for
those certain portions of Tenant's Work as determined by Landlord and Tenant
prior to such
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time. Notwithstanding the preceding sentence, Landlord and Tenant hereby
acknowledge and agree that the Scheduled Tenant's Design Completion Date and
said date of October 1, 2000 shall be extended for a number of days equal to the
number of actual days Landlord delayed delivering the Landlord's Plans and, so
long as such delay was not due to a Tenant's Delay as hereinafter defined, such
electrical, HVAC and plumbing plans described in the first paragraph of this
Section 9.1.1, to Tenant beyond the time periods hereinabove provided. Tenant
shall permit Landlord to review and provide input during the preparation of
Tenant's Plans. Upon receipt, Landlord shall have ten (10) business days to
comment upon the Tenant's Plans. Landlord's notice to Tenant shall include
reasonable detail describing the reason for such comment and/or the extent of
the incompatibility with reasonable specificity. Landlord and Tenant shall use
reasonable efforts to reach agreement on the Tenant's Plans within ten (10) days
of Tenant's receipt of Landlord's comments thereto. In reaching such agreement,
Landlord and Tenant shall each approve portions of Tenant's Plans that are
acceptable and shall note their respective objections to the portions that are
unacceptable to each of them so as to enable Landlord to continue construction
and order materials in a timely manner. If Tenant fails to deliver Tenant's
Plans (or any modifications thereto) by the date set forth above, Landlord may
require by prompt written notice to Tenant a reasonable adjustment in the
Scheduled Term Commencement Date for each day of actual delay. Any such
extension in time, whether mutually agreed to by Landlord and Tenant or
determined by their respective architects in the event of dispute pursuant to
Section 9.6, shall result in Tenant's Plan Delay Days as hereinbefore
determined. In addition, Landlord will not approve Tenant's Plans which involve
any construction, alterations or additions requiring unusual expense to readapt
the Premises to normal office use on the Term Expiration Date, unless Tenant
first gives assurances reasonably acceptable to Landlord that such readaptation
shall be made prior to such termination without expense to Landlord. All
revisions and modifications to the Tenant's Plans shall be made promptly by
Tenant and revised sets of Tenant's Plans shall be forthwith furnished to
Landlord upon Tenant's receipt thereof, Landlord hereby agreeing to inform
Tenant during the plan approval process and, in any event, prior to the
installation thereof, of any such items that may require unusual expense to
readapt the Premises as aforesaid. All revisions and modifications to the
Tenant's Plans shall be made promptly by Tenant and revised sets of Tenant's
Plans shall be forthwith furnished to Landlord upon Tenant's receipt thereof.
Landlord and Tenant hereby further agree to acknowledge in writing when final
approval by Landlord and Tenant of Tenant's Plans (and Landlord's Plans) has
occurred. Landlord's approval of Tenant's Plans shall not be unreasonably
withheld, conditioned or delayed.
Landlord shall have twenty (20) days after final approval of Tenant's
Plans and Landlord's receipt of final and complete sets of approved Tenant's
Plans, which such final approval has been acknowledged in writing by Landlord
and Tenant as aforesaid, to price the cost of Tenant's Work (as hereinafter
defined) in accordance with the second to last paragraph of Section 9.1.1.
Landlord and Tenant shall cooperate during the above time periods so
that each party makes the other aware of their progress with respect to the
foregoing plans, selections and pricing, as well as timing, availability or cost
constraints of Tenant's selections or specifications and proposed alternates.
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Landlord shall cause, at its sole cost and expense, except as expressly
set forth in this Lease, the Premises and all improvements on the Lot to be
completed in accordance with Landlord's Plans and Tenant's Plans, all of such
work to be performed by Landlord's general contractor, Gutierrez Construction
Co., Inc. After final approval of Landlord's Plans and Tenant's Plans (i.e. one
hundred percent (100%) completed) by Landlord and Tenant, the Tenant may request
changes to Landlord's Work or Tenant's Work (as applicable) by altering, adding
to, or deducting from Landlord's Work or Tenant's Work (as applicable) as set
forth in the agreed form of Landlord's Plans or Tenant's Plans, as applicable
(each such requested change is referred to herein as a "Change Order"). Landlord
shall perform Change Orders subject to the provisions hereinafter provided. A
Change Order requested by Tenant in Landlord's Work (or in Tenant's Work as such
term is defined in Section 9.1.1 hereof) which affects Landlord's Work may also
necessitate an adjustment in the Scheduled Term Commencement Date (as defined in
Section 9.2 hereof) and may result in Tenant Alteration Delay Days (as
hereinafter defined), in accordance with and subject to the terms and conditions
set forth below. Landlord shall notify Tenant in writing if such requested
Change Order shall result in Tenant Alteration Delay Days, and therefore an
adjustment in the Scheduled Term Commencement Date. In addition, Landlord agrees
to provide Tenant, upon Tenant's request, with sufficient itemization and
back-up documentation to facilitate analysis and to confirm the cost of any such
changes in the Landlord's Work or the Tenant's Work initiated by Tenant. Tenant
shall pay to Landlord an amount equal to the actual cost (as defined in Section
9.1.1 hereof) of any such changes initiated by Tenant, less any appropriate
credits for any Landlord's Work deleted, (hereinafter, the "Net Additional Cost
of Landlord's Work"). The Net Additional Cost of Landlord's Work shall be due
and payable to Landlord in the manner provided for in Section 9.1.1 hereof.
In the event that Tenant requests a Change Order which would, due to
materials or equipment having long delivery times or due to resulting sequencing
delays, and notwithstanding Landlord's diligent efforts, result in a delay in
the Term Commencement Date, then Tenant shall be deemed to have agreed that it
will pay Fixed Rent (as provided in Section 4.1) and additional rent hereunder
for a number of days equal to the actual number of days (the "Tenant Alteration
Delay Days") as certified by Landlord and its architect, by which the Term
Commencement Date would be delayed by such alterations or additions, giving due
consideration to Landlord's obligation to use diligent efforts to accelerate
construction to make up for lost time due to delays. Landlord agrees to
promptly, prior to Tenant's approval of any Change Order, provide Tenant with
written notice of such determination, such notice to include reasonable detail
describing the cause of the delay and the number of Tenant Alteration Delay Days
as certified by Landlord and its architect. Should Tenant and Tenant's Architect
disagree with the calculation of Tenant Alteration Delay Days as hereinabove
determined, then such disagreement shall be resolved pursuant to the provisions
of Section 9.6 hereof.
All Tenant improvements, changes and additions shall be part of the
Premises (and shall remain therein at the end of the Term), except for Tenant's
business fixtures, equipment and personal property (which such personal property
shall include, without limitation, demountable partitions, equipment and
telephone or computer systems except for telephone and computer systems wiring),
all of which fixtures, equipment and personal property shall remain the property
of the Tenant and shall be removed at the expiration of the Term; and such other
items shall be removed or left as the Landlord and Tenant agree in writing at
the time of Landlord's approval of
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the plans and specifications therefor. Tenant agrees to repair, at its sole cost
and expense, any damage to the Premises caused by any such removal by Tenant in
accordance with this paragraph.
9.1.1 TENANT'S WORK.
So long as Landlord has approved Tenant's Plans in writing, as
hereinabove referenced, and so long as Landlord receives the complete Tenant's
Plans (i.e. one hundred percent (100%) completed) by the Scheduled Tenant's
Design Completion Date (which such date may be extended as aforesaid), Landlord
and Tenant agree that Landlord's general contractor will construct the tenant
improvements set forth on the Tenant's Plans (hereinafter "Tenant's Work") with
respect to the Premises under a "Guaranteed Maximum Price" contract ("GMP"),
which shall include an amount for Landlord's contractors fee of six percent (6%)
of cost plus seven percent (7%) of cost for General Conditions (defined in
Exhibit L), whereupon all savings shall be divided equally between Landlord and
Tenant. Tenant shall have access to Landlord's books and records and may review
all bids and contracts to ensure appropriate savings are achieved. In order to
provide for payment by Tenant of the cost of Tenant's Work, the Net Additional
Cost of Landlord's Work, and any additional costs due to Change Orders provided
for hereunder, less said allowance(s), Tenant expressly covenants with Landlord
that Tenant agrees to pay Landlord, or its contractor, as the case may be,
within ten (10) business days of receipt of each of Landlord's monthly
requisitions therefor (not to be submitted more than once per calendar month),
the amount of such requisition for the Tenant's Work, the Net Additional Cost of
Landlord's Work and/or any Change Order, less such allowance(s) as aforesaid,
performed in the Premises for preceding month based on a percentage of
completion basis; provided, however that Tenant shall retain ten percent (10%)
of such monthly amounts due from Tenant to Landlord hereunder until Substantial
Completion of the Premises has been achieved as hereinafter provided in Section
9.2 and Landlord has provided to Tenant reasonably satisfactory evidence that
all liens have been released or lien waivers have been provided. Notwithstanding
any provisions of this Lease to the contrary, it is expressly agreed that all
costs of Tenant's Work shall be paid for out of the allowance(s) first and that
Tenant shall not be required to make any contribution to such costs and/or any
Net Additional Cost of Landlord's Work and/or any cost of Change Orders until
the full amount of the allowance(s) is expended.
Notwithstanding the foregoing, it is hereby acknowledged and agreed
that Landlord shall use good faith efforts to obtain third party permanent
non-recourse financing for the financing of an additional allowance equal to Ten
Dollars ($10.00) per rentable square foot, or $1,750,000, to be applied towards
Tenant's Work, which shall be subject to the financeability of Tenant. If such
financing is obtained, Landlord agrees to notify Tenant and to amortize such
applicable amount into the Fixed Rent due hereunder over the initial Term
hereunder, at a rate equal to nine and one-half percent (9.5%) per annum.
Landlord and Tenant hereby further agree to amend the Fixed Rent set forth in
Article I of this Lease so as to reflect any amount so provided to Tenant as an
additional allowance by Landlord hereunder.
At Tenant's request, each requisition shall include copies of all
subcontractor's and supplier's applications for payment and satisfactory
evidence of payment of all previous invoices submitted by subcontractors and
suppliers. In addition, Landlord's architect, Tenant's Architect
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and Tenant's Project Manager shall certify that the subject work specified in
each of such monthly requisitions has been substantially completed, and a copy
of such certification shall accompany each requisition furnished to Tenant
hereunder. Tenant's Architect and Tenant's Project Manager shall have the right
to inspect such work prior to certification. In no event shall any of such costs
due and payable hereunder remain unpaid by Tenant as of the Term Commencement
Date, except for any holdback amount as set forth in Section 9.2 hereof.
For purposes hereof, Landlord and Tenant further agree that the
certification of cost by Landlord's contractor, Gutierrez Construction Co.,
Inc., shall be based on the definition of cost of the work as more particularly
set forth in Exhibit L hereto. Any changes to the Tenant's Plans after the
approval of the Tenant's Plans (and any changes to Landlord's Plans after the
approval thereof as set forth in Section 9.1 above) or increase in such cost
shall be in accordance with the form of Work Change Order attached hereto as
Exhibit K.
Promptly after approval of Tenant's Plans, Landlord shall bid out the
major contracts in the pricing of the cost of Tenant's Work (specifically
excluding Landlord's Work hereunder), Landlord agrees to use good faith,
diligent efforts to obtain three (3) qualified bids from subcontractors selected
from a master list of subcontractors mutually prepared and agreed upon by
Landlord and Tenant prior to the soliciting of bids for any item of Tenant's
Work exceeding twenty-five thousand dollars ($25,000.00). The subcontractor
selected for the performance of the work shall be the subcontractor with the
lowest bid price; provided, however, that if Landlord, in its reasonable
judgment, determines that due to changed conditions (such as increased work
commitments on the part of the respective subcontractor, or other pertinent
factors) the selection of such low bidder could result in Subcontractor Delay
Days (as hereinafter defined), then Landlord shall provide written notice (a
"Landlord's Subcontractor Notice") thereof to Tenant, which notice shall
identify the low bidder and next lowest bidder and indicate the number of
Subcontractor Delay Day(s) that would result from selection of the low bidder
(giving due consideration of Landlord's obligations to use diligent efforts to
accelerate construction to make up for lost time to delays). Tenant shall have
four (4) business days upon receipt of such Landlord's Subcontractor Notice to
notify Landlord that either (i) Landlord should proceed with the original low
bidder (in which event the Scheduled Term Commencement Date shall be extended
for the number of days (the "Subcontractor Delay Day(s)") equal to the number of
Subcontractor Delay Days indicated in Landlord's Subcontractor Notice), or (ii)
Landlord's selection of the next lowest bidder is acceptable to Tenant (in which
event the Scheduled Term Commencement Date shall not be extended). Failure by
Tenant to respond within said four (4) business day period shall be deemed to
constitute acceptance by Tenant of Landlord's selection of the next lowest
bidder. Landlord agrees to use reasonable efforts to notify Tenant
simultaneously or forthwith upon Tenant's notification to Landlord as to its
election set forth in (i) and (ii) above, if Landlord has knowledge or a
reasonable basis to believe that a Subcontractor Delay Day(s) will likely result
due to Landlord's notification requirements hereunder, regardless of whether or
not Tenant elects to proceed with the original lowest bidder or not. In
addition, in the event that Landlord and Tenant are unable to agree on the cost
of any portion of said work, any disagreement shall be resolved pursuant to the
provisions of Section 9.6 hereof. Landlord shall obtain all permits, approvals
and certificate of occupancy for Tenant's Work, the cost of which shall be
included in said GMP. After receipt of Landlord's bids for such twenty-five
thousand dollars ($25,000.00) plus work, Landlord shall submit its GMP to
Tenant.
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Tenant may, within five (5) days after receipt thereof, propose revisions to
Tenant's Plans in order to reduce the GMP. Landlord agrees to work in good faith
with Tenant to reduce the GMP based on revised Tenant's Plans. Any such
revisions by Tenant to the Tenant's Plans hereunder may result in Tenant's
Alteration Delay Days, Landlord hereby agreeing to give Tenant prompt notice
upon receipt of a requested revision to Tenant's Plans setting forth the number
of Tenant Alteration Delay Days in the manner set forth in Section 9.1 above.
Upon commencement of the Tenant's Work, Landlord and Tenant hereby
further agree, each acting reasonably and in good faith, to attend and
participate in weekly construction meetings with Landlord's general contractor's
construction manager(s) during such construction process.
9.1.2 TENANT'S CONSTRUCTION WORK.
Tenant agrees that any construction included in Tenant's Plans which
Tenant specifies to be done by itself or its contractors (hereinafter referred
to as "Tenant's Construction Work"), which shall include, for example, Tenant's
installation of furniture, furnishings, telephones, movable equipment, security
and later changes or additions, shall be completed by and coordinated with any
work being performed by Landlord in such manner as to maintain harmonious labor
relations and not materially damage the Premises or Lot or materially interfere
with the operation of the Building or with any of Landlord's construction work
hereunder, including but not limited to the construction of the Landlord's Work
and Tenant's Work. Tenant (including its contractors, agents or employees) shall
have access to the Premises and may perform Tenant's Construction Work prior to
the Scheduled Term Commencement Date and prior to the commencement of the Term
so as to prepare the Premises for occupancy by Tenant, provided that (i)
Tenant's contractors, agents or employees work in a harmonious labor
relationship with Landlord's general contractor, (ii) reasonable prior written
notice is given to Landlord's general contractor specifying the work to be done,
and (iii) no work, as reasonably determined by Landlord, shall be done or
fixtures or equipment installed by Tenant in such manner as to materially
interfere with the completion of Landlord's Work and the Tenant's Work being
done by or for Landlord on the Premises. During the period of preoccupancy of
the Premises by Tenant in connection with Tenant's Construction Work prior to
the commencement of the Term, no Fixed Rent or additional rent or other charges
shall accrue or be payable, but otherwise such preoccupancy shall be subject to
all the terms, covenants and conditions contained in this Lease.
9.2 PREPARATION OF PREMISES FOR OCCUPANCY.
Landlord shall perform the Landlord's Work and Tenant's Work, and,
therefore, Landlord agrees to use diligent efforts to have the Premises ready
for occupancy on the Scheduled Term Commencement Date.
Landlord and Tenant agree that time is of the essence, and Landlord
agrees to use diligent efforts to accelerate construction to make up for time
lost due to any delay. Unless sooner terminated by Tenant pursuant to the
provisions of Section 9.2, the Term of this Lease shall commence on the date the
entire Premises are deemed "ready for occupancy" as set forth below,
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expressly excluding partial occupancy pursuant to Section 9.2.1 hereof (the
"Term Commencement Date").
The Premises shall be deemed "ready for occupancy" on the earlier of:
(a) the date on which Tenant occupies all or any portion of the
Premises for the Permitted Uses (occupancy under Section 9.1.2 shall not be
deemed occupancy for purposes of this Section); or
(b) (1) the date on which the construction of all of the Landlord's
Work and the Tenant's Work is Substantially Completed, as defined below, and (2)
Landlord has delivered to Tenant a permanent certificate of occupancy from the
Town of Westford or a temporary certificate of occupancy from the Town of
Westford which allows Tenant to use and occupy the Premises, including in all
cases use of the elevator(s), and which temporary certificate of occupancy is
not conditional on the performance of any work other than the Punch List Work as
defined below, except that such permit shall not be required as a condition of
Substantial Completion if Landlord is unable to secure the same due solely to
Tenant's failure to complete Tenant's Construction Work as specified in Section
9.1.2 above (which such date, subject to additional terms and provisions of this
Section 9.2, shall hereinafter be referred to as the date of "Substantial
Completion" or which such work shall hereinafter be referred to as
"Substantially Completed"). In any event, notwithstanding the achievement of
Substantial Completion, all Punch List Work shall be completed by no later than
thirty (30) days after the date of Substantial Completion, except as hereinafter
provided.
An AIA Certificate of Substantial Completion by the Landlord's
architect, Tenant's Architect and satisfactorily reviewed by Tenant's Project
Manager (which such Certificate shall be in the form attached hereto as Exhibit
C-1) shall evidence the Landlord's determination that it has performed all such
obligations, except for completing the landscaping work and completing the final
paving course, and minor items stated in such Certificate to be incomplete or
not in conformity with such requirements, or will not unreasonably interfere
with Tenant's use or occupancy of the Premises and all of which work shall be
identified and specified in the Certificate of Substantial Completion
(collectively such landscaping work, finish paving course work and minor items
are referred to herein as the "Punch List Work") shall be promptly completed on
or prior to the date of Substantial Completion. Tenant shall have the right
within fifteen (15) days after Tenant's receipt of said Certificate of
Substantial Completion to notify Landlord of its disagreement with said
Certificate and to identify additional items of Punch List Work, all of which
shall be completed by Landlord within thirty (30) days after notice thereof from
Tenant. Landlord and Tenant hereby further agree that on the date of Substantial
Completion and following preparation of the list describing the Punch List Work,
the ten percent (10%) retainage previously applied and withheld by Tenant as
aforesaid shall be forwarded to Landlord, subject to the terms and provisions of
Section 9.1.1, less two hundred percent (200%) of the cost of completion of the
Punch List Work (which shall be retained by Tenant pursuant to the terms of this
Section 9.2), unless previously withheld by Tenant from the last Landlord's
requisition.
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If weather materially and adversely interferes with Landlord's ability
to finish the final course of paving and outside work or such other Punch List
Work, which such work does not unreasonably interfere with Tenant's occupancy,
and the operation of Tenant's business therein, said work can be completed by
Landlord reasonably thereafter, so long as such delay does not and will not
interfere with or prevent Landlord from obtaining a certificate of occupancy
upon completion of all other work herein described.
After Landlord has completed all Landlord's Work and Tenant's Work,
including all Punch List Work, Landlord's architect shall forward to Tenant its
Certificate of Final Completion, such Certificate to be in the form attached
hereto as Exhibit C-2 and to be satisfactorily reviewed by Tenant's Architect
and Tenant's Project Manager, whereupon all amounts so withheld by Tenant
hereunder as security for completion of the Punch List Work shall be promptly
forwarded to Landlord. In addition, within sixty (60) days after completion of
all such work, including all Tenant's Construction Work by Tenant, Landlord
shall forward to Tenant a final, unconditional certificate of occupancy from the
Town of Westford, exclusive of any days due to Tenant's Delay. In the event that
Landlord fails to deliver the final, unconditional certificate of occupancy
within said sixty (60) day time period and the Town of Westford has issued a
cease and desist order (due solely to Landlord's responsibilities hereunder),
then Tenant shall have, in addition to such cure rights described in Section
26.18(b) of this Lease, the right to abate one hundred percent (100%) of the
Fixed Rent and additional rent due hereunder until such time as such certificate
has been obtained, so long as Landlord has been provided with at least three (3)
days prior written notice after issuance of such cease and desist order and
Landlord has not provided such certificate to Tenant within said three (3) day
period.
The phrase "Tenant's Delay" shall mean the aggregate number of days
(excluding any days of delay caused by or resulting from Force Majeure) equal to
the actual number of days that, notwithstanding its diligent and good faith
efforts to complete construction by the Scheduled Term Commencement Date, the
Landlord is delayed in completing its construction by the Scheduled Term
Commencement Date due to (i) the failure of the Tenant to deliver the Tenant's
Plans (or modifications thereto) to Landlord on the dates established pursuant
to Section 9.1 hereof, or (ii) a delay caused by Tenant performing the Tenant's
Construction Work pursuant to Section 9.1.2 hereof, or (iii) the number of
Subcontractor Delay Days pursuant to Section 9.1.1 hereof, or (iv) a delay or
stoppage requested in writing by Tenant, or (v) the number of Tenant Alteration
Delay Days resulting from Change Orders requested by Tenant pursuant to Section
9.1 hereof, or (vi) the number of Tenant Plan Delay Day(s) pursuant to Section
9.1 hereof, then the Term Commencement Date shall be deemed to have occurred on
the date, as certified in good faith by Landlord and its architect, that
Substantial Completion would have occurred had there not occurred such Tenant's
Delay, calculated by determining the number of days of Tenant's Delay as
aforesaid, giving consideration to Landlord's obligation under the second
paragraph of this Section 9.2 to accelerate to make up for time lost due to any
delays. Landlord agrees to promptly provide Tenant with written notice of such
Tenant's Delay promptly after the occurrence of such Tenant's Delay, such notice
to include reasonable detail describing the cause of the delay as certified by
Landlord's architect.
Notwithstanding the foregoing provisions, if the Premises are not
deemed ready for occupancy on or before the Outside Delivery Date (as defined
below) for whatever reason,
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Tenant may elect (i) to cancel this Lease at any time thereafter while the
Premises are not deemed ready for occupancy by giving notice to Landlord of such
cancellation which shall be effective ten (10) days after such notice, unless
within such ten (10) day period Landlord delivers the Premises ready for
occupancy as defined herein, in which event such notice of cancellation shall be
rendered null and void and of no further force or effect, or (ii) to enforce
Landlord's covenants to construct the Premises in accordance with the terms of
this Lease. In the event Tenant elects to enforce Landlord's agreement to
construct the Premises in accordance with this Lease, Tenant shall also have the
right to terminate this Lease if Landlord fails to complete the Premises within
the period of time set by any court of competent jurisdiction for such work to
be completed, or within such additional period of time from the date of
Landlord's default as may be mutually agreed to by Landlord and Tenant. Further,
notwithstanding any provisions of this Lease to the contrary, in the event that
the Premises are not deemed ready for occupancy on or prior to such date which
is sixty (60) days following the Scheduled Term Commencement Date (as such date
may be extended for reasons due to Force Majeure and/or to Tenant's Delay), then
the Tenant may elect to receive from Landlord as liquidated damages an abatement
of Fixed Rent (following commencement of rental obligations pursuant to Section
4.1 hereof) equal to one hundred percent (100%) of the daily Fixed Rent and
additional rent for each day the Tenant's Work and Landlord's Work is not
Substantially Completed sixty (60) days beyond the Scheduled Term Commencement
Date (as extended as aforesaid). In addition, in the event that the Premises are
not deemed ready for occupancy by the Scheduled Term Commencement Date (as such
date may be extended as aforesaid), Landlord agrees to use best efforts to
provide Tenant with "swing space" until the Premises are Substantially
Completed, such space to be leased to Tenant on such terms to be mutually agreed
upon by the parties. The foregoing remedies shall be Tenant's sole and exclusive
remedies for not having the Premises completed on or before the Outside Delivery
Date.
For purposes hereof, the Outside Delivery Date shall be deemed to refer
to that certain date which is ninety (90) days following the Scheduled Term
Commencement Date, as such date may be extended for a period equal to that of
(i) any delays due to Force Majeure as defined in Section 9.5 hereof, (ii) the
number of delay days caused by a Tenant's Delay as hereinbefore determined.
9.2.1 PARTIAL OCCUPANCY AND RENT COMMENCEMENT.
If the entire Premises are not ready for occupancy on the Scheduled
Term Commencement Date, the Tenant may elect, but shall have no obligation to,
occupy any portion or portions of the Premises which are ready for occupancy
when, in Landlord's opinion, it can be done without material interference with
remaining work. In such event, Tenant agrees not to materially interfere with
Landlord's construction of the Premises. In the event Tenant elects to take
occupancy of a portion of the Premises, that portion shall be deemed ready for
occupancy as to said portion on the date of occupancy of such portion and
Tenant's obligation to pay Fixed Rent and additional rent shall commence on said
date pro rata based on the square footage occupied compared to the total square
footage in the Premises. The foregoing provisions of this Section 9.2.1 shall
not apply to the rights of Tenant set forth in Section 9.1.2 hereof.
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9.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION
All construction work required or permitted by this Lease, whether by
Landlord or by Tenant (or their respective subcontractors), shall be done in a
good and workmanlike manner and in compliance with all applicable laws and all
lawful ordinances, regulations and orders of governmental authority and insurers
of the Building. Either party may inspect the work of the other at reasonable
times and shall promptly give notice of observed defects. Notice of said defects
shall be in writing and shall be rectified by Landlord or Tenant, as the case
may be, within thirty (30) days of the original date of notice. Failure to
provide notice hereunder shall not be the basis for any liability or for injury
or damage caused by such defect of or waiver of right to cause any defect to be
corrected.
9.4 REPRESENTATIVES
Landlord hereby acknowledges and agrees that only the following
persons, David Sommers, or any successors to either of them holding the same
title or any other person delegated the authority from either of them in writing
(hereinafter "Tenant's Construction Representatives") have the authority to act
on Tenant's behalf and represent Tenant's interest with respect to all matters
requiring Tenant's action in this Article. No consent, authorization or other
action by Tenant with respect to matters set forth in this Article shall bind
Tenant unless in writing and signed by one of the aforementioned persons.
Landlord hereby expressly recognizes and agrees that no other person claiming to
act on behalf of Tenant is authorized to do so. If Landlord complies with any
request or direction presented to it by anyone claiming to act on behalf of
Tenant who does not have the title and position mentioned above, such compliance
shall be at Landlord's sole risk and responsibility and shall not in any way
alter or diminish the obligations and requirements created and imposed by this
Article, and Tenant shall have the right to enforce compliance with this Article
without suffering any waiver or abrogation of any of its rights hereunder. All
actions requiring Tenant's Architect's review and/or certification shall be
subject to Tenant's Project Manager's satisfactory review and reasonable
approval. For purposes of this Article IX, the term "Tenant's Project Manager"
shall refer to Albert M. Livermore.
Tenant hereby acknowledges and agrees that only the following persons,
Arturo J. Gutierrez, John A. Cataldo, Dennis G. Bailey or P. Agustin Rios or any
successors to either of them holding the same title or any other person
delegated the authority from either of them in writing (hereinafter "Landlord's
Construction Representatives") have the authority to act on Landlord's behalf
and represent Landlord's interests with respect to all matters requiring
Landlord's action in this Article. No consent, authorization or other action by
Landlord with respect to matters set forth in this Article shall bind Landlord
unless in writing and signed by one of the aforementioned persons. Tenant hereby
expressly recognizes and agrees that no other person claiming to act on behalf
of Landlord is authorized to do so. If Tenant complies with any request or
direction presented to it by anyone claiming to act on behalf of Landlord who
does not have the title and position mentioned above, such compliance shall be
at Tenant's sole risk and responsibility and shall not in any way alter or
diminish the obligations and requirements created and imposed by this Article,
and Landlord shall have the right to enforce compliance with this Article
without suffering any waiver or abrogation of any of its rights hereunder.
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9.5 FORCE MAJEURE.
As used in this Article and elsewhere in the Lease, "Force Majeure"
shall mean a time extension equal to that of any delays when the party required
to perform the respective obligation is prevented from doing so, despite the
exercise of reasonable diligence, and such delay is caused by: (i) Acts of God,
(ii) changes in government regulations, (iii) casualty, (iv) strike or other
such labor difficulties, (v) unusual weather conditions, (vi) unusual scarcity
of or inability to obtain supplies, parts or employees to furnish such services,
or (vii) other acts reasonably beyond Landlord's control despite diligent
efforts to cure the same, but in no event shall the term include economic or
financing difficulties. Landlord shall provide Tenant with written notice of the
occurrence of a Force Majeure event promptly after the occurrence thereof, and
shall comply with its respective obligations) as soon as the cause for the delay
has (have) been eliminated.
9.6 ARBITRATION BY ARCHITECTS.
Whenever there is a disagreement between the parties with respect to
construction by Landlord of Landlord's Work or Tenant's Work, such disagreement
shall be definitively determined by the following procedure: Each of Landlord
and Tenant shall appoint one (1) independent architect (which such architect may
be Landlord's Architect and Tenant's Architect referenced in Section 9.1 above),
such two (2) architects will then (within five (5) days of their appointment)
appoint a third independent architect licensed in the Commonwealth of
Massachusetts with not less than ten (10) years experience. Each architect shall
establish within ten (10) days of their appointment the matter in dispute. In
case of any dispute with respect to dollar amounts or lengths of time or dates
such as the date of Substantial Completion, the dollar amount or length of time
or date shall be the average of the two closest determinations by the three (3)
architects, with the determination of the architect which was not closest to
another architect's determination excluded from such calculation. In case of any
dispute not involving dollar amounts or lengths of time or dates (i.e. the
approval of plans) the determination by at least two (2) of the three (3)
architects shall be required in order to resolve the matter in dispute. Landlord
and Tenant shall each bear the cost of the architect selected by them
respectively and shall share equally the cost of the third architect. During
such arbitration period, the parties agree to cooperate with one another so as
to proceed with construction and with their respective obligations hereunder in
a timely manner. Each determination under this Section 9.6 shall be binding upon
Landlord and Tenant.
9.7 WARRANTY OF LANDLORD'S WORK AND TENANT'S WORK.
Landlord hereby warrants and guarantees, at no extra cost to Tenant,
that the Landlord's Work and the Tenant's Work shall be free from defects in
workmanship and materials for a period of one (1) year after the Term
Commencement Date. Upon the expiration of said one (1) year period and except as
provided in Section 6.1 to the contrary and/or except as relating to a Landlord
repair, replacement and maintenance obligation set forth in said Section 6.1,
including without limitation roof, glass and exterior wall warranties, Landlord
shall assign to Tenant any and all warranties and guarantees with respect to
Landlord's Work and Tenant's Work and, to the extent that any such warranties
and guarantees are not assignable, Landlord agrees to enforce the same for the
benefit of Tenant, at Tenant's sole cost and expense. Tenant shall not be
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responsible to pay for any such warranties of less than one (1) year duration or
enforcement by Landlord against its own employees or against Gutierrez
Construction Co., Inc. or against any of its other affiliates (including their
respective employees). Landlord agrees to repair, at its sole cost and expense
any defects in Landlord's Work or Tenant's Work promptly after receipt of notice
therefrom from Tenant, provided that such notice from Tenant is received by
Landlord within said one (1) year period. In connection therewith, Tenant shall
notify Landlord promptly after it becomes aware of any such defects. Any repairs
or replacements or alterations to Landlord's Work or Tenant's Work after said
initial one (1) year period shall be chargeable to Tenant in accordance with and
subject to the provisions of Section 5.1 hereof.
ARTICLE X
COMPLIANCE WITH LAW
10.1 TENANT COMPLIANCE - Tenant shall comply, at Tenant's sole expense,
with all applicable laws, ordinances, regulations and orders of any governmental
authority (collectively "the Laws") if such compliance is necessitated by reason
of Tenant's actual use of the Premises, which use shall in any event be in
conformity with the Permitted Uses as specified in Section 1.1 of this Lease.
Except for Tenant's obligations under the preceding sentence, Landlord shall
comply with all Laws applicable to the Building, the Lot or the Office Park.
10.2 NOTICE - Tenant shall have the right upon giving notice to
Landlord to contest any obligation imposed upon Tenant pursuant to the
provisions of this Article and provided the enforcement of such requirement or
law is stayed during such contest and such contest will not subject the Landlord
to criminal penalty or jeopardize the title to the Premises or otherwise affect
the Premises in any material adverse way. Landlord and Tenant shall each
cooperate with the other in any such contest and shall execute any documents
reasonably required in the furtherance of such purpose.
ARTICLE XI
ALTERATIONS, ADDITIONS AND IMPROVEMENTS
11.1 ALTERATIONS - Tenant may, from time to time, at its own cost and
expense and without the consent of Landlord, make non-structural non-roof
alterations, additions or improvements to the interior of the Premises
(collectively herein called "Alterations") whose cost in any one instance is
Fifty Thousand and 00/100 Dollars ($50,000.00) or less, provided Tenant first
notifies Landlord in writing of any such Alterations. If Tenant desires to make
any nonstructural non-roof Alterations costing in excess of Fifty Thousand and
00/100 Dollars ($50,000.00) in any one instance or any other alteration, Tenant
must first obtain the consent of Landlord thereto, which consent shall not be
unreasonably withheld, conditioned or delayed. In the instances where Landlord
consent is required above, if Landlord reasonably concludes that the Alterations
involve any construction, alterations or additions requiring unusual expense to
readapt the Premises so that the Premises can be used for the Permitted Uses as
defined in this Lease on the Term Expiration Date, then Landlord shall require
by written notice to Tenant at the time of approval that such readaptation will
be made prior to such Term Expiration Date without expense to Landlord.
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If Tenant desires to make any structural or roof alterations to the
Premises, Tenant must first obtain the consent of Landlord thereto. If Landlord
consents to alterations affecting such structural components or the roof,
Landlord shall be relieved of further maintenance and repair responsibility for
the structural components affected by such alterations, and Tenant shall assume
such responsibility, with respect to that portion of the structural components
(in its entirety), if any, to which the consent relates, except that Landlord
agrees upon request of Tenant to have such alterations be performed by Landlord
or a contractor hired by Landlord, at Tenant's expense, in which event Landlord
shall not be relieved of any responsibility it may have to the component to be
altered.
If Tenant desires to make any alterations to the precast panels, or to
the exterior of the Building or Lot, Tenant must first obtain the prior written
consent of Landlord thereto, which may be withheld in Landlord's sole
discretion.
Any and all such Alterations may be done by any general contractor
chosen by Tenant provided any such general contractor is reputable, bondable by
reputable bonding companies, carries the kind of insurance and in the amounts
set forth in Section 11.5 below. Notwithstanding the foregoing, no such bonding
is required for non-structural, non-roof Alterations.
11.2 LANDLORD PERFORMANCE OF ALTERATIONS - If Tenant, in its sole
discretion, wishes Landlord to perform the work of making Alterations for
Tenant, other than the Tenant's Work to be completed under Article IX, such work
shall be performed at actual cost, plus a fee of fifteen (15%) percent.
11.3 TENANT PERFORMANCE OF ALTERATIONS - Tenant in making any
Alterations shall cause all work to be done in a good and workmanlike manner
using materials equal to or better than those used in the construction of the
Tenant's Work and shall comply with or cause compliance with all laws and with
any direction given by any public officer pursuant to law. Tenant shall obtain
or cause to be obtained and maintain in effect, as necessary, all building
permits, licenses, temporary and permanent certificates of occupancy and other
governmental approvals which may be required in connection with the making of
the Alterations. Landlord shall cooperate with Tenant in the obtaining thereof
and shall execute any documents reasonably required in furtherance of such
purpose, provided any such cooperation shall be without expense and/or liability
to Landlord.
11.4 REMOVAL OF ALTERATIONS - At any time during the Term of this
Lease, or on the Term Expiration Date, Tenant may remove any Alterations made,
unless Landlord has indicated in writing at the time of approval of such
Alterations that such Alterations are required to remain on the Premises. In the
event of a removal of any Alterations by Tenant, Tenant shall, at its sole cost,
repair any damage to the Premises caused by such removal.
11.5 GENERAL PROVISIONS - At least annually if such Alterations have
occurred during the past calendar year, Tenant shall furnish to Landlord
as-built sepias and, if applicable, operating manuals, of the work done by
Tenant during such past year and copies of all permits issued in connection
therewith for all of Tenant's Alterations, whose cost in any one instance is in
excess of Fifty Thousand and 00/100 Dollars ($50,000.00). All of such
construction drawings
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must be prepared at Tenant's expense by an architect or engineer approved by the
Landlord and Landlord's engineer, which approval shall not be unreasonably
withheld or delayed. Landlord and Tenant shall initial the construction drawings
after the same have been submitted by Tenant to Landlord and approved by
Landlord. All of Tenant's Alterations which cost in any instance is in excess of
Fifty Thousand and 00/100 Dollars ($50,000.00), shall be constructed by a
reputable general contractor, and Landlord may require that the electrical,
heating ventilation and air conditioning, and sprinkler subcontractors be
approved by Landlord, such approval not to be unreasonably withheld or delayed.
Tenant shall have its contractor procure and maintain in effect during
the term of such Alterations, the following insurance coverages with an
insurance company or companies authorized to do business in the Commonwealth of
Massachusetts.
(a) Worker's Compensation and Occupational Disease Insurance in
accordance with the laws of the Commonwealth of Massachusetts, along with a "All
States" and "Voluntary Compensation" coverage endorsement.
(b) Employer's Liability insurance with a limit of $100,000.00 per
person per accident, $100,000.00 per person by disease, and $500,000.00 per
policy by disease.
(c) Comprehensive General Liability including Personal Injury and
Property Damage in the amount of a combined single limit of $2,000,000.00 each
occurrence. Coverage must include the following:
(1) premises - operations;
(2) elevators and hoists;
(3) independent contractor;
(4) contractual liability assumed under this contract.
(d) Comprehensive Auto Liability including Personal Injury and Property
Damage in the amount of a combined single limit of $500,000.00 each occurrence.
Coverage must include the following:
(1) owned vehicles;
(2) leased vehicles;
(3) hired vehicles;
(4) non-owned vehicles.
(e) Owner and Contractor Protective Liability including Personal Injury
and Property Damage in the amount of a combined single limit of $1,000,000.00
each occurrence.
ARTICLE XII
TENANT'S COVENANTS
12.1 MAINTENANCE AND REPAIR - Except as provided in Section 6.1 with
respect to maintenance, repair and other such obligations of Landlord and
Article XIII with respect to
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repair and restoration of damage or destruction arising out of a fire or other
casualty or the exercise of eminent domain, and except as to reasonable wear and
tear, Tenant shall: keep the Premises and all fixtures thereon and therein in
good repair, operating condition and working order; make and perform or cause to
be made or performed all interior maintenance, repairs, and replacements
necessary to keep the Premises in such condition, including, without limitation,
by their inclusion, interior repainting, and replacement of glass damaged or
broken and of floor and wall coverings worn or damaged; keep all roof drains
clear of blockage by snow and other obstructions or debris; except for Capital
Replacements (except as otherwise set forth in Section 6.1), keep all plumbing,
lighting, elevator, heating, ventilating, air conditioning and other utility and
mechanical systems in the Premises properly maintained and operating in good
operating condition; and except for Capital Replacements (except as otherwise
set forth in Section 6.1), properly maintain the plumbing, lighting, elevator,
heating, ventilating, air conditioning and other utility and mechanical systems
in accordance with any manufacturers warranty and product standards with fully
licensed contractors and under contracts, each reasonably acceptable to
Landlord, qualified to perform the service. Landlord and its agents reserve the
right to inspect the systems to insure proper maintenance in accordance with
Section 12.3 of this Lease. If Landlord, in Landlord's reasonable judgment,
determines such systems have not been properly and adequately maintained, as
herein required, then Landlord, after written notice to Tenant and the
expiration of the applicable grace period, shall have the right to remedy such
maintenance deficiency and apportion all reasonable costs of such inspections
and maintenance to Tenant's Common Area Maintenance Costs specified in Article
V, Landlord and Tenant hereby agreeing that written notice or grace period not
to be applicable in case of emergency with respect to persons or property.
Tenant further covenants to (i) neither commit nor suffer waste and
(ii) at the expiration or termination of this Lease peaceably to yield up the
Premises in such order, repair and condition as Tenant is required to maintain
hereunder, first removing all goods and effects of Tenant which Tenant is
required to remove or which Tenant is permitted to remove and desires to remove
and (iii) to repair all damage caused by such removal leaving the Premises clean
and neat and in a condition as required under the terms of this Lease. Any
property not so removed by Tenant shall be deemed abandoned and may be removed
by Landlord, at Tenant's cost.
12.2 SIGNS - Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed (but may be withheld in Landlord's sole discretion if Tenant (or any
permitted assignee or subtenant) is not leasing or subleasing and occupying at
least seventy-five percent (75%) of the Building), (a) paint, place or replace
any signs on the Lot or the Premises or anywhere on the exterior of the Building
(notwithstanding the provisions of Section 11.1 to the contrary), or (b) place
any curtains, blinds (other than standard vertical blinds), shades, awnings, or
flagpoles, or the like, in the Premises or anywhere on or in the Building
visible from outside the Building. Tenant shall pay the expenses involved in the
erection of any sign and of obtaining permits therefor. Except as otherwise
provided below with respect to initial Building signage, Tenant warrants that it
shall obtain (and furnish copies thereof to Landlord) all necessary permits and
approvals in compliance with local codes and ordinances prior to erecting any
such sign(s) and, at Landlord's request, Tenant shall remove said sign(s) upon
the termination of this Lease.
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In connection with Tenant's initial Building signage, Landlord shall
use reasonable efforts to obtain, on Tenant's behalf, all necessary permits and
approvals required pursuant to local codes and ordinances for the building and
site signage (i.e., up to two (2) wall signs on the Building and up to two (2)
monument signs providing for Tenant's identity at the entrances of the Office
Park, the location of which shall be mutually agreed upon by Landlord and
Tenant) set forth and described in Exhibit O hereto. Tenant's signage on the
Building shall be exclusive until such time as Tenant (or any permitted assignee
or subtenant) fails to lease, sublease and/or occupy at least seventy-five
percent (75%) of the Building. Tenant shall reimburse Landlord for the actual
third-party reasonable costs and expenses incurred by Landlord in connection
with obtaining said permits and approvals, including reasonable attorneys' fees
and disbursements. Tenant agrees to cooperate with Landlord during the
permitting process by (i) promptly executing the necessary documentation
reasonably requested by Landlord, and (ii) by furnishing the same to Landlord
promptly upon Landlord's request, but in no event later than seven (7) days
following Landlord's request. Further, the construction and erection of the
Building signage shall be Tenant's sole responsibility and at Tenant's sole cost
and expense. In the event that Tenant elects to expand the Premises, as set
forth in Exhibit J attached hereto, Tenant shall also have the right to up to
two (2) additional monument signs and up to two (2) additional wall signs on the
Expansion Space and/or Modified Expansion Space, as applicable, subject to the
aforesaid provisions. It is hereby acknowledged and agreed to by Landlord and
Tenant that the cost of the base for such monument signs shall be borne by
Landlord as provided in Exhibit B-2, Section 2B.
12.3 ENTRY AND INSPECTION - Tenant shall permit Landlord and Landlord's
agents and invitees at reasonable times and upon reasonable advance notice
except in emergency in which case notice may be given by telephone or in person,
during Tenant's regular business hours: to examine the Premises; and, if
Landlord shall so elect, to exercise its rights and perform its obligations
under this Lease; to show the Premises to prospective purchasers, prospective or
actual mortgagees, and prospective or actual institutional investors; and, at
any time within twelve (12) months preceding the expiration of the Term, to show
the Premises to prospective tenants, and to affix to any suitable part of the
exterior of the Building and/or the Premises, but not so as to interfere
unreasonably with any of the signs or the windows of the Tenant, a notice to
letting or selling the Premises, and to keep the same so affixed without
hindrance; provided, however, Landlord shall not unreasonably interfere with
Tenant's use or occupancy of the Premises.
12.4 MISCELLANEOUS - Tenant agrees during the Term and so long as
Tenant's occupancy continues:
(a) Not to permit its employees and officers to use any
parking spaces other than those described in Exhibit A and in Section 2.1 of
this Lease, and to make every reasonable effort to keep its invitees from using
any spaces other than those on the Lot; any governmental charges or surcharges
or other monetary obligations imposed by a governmental agency relativ |
