Massachusetts-Marlborough-165 Forest Street Lease - 165 Forest Street Realty Trust of 1992 and Egenera Inc.
TABLE OF CONTENTS
ARTICLE 1: REFERENCE DATA AND DEFINITIONS .................................... 5
1.01: REFERENCE DATA ......................................................... 5
1.02: GENERAL PROVISIONS ..................................................... 6
1.03: TERMS DEFINED .......................................................... 7
ARTICLE 2: PREMISES .......................................................... 13
2.01: PREMISES ............................................................... 13
2.02: APPURTENANCES .......................................................... 13
ARTICLE 3: TERM .............................................................. 14
3.01: TERM COMMENCEMENT ...................................................... 14
3.02: TERMINATION ............................................................ 14
ARTICLE 4: RENT .............................................................. 14
4.01: BASIC RENT ............................................................. 14
4.02: COMPUTATION OF BASIC RENT .............................................. 14
ARTICLE 5: USE OF PREMISES ................................................... 14
5.01: USE RESTRICTED ......................................................... 14
ARTICLE 6: TAXES; OPERATING EXPENSES; ESTIMATED COST OF ELECTRICAL SERVICES .. 14
6.01: EXPENSES AND TAXES ..................................................... 14
6.02: ANNUAL STATEMENT OF ADDITIONAL RENT DUE ................................ 15
6.03: MONTHLY PAYMENTS OF ADDITIONAL RENT .................................... 15
6.04: ACCOUNTING PERIODS ..................................................... 15
6.05: ABATEMENT OF TAXES ..................................................... 15
6.06: LATE PAYMENT OF RENT ................................................... 16
ARTICLE 7: IMPROVEMENTS, REPAIRS, ADDITIONS, REPLACEMENTS .................... 16
7.01: PREPARATION OF THE PREMISES ............................................ 16
7.02: INTENTIALLY OMITTED .................................................... 16
7.03: DELAYS ................................................................. 16
7.04: TENANT'S ACCESS TO PREMISES ............................................ 16
7.05: ALTERATIONS AND IMPROVEMENTS ........................................... 17
7.07: MAINTENANCE ............................................................ 18
7.08: REDELIVERY ............................................................. 18
ARTICLE 8: BUILDING SERVICES ................................................. 18
8.01: BUILDING SERVICES ...................................................... 18
8.02: OTHER JANITORS ......................................................... 18
8.03: ADDITIONAL SERVICES .................................................... 18
8.04: LIMITATIONS ON LANDLORD'S LIABILITY .................................... 18
8.05: ELECTRIC SERVICE ....................................................... 19
ARTICLE 9: TENANT'S PARTICULAR COVENANTS ..................................... 19
9.01: PAY RENT ............................................................... 19
9.02: OCCUPANCY OF THE PREMISES .............................................. 19
9.03: SAFETY ................................................................. 19
9.04: EQUIPMENT .............................................................. 19
9.05: ELECTRICAL EQUIPMENT ................................................... 20
9.06: PAY TAXES .............................................................. 20
9.07: TENANT'S COVENANTS ..................................................... 20
ARTICLE 10: REQUIREMENTS OF PUBLIC AUTHORITY ................................. 20
2
<PAGE>
10.01: LEGAL REQUIREMENTS .................................................... 20
10.02: CONTESTS .............................................................. 20
ARTICLE 11: COVENANT AGAINST LIENS ........................................... 21
11.01: MECHANICS LIENS ....................................................... 21
11.02: RIGHT To DISCHARGE .................................................... 21
ARTICLE 12: ACCESS TO PREMISES ............................................... 21
12.01: ACCESS ................................................................ 21
ARTICLE 13: ASSIGNMENT AND SUBLETTING; OCCUPANCY ARRANGEMENTS ................ 21
13.01: SUBLETTING AND ASSIGNMENT ............................................. 21
ARTICLE 14: INDEMNITY ........................................................ 22
14.01: TENANT'S INDEMNITY .................................................... 22
14.02: LANDLORD'S LIABILITY .................................................. 22
ARTICLE 15: INSURANCE ........................................................ 23
15.01: LIABILITY INSURANCE ................................................... 23
15.02: CASUALTY INSURANCE .................................................... 23
ARTICLE 16: WAIVER OF SUBROGATION ............................................ 23
16.01: WAIVER OF SUBROGATION ................................................. 23
16.02: WAIVER OF RIGHTS ...................................................... 23
ARTICLE 17: DAMAGE OR DESTRUCTION ............................................ 24
17.01: SUBSTANTIAL DAMAGE .................................................... 24
17.02: RESTORATION ........................................................... 24
ARTICLE 18: EMINENT DOMAIN ................................................... 24
18.01: TOTAL TAKING .......................................................... 24
18.02: PARTIAL TAKING ........................................................ 24
18.03: AWARDS AND PROCEEDS ................................................... 25
ARTICLE 19: QUIET ENJOYMENT .................................................. 25
19.01: LANDLORD'S COVENANT ................................................... 25
19.02: SUBORDINATION ......................................................... 25
19.03: NOTICE TO MORTGAGEE ................................................... 25
19.04: OTHER PROVISIONS REGARDING MORTGAGEES ................................. 26
ARTICLE 20: DEFAULTS; EVENTS OF DEFAULT ...................................... 26
20.01: DEFAULTS .............................................................. 26
20.02: TENANT'S BEST EFFORTS ................................................. 26
20.03: ELIMINATION OF DEFAULT ................................................ 27
ARTICLE 21: INSOLVENCY ....................................................... 27
21.01: INSOLVENCY ............................................................ 27
ARTICLE 22: LANDLORD'S REMEDIES; DAMAGES ON DEFAULT .......................... 27
22.01: LANDLORD'S REMEDIES ................................................... 27
22.02: SURRENDER ............................................................. 27
22.03: RIGHT TO RELET ........................................................ 28
22.04: SURVIVAL OF COVENANTS ................................................. 28
22.05: RIGHT TO EQUITABLE RELIEF ............................................. 29
22.06: RIGHT TO SELF HELP; INTEREST ON OVERDUE RENT .......................... 29
22.07: FURTHER REMEDIES ...................................................... 29
3
<PAGE>
ARTICLE 23: WAIVERS ......................................................... 29
23.01: NO WAIVERS ............................................................ 29
ARTICLE 24: SECURITY DEPOSIT ................................................. 30
24.01: SECURITY DEPOSIT ...................................................... 30
ARTICLE 25: GENERAL PROVISIONS ............................................... 30
25.01: FORCE MAJEURE ......................................................... 30
25.02: NOTICES AND COMMUNICATIONS ............................................ 30
25.03: CERTIFICATES, ESTOPPEL LETTER ......................................... 31
25.04: RENEWAL ............................................................... 31
25.05: GOVERNING LAW ......................................................... 31
25.06: PARTIAL INVALIDITY .................................................... 31
25.07: INTERPRETATION; CONSENTS .............................................. 32
25.08: BIND AND INURE; LIMITATION OF LANDLORD'S LIABILITY .................... 32
25.09: PARTIES ............................................................... 32
25.10: WAIVER OF TRIAL BY JURY ............................................... 32
ARTICLE 26: MISCELLANEOUS .................................................... 33
26.01: HOLDOVER CLAUSE ....................................................... 33
26.02: RIGHT OF FIRST REFUSAL ................................................ 33
26.03: SIGNAGE ............................................................... 33
26.04: BROKERAGE ............................................................. 33
ARTICLE 27: ENTIRE AGREEMENT ................................................. 34
27.01: ENTIRE AGREEMENT ...................................................... 34
EXHIBIT A: (PLAN SHOWING TENANT'S SPACE) ..................................... 35
EXHIBIT B: (LANDLORD'S WORK) ................................................. 36
EXHIBIT C: MEMORANDUM OF WORK AND INSTALLATIONS .............................. 37
EXHIBIT D: AGREEMENT ......................................................... 41
EXHIBIT E: SERVICE TO BE PROVIDED BY LANDLORD (AS OPERATING EXPENSES) ........ 43
EXHIBIT F: RULES AND REGULATIONS ............................................. 45
EXHIBIT G: ESTOPPEL CERTIFICATE .............................................. 47
4
<PAGE>
165 FOREST STREET - MARLBOROUGH, MASSACHUSETTS
OFFICE LEASE - STANDARD FORM
THIS LEASE ("Lease") made in Marlborough, Massachusetts, by and between 165
Forest Street Realty Trust of 1992 a duly organized and existing Massachusetts
Realty Trust ("Landlord") having a principal place of business c/o Rosewood
Development Corporation at 293 Boston Post Road West, Suite 320, Marlborough,
Massachusetts 01752, and Egenera, Inc. a duly organized and existing
Massachusetts Corporation ("Tenant") having a principal place of business at 563
Main Street, Bolton, MA 01740.
WITNESSETH:
ARTICLE 1: REFERENCE DATA AND DEFINITIONS
1.01: REFERENCE DATA
LANDLORD'S REPRESENTATIVE: David P. Depietri
Rosewood Development Corporation
LANDLORD'S ADDRESS: 165 Forest Street Realty Trust of 1992
(For Payment of Rent) c/o Rosewood Development Corporation
Suite 320
293 Boston Post Road West
Marlborough, MA 01752
LANDLORD'S ADDRESS: Same As Above
(For Notice and Billing)
TENANT: Egenera, Inc.
TENANT'S REPRESENTATIVE: Vern J, Brownell
TENANT'S PHONE NUMBER: (978) 779-6800
TENANT'S FAX NUMBER: (978) 779-9730
PREMISES: The portion of the
Building known as Suites
200, 300 and 400 as shown
on Exhibit A attached
hereto.
RENTABLE AREA OF PREMISES: 31,277 rentable square feet.
RENTABLE AREA OF THE BUILDING: 48,959 rentable square feet
5
<PAGE>
TERM COMMENCEMENT DATE: The date upon which the Landlord shall deliver
the entire Premises to Tenant free of all tenants
and occupants, subject to the provisions of
Section 2.01 hereof, which is estimated on or
before January 1, 2001.
RENT COMMENCEMENT DATE: Upon the Term Commencement Date.
LEASE TERM: Ten (10) years (plus the partial month, if any,
immediately following the Term
Commencement Date)
BASIC RENT: See Schedule Below
YEARS RATE PER SQ. FT. ANNUAL RENT MONTHLY RENT
----- ---------------- ----------- ------------
1-5 $21.00 $656,817.00 $54,734.75
6-10 $22.00 $688,094.00 $57,341.17
COST OF ELECTRICAL SERVICE: Tenant to be separately metered for electrical
service.
INITIAL MONTHLY PAYMENT, (Basic Rent): $54,734.75
REAL ESTATE TAX BASE: $1.67
OPERATING EXPENSE BASE: $2.45
TENANT'S SHARE: 63.88%
SECURITY DEPOSIT: $800,000.00 (see article 24.01)
GUARANTOR: N/A
PERMITTED USES: General Office and computer lab uses which
are consistent with a first class office building.
1.02: GENERAL PROVISIONS
For all purposes of the Lease unless otherwise expressed and provided herein or
therein or unless the context otherwise requires:
a) The words herein, hereof, hereunder and other words of similar
import refer to the Lease as a whole and not to any particular
article, section or other subdivision of this Lease.
b) A pronoun in one gender includes and applies to the other genders as
well.
6
<PAGE>
c) Each definition stated in Section 1.01 or 1.03 of this Lease applies
equally to the singular and the plural forms of the term or
expression defined.
d) Any reference to a document defined in Section 1.03 of this Lease is
to such document as originally executed, or, if modified, amended or
supplemented in accordance with the provisions of this Lease, to
such document as so modified, amended or supplemented and in effect
at the relevant time of reference thereto.
e) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles.
f) All references in Section 1.01 hereof are subject to the specified
definitions thereof (if any) in Section 1.03 hereof.
1.03: TERMS DEFINED
Each term or expression set forth above in Section 1.01 hereof or below in this
Section 1.03 has the meaning stated immediately after it.
ADDITIONAL SERVICES: Services provided to Tenant or in respect to the Premises
which are not described in Exhibit E hereto.
ADJUSTED OPERATING EXPENSE BASE: The amount determined by multiplying the
Operating Expense Base by the Adjustment Factor.
ADJUSTED TAX BASE: The amount determined by multiplying the Real Estate Tax Base
by the Adjustment Factor. -
ADJUSTMENT FACTOR: With respect to the First Calendar Year and the Last Calendar
Year, the percentage computed by dividing (i) the number of days of each such
period falling within the Lease term by (ii) 365.
AFFILIATE: With respect to any specified person, any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition, the
term control when used with respect to any specified person means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms controlling and controlled by have meanings correlative to the
foregoing.
AUTHORIZATIONS: All franchises, licenses, permits and other governmental
consents issued by Governmental Authorities pursuant to Legal Requirements which
are or may be required for the use and occupancy of the Premises and the conduct
or continuation of a Permitted Use therein.
BASIC SERVICES: The services described in Exhibit E hereto.
BUILDING: The building located at 165 Forest Street, Marlborough, Massachusetts.
7
<PAGE>
BUILDING STANDARD TENANT FINISHES: The standards set by Landlord for the quality
of work done on the Premises described in Exhibit B.
BUSINESS DAY: A day which is not a Saturday, Sunday or other day on which banks
in Boston, Massachusetts, are authorized or required by law or executive order
to remain closed.
CALENDAR YEAR: The First Calendar Year; the Last Calendar Year and full calendar
year (January 1 through December 31) occurring during the Lease Term.
COMMON AREAS: All areas devoted to the common use of occupants of the Building
or the provision of Services to the Building, including but not limited to the
atrium, all corridors, elevator foyers, air shafts, elevator shafts, and
elevators, stairwells and stairs, mechanical rooms, janitor closets, vending
areas and other similar facilities for the provision of Services or the use of
all occupants of multi-tenant floors or all occupants of the Building together
with all walkways and driveways necessary or appropriate for access to the
Building and the parking areas serving the Building.
CONTROL: As defined in the definition of Affiliate.
CORPORATION: A corporation, company, association, business trust or similar
organization wherever formed.
DEFAULT: Any event or condition specified in Article 20 hereof so long as any
applicable requirement for the giving of notice or lapse of time or both have
not been fulfilled.
EVENT OF DEFAULT: Any event or condition specified in (a) Article 20 hereof (if
all applicable periods for the giving of notice or lapse of time or both have
been fulfilled) or (b) in Article 21 hereof.
FIRST CALENDAR YEAR: The partial Calendar Year period commencing on the Term
Commencement Date and ending on the next succeeding December 31.
FORCE MAJEURE: Acts of God, strikes, lock outs, labor troubles, inability to
procure materials, failure of power, restrictive Legal Requirements, riots and
insurrection, acts of public enemy, wars, earthquakes, hurricanes and other
natural disasters, fires, explosions, any act, failure to act or Default of the
other party to this Lease; provided, however, lack of money shall not be deemed
such a cause.
GENERAL CONTRACTOR; N/A
GOVERNMENTAL AUTHORITY: United States of America, the Commonwealth of
Massachusetts, the town of Marlborough, County of Middlesex and any political
subdivision thereof and any agency, department, commission, board, bureau or
instrumentality of any of them.
INSOLVENCY: The occurrence with respect to any Person of one or more of the
following events: the death, dissolution, termination of existence (other than
by merger or consolidation), insolvency, appointment of a receiver for all or
substantially all of the property of such person, the making of a fraudulent
conveyance or the execution of an assignment or trust mortgage for
8
<PAGE>
the benefit of creditors by such Person, or the filing of a petition of
bankruptcy or the commencement of any proceedings by or against such Person
under a bankruptcy, insolvency or other law relating to the relief or the
adjustment of indebtedness, rehabilitation or reorganization of debtors;
provided that if such petition or commencement is involuntarily made against
such a Person and is dismissed within sixty (60) days of the date of such filing
or commencement, such events shall not constitute an insolvency hereunder.
INSURANCE REQUIREMENTS: All terms of any policy of insurance maintained by
Landlord or Tenant and applicable to (or affecting any condition, operation, use
or occupancy of) the Building or the Premises or any part or parts of either and
all requirements of the issuer of any such policy and all orders, rules,
regulations and other requirements of the National Board of Fire Underwriters
(or any other body exercising similar functions).
LAND: The land on 165 Forest Street, Marlborough, Massachusetts, County of
Middlesex, Commonwealth of Massachusetts.
LANDLORD'S CONTRIBUTION: The amount contributed by Landlord as a credit toward
the cost of finishing the Premises shown on Exhibit B.
LANDLORD'S WORK: The work to be done by Landlord with respect to the Premises
described on Exhibit B.
LAST CALENDAR YEAR: The partial Calendar Year commencing on January 1 of the
Calendar Year in which the Lease Termination Date occurs and ending on the Lease
Termination Date.
LEASE TERM: The period commencing on the Term Commencement Date and ending on
the Lease Termination Date.
LEASE TERMINATION DATE: The earlier to occur of (1) the Stated Expiration Date,
(2) the termination of this Lease by Landlord as the result of an Event of
Default, (3) the termination of this Lease pursuant to Article 17 (Damage or
Destruction) or 18 (Eminent Domain) hereof.
LEASE YEAR: A period commencing on the Term Commencement Date (or an anniversary
thereof) and ending on the day before the next succeeding anniversary thereof.
For example, the first Lease Year is a period commencing on the Term
Commencement Date and ending on the day before the first anniversary thereof.
The last Lease Year shall end on the Lease Termination Date.
LEGAL REQUIREMENTS: All statutes, codes, ordinances (and all rules and
regulations hereunder), all executive orders and other administrative orders,
judgments, decrees, injunctions and other judicial orders of or by any
Governmental Authority which may at any time be applicable to parts or
appurtenances of the Premises or Building or to any condition or use thereof and
the provisions of all Authorizations.
9
<PAGE>
OCCUPANCY ARRANGEMENT: With respect to the Premises or any portion thereof of
the Lease, and whether (a) written or unwritten or (b) for all or any portion of
the Lease Term, an assignment, a sublease, any tenancy at will, a tenancy at
sufferance, or any other arrangement (including but not limited to a license or
concession) pursuant to which a Person occupies the Premises for any purpose.
OPERATING EXPENSE BASE: With respect to each Calendar Year the amount determined
by multiplying the Rentable Area of the Premises by the amount hereinbefore set
forth as the Operating Expense Base per square foot of Rentable Area of the
Building per year, but with respect to the First Calendar Year and the Last
Calendar Year, the Adjusted Operating Expense Base.
OPERATING EXPENSES: All expenses, costs, and disbursements of every kind and
nature which Landlord shall pay or become obligated to pay in connection with
the ownership, operation and maintenance of the Building (including all
facilities in operation on the Term Commencement Date and such additional
facilities which are necessary or beneficial for the operation of the Building)
and the Land and the provision of Basic Services, including, but not limited to
(a) wages, salaries, fees and costs to Landlord of all Persons engaged in
connection therewith, including taxes, insurance, and benefits relating thereto;
(b) the cost of (i) all supplies and materials, electricity and lighting, for
Common Areas, (ii) water, heat, air conditioning, and ventilating for the
Building, (iii) all maintenance, janitorial, and service agreements, (iv) all
insurance, including the cost of casualty and liability insurance applicable to
the Building and Landlord's personal property used in connection therewith, (v)
repairs and general maintenance, (vi) capital items which are primarily for the
purpose of reducing Operating Expenses or which may be required by a
Governmental Authority, amortized over the reasonable life of the capital items
with the reasonable life and amortization schedule being determined by Landlord
in accordance with generally accepted accounting principles (provided that in
the event the reasonably estimated annual savings arising from the installation
of any such capital improvement shall exceed such annual amortization, Operating
Expenses shall include, in lieu of such amortization, such estimated annual
savings until the cost of such improvement shall have been completely
amortized), (vii) pursuing an application for an abatement of taxes pursuant to
Section 6.05 hereof to the extent not deducted from the abatement, if any,
received, and (viii) providing office space for the manager of the Building; (c)
management fees which shall not exceed 5% of the gross rent and only to the
extent that inclusion of such fees does not result in duplication of any
expenses, costs or disbursements otherwise included in Operating Expenses); and
(d) a share (equal to percentage computed by a fraction the numerator of which
is the Rentable Area of the Building and the denominator of which is the
aggregate Rentable Area of all constructed buildings (including the Building at
165 Forest Street), of the cost to Landlord of operating, repairing and
maintaining exterior common areas and facilities which may not be located
entirely on the Land but which are available for landscaping, security and
maintenance for common roadways and open areas. Operating Expenses shall not
include (i) capital items except as provided above or (ii) specific costs billed
to and paid by specific tenants. Operating Expenses shall be determined using
the accrual basis of accounting. If at any time during the term, less than
ninety-five percent (95%) of the Rentable Area of the project is occupied, the
Operating Expenses shall be adjusted by the Landlord to reasonably approximate
the Operating Expenses which would be incurred if the project had been at least
ninety-five percent (95%) occupied.
10
<PAGE>
PARTIAL TAKING: Any Taking which is not a Total Taking
PERMITTED EXCEPTIONS: Any liens or encumbrances on the Premises which do not
substantially interfere with Tenant's use and enjoyment of the Premises in the
nature of (a) liens for taxes assessed but not yet due and payable, (b)
easements, reservations, restrictions and rights of way encumbering or affecting
the Land on the date of this Lease, (c) the rights of Landlord, Tenant and any
other Person to whom Landlord has granted such rights to exercise in common with
respect to the Land and the Common Areas the rights granted to Tenant hereunder,
(d) mortgages of record, and (e) Title Conditions.
PERSON: An individual, a Corporation, a company, a voluntary association, a
partnership, a trust, an unincorporated organization or a government or any
agency, instrumentality or political subdivision thereof.
PREMISES: The space in the Building shown on Exhibit A attached hereto.
PROCEEDS: With respect to any Taking or occurrence described in Article 17
hereof, with respect to which any Person is obligated to pay any amount to or
for the account of Landlord, the aggregate of (i) all sums payable or receivable
under or in respect of any insurance policy, and (ii) all sums or awards payable
in respect to a Taking.
PROHIBITED OCCUPANCY ARRANGEMENT: An Occupancy Arrangement which provides for
any rent or other payment based in whole or in part on the net income or profits
derived by any person from the Premises.
REAL ESTATE TAX BASE: With respect to each Calendar Year the amount determined
by multiplying the Rentable Area of the Premises by the amount hereinbefore set
forth as the Real Estate Tax Base per square foot of Rentable Area of the
Premises per year, but with respect to the First Calendar Year and the Last
Calendar Year, the Adjusted Tax Base.
RENT: Basic Rent and all Additional Rent.
RENTABLE AREA OF THE PREMISES: The number of square feet stated in Section 1.01,
whether the same should be more or less as a result of minor variations
resulting from actual construction and completion of the Building or Premises so
long as such work is done in accordance with the terms and provisions hereof.
The calculation was made according to the following formula:
i. On single tenant floors, the usable area measured from the inside
surfaces of the outer glass of the Building, plus Tenant's Share of
Common Areas.
ii. On multi-tenant floors, the usable area measured from the inside
surface of the outer glass of the Building to the midpoint of all
demising walls of the space being measured plus the area of each
corridor adjacent to and required as the result of the layout of the
space being measured, measured from the midpoint of the adjacent
demising walls, plus Tenant's Share of Common Areas.
11
<PAGE>
RULES AND REGULATIONS: Reasonable rules and regulations promulgated by Landlord
and uniformly applicable to persons occupying the Building regulating the
details of the operation and use of the Building. The initial Rules and
Regulations are attached hereto as Exhibit F.
SERVICES: Basic Services and Additional Services.
SPECIAL WORK: Work done in or with respect to the Premises which is not part of
Landlord's Work or the cost of which exceeds Landlord's Contribution.
STATED EXPIRATION DATE: The last day of the last Lease Year of the Term stated
in Section 1.01.
SUBSTANTIAL COMPLETION DATE: The date on which the Premises together with the
appurtenant areas of the Building necessary for access and service thereto, have
been completed in accordance with Article 7 hereof except for items of work and
adjustment of equipment and fixtures which are not necessary to make the
Premises reasonably tenantable and suitable for the Permitted Uses and because
of season or weather or nature of the item cannot practicably be done at the
time.
TAKING: The taking or condemnation of title to all or any part of the Land or
the possession or use of the Building or the Premises by a person for any public
use or purpose or any proceeding or negotiations which might result in such a
taking or any sale or lease in lieu of or in anticipation of such a taking.
TAXES: All taxes, special or general assessments, water rents, rates and
charges, sewer rents and other impositions and charges imposed by Governmental
Authorities of every kind and nature whatsoever, extraordinary as well as
ordinary and each and every installment thereof which shall or may during the
term of this Lease be charged, levied, laid, assessed, imposed, and become due
and payable or become liens upon or for or with respect to the Land or any part
thereof or the Building or the Premises, appurtenances or equipment owned by
Landlord thereon or therein or any part thereof or on this Lease under or by
virtue of all present or future Legal Requirements and are tax based on a
percentage, fraction or capitalized value of the Rent (whether in lieu of or in
addition to the taxes hereinbefore described). Taxes shall not include
inheritance, estate, excise, succession, transfer, gift, franchise, income,
gross receipt, or profit taxes except to the extent such are in lieu of or in
substitution for Taxes as now imposed on the Building, the Land, the Premises or
this Lease.
TENANT: As defined in the preamble hereof.
TENANT'S COST: The cost of work done in connection with the completion of the
Premises in excess of (i) the cost of Landlord's Work and (ii) Landlord's
Contribution.
TENANT'S SHARE: Tenant's share of building is equal to T divided by B, where "T"
is equal to the number of rentable square feet rented by the Tenant and "B" is
equal to 100% of the total rentable square feet of the building.
TERM COMMENCEMENT DATE: The date set forth in Section 1.01 as the Term
Commencement Date.
12
<PAGE>
TITLE CONDITIONS: All covenants, agreements, restrictions, easements and
declarations of record on the date hereof which are permitted Exceptions so far
as the same may be from time to time in force and applicable.
TOTAL TAKING: (i) a Taking of: (a) the fee interest in all or substantially all
of the Building or (b) such title to, easement in, over, under or such rights to
occupy and use any part or parts of the Building to the exclusion of Landlord as
shall have the effect, in the good faith judgment of the Landlord, of rendering
the portion of the Building remaining after such Taking (even if restoration
were made) unsuitable for the continued use and occupancy of the Building for
the Permitted Uses or (ii) a Taking of all or substantially all of the Premises
or such title to or easement in, on or over the Premises to the exclusion of
Tenant which in the good faith judgment of the Landlord prohibits access to the
Premises or the exercise by Tenant of any rights under this Lease.
WORK LETTER: The agreement between Landlord and Tenant with respect to the
finishing of the Premises.
WORKING DRAWINGS: The Working Drawings for the finishing of the Premises
developed by Landlord and Tenant in accordance with the Work Letter. The Working
Drawings shall be prepared in compliance with all applicable Legal Requirements
and stamped by registered Massachusetts professionals, and shall consist of all
architectural and engineering plans which are required to finish the Premises or
to obtain any Authorization required therefore.
ARTICLE 2: PREMISES
2.01: PREMISES
Landlord hereby leases and lets to Tenant, and Tenant hereby takes and hires
from Landlord, upon and subject to the terms, conditions, covenants and
provisions hereof, the Premises subject to the Permitted Exceptions. Landlord
reserves the right to relocate within or without the Premises pipes, ducts,
vents, flues, conduits, wires and appurtenant fixtures which service other parts
of the Building; provided that such work is done in such a manner that it does
not unreasonably interfere with Tenant's use of the Premises either during the
course of performing such work or upon completion thereof. Landlord shall
deliver the Premises to Tenant free of all tenants and occupants on or before
January 1, 2001; however, if for any reason delivery of the premises to Tenant
is delayed beyond February 1, 2001 Tenant shall have the right to terminate
this Lease by notice to Landlord given at any time thereafter. In the event of
such termination, Landlord shall return the Security Deposit to Tenant within
(10) days following the giving of such termination notice. Landlord agrees upon
request by Tenant to execute and deliver a notice of lease in recordable form
and a commencement date agreement confirming the Term Commencement Date.
2.02: APPURTENANCES
Tenant may use the Common Areas and the Land as appurtenant to the Premises for
the purposes for which they were designed.
13
<PAGE>
ARTICLE 3: TERM
3.01: TERM COMMENCEMENT
The Lease Term shall commence on the Term Commencement Date as defined in
Section 1.01.
3.02: TERMINATION
The Lease Term shall end on the Lease Termination Date.
ARTICLE 4: RENT
4.01: BASIC RENT
Tenant shall pay Landlord for the Premises, without offset or deduction and
without previous demand therefore, the Basic Rent as annual rent for each Lease
Year. Basic Rent shall be paid in equal monthly installments in advance on the
first day of each calendar month during the Lease Term. The first installment of
Basic Rent shall be paid on the Rent Commencement Date. Subsequent installments
of Basic Rent shall be paid on the first day of every calendar month thereafter.
Basic Rent for partial months at the beginning or end of the Lease Term shall be
pro-rated and paid on the Term Commencement Date and the first day of the
calendar month in which the Lease Termination Date is to occur.
4.02: COMPUTATION OF BASIC RENT
The Basic Rent for each of the ten (10) Lease Years shall be stated in Article
1.01 hereof.
Basic Rent so determined shall be exclusive of (and in addition to) amounts due
hereunder for Taxes and Operating Expenses.
ARTICLE 5: USE OF PREMISES
5.01: USE RESTRICTED
The Premises may be used for the Permitted Uses and for no other purpose. No
improvements may be made in or to the Premises except as otherwise provided in
this Lease.
ARTICLE 6: TAXES; OPERATING EXPENSES; ESTIMATED COST OF ELECTRICAL SERVICES
6.01: EXPENSES AND TAXES
If with respect to any Calendar Year, Tenant's Share of (a) Operating Expenses
exceeds the Operating Expense Base or (b) Taxes exceeds the Tax Base (whether as
the result of an increase
14
<PAGE>
in rate or assessment or both), Tenant shall pay to Landlord the amount of each
such excess. Any amount due with respect to this Section 6.01 shall be due on
the date which is thirty (30) days after receipt by the Tenant of the statement
described in Section 6.02 hereof.
6.02: ANNUAL STATEMENT OF ADDITIONAL RENT DUE
Landlord shall render to Tenant a statement, showing (i) for the Calendar Year
so indicated (a) Taxes and (b) Operating Expenses and (ii) for the then current
Calendar Year, and estimate for (a) Operating Expenses (b) Taxes and (c)
Tenant's obligation under Section 6.01.
6.03: MONTHLY PAYMENTS OF ADDITIONAL RENT
Tenant shall pay to Landlord in advance for each calendar month of the Lease
Term falling between receipt by Tenant of the statement described in Section
6.02 and receipt by Tenant of the next such statement, as Additional Rent an
amount equal to 1/12th of Tenant's estimated obligation under Section 6.01 shown
thereon. The amount due under this Section 6.03 shall be paid with Tenant's
monthly payments of Basic Rent and shall be credited by Landlord to Tenant's
obligations under Section 6.01. If the total amount paid hereunder exceeds the
amount due under such Section, such excess shall be credited by Landlord against
the monthly installments of Additional Rent next falling due or shall be
refunded to Tenant upon the expiration or termination of this Lease (unless such
expiration or termination is the result of an Event of Default).
6.04: ACCOUNTING PERIODS
Landlord shall have the right from time to time to change the periods of
accounting hereunder to any other annual period than a Calendar Year, and upon
any such change, all items referred to in this Article 6 shall be appropriately
apportioned. In all statements rendered under Section 6.02, amounts for periods
partially within and partially without the accounting periods shall be
appropriately apportioned, and any items which are not determinable at the time
of a statement shall be included therein on the basis of Landlord's estimate and
with respect thereof Landlord shall render promptly after determination a
supplemental statement and appropriate adjustment shall be made according
thereto.
6.05: ABATEMENT OF TAXES
Landlord may at any time and from time to time make application to the
appropriate Governmental Authority for an abatement of Taxes. Landlord shall
make such an application at any time tenants occupying more than 60% of the
Rentable Area of the Building under written Occupancy Arrangements directly with
the Landlord request that Landlord do so. If (i) such an application is
successful and (ii) Tenant has made any payment in respect of Taxes pursuant to
this Article 6 for the period with respect to which the abatement was granted,
Landlord shall (a) deduct from the amount of the abatement all expenses incurred
by it in connection with the application (b) pay to Tenant Tenant's Share
(adjusted for any period for which Tenant has made a partial payment) of
abatement, with interest, if any, paid by the Governmental Authority on such
abatement and (c) retain the balance, if any.
15
<PAGE>
6.06: LATE PAYMENT OF RENT
If any installment of Basic Rent or Additional Rent is not received in full
within five (5) days of its due date then, in addition to any other rights or
remedies of the Landlord, upon demand of Landlord, Tenant shall pay for each
month that rental payments are not timely made, a sum equal to ten percent (10%)
of each unpaid portion of such monthly installment as a liquidated damages
charge arising out of and occurring as the result of each such late payment.
In the event that Tenant makes three (3) or more late payments of rent in any
given year during the Term, Landlord may deem such action to constitute an Event
of Default sufficient to terminate (i) the Lease (ii) any provision for exercise
by Tenant of any option rights under the Lease or (iii) both.
ARTICLE 7: IMPROVEMENTS, REPAIRS, ADDITIONS, REPLACEMENTS
7.01: PREPARATION OF THE PREMISES
Tenant will accept space "as-is" as shown on the attached Exhibits A - 1, A - 2
and A - 3. Tenant shall be responsible for the cost of all alterations and
improvements. Any alterations and improvements must first be approved by the
Landlord and be performed by contractors also approved by Landlord such
approvals not to be unreasonably withheld.
7.02: INTENTIONALLY OMITTED
7.03: DELAYS
If Landlord shall be delayed in substantially completing the work in the
Premises as the result of:
a) delay in delivery to Landlord of any plans, design work and detailed
drawing; or
b) Tenant's requests for Special Work or change to the Working
Drawings (notwithstanding Landlord's approval of such changes), or
c) delays in performance by Tenant or any Person employed by Tenant
which shall cause delays in the completion of any work to be done by
Landlord or which shall otherwise delay the substantial completion
of the Premises, or
d) any fault, negligence, omission, or failure to act on the part of
Tenant or its agents, contractors, workmen, mechanics, suppliers or
invitees, the Premises shall be deemed to be substantially completed
on (and the Term Commencement Date shall be) the estimated Term
Commencement Date.
7.04: TENANT'S ACCESS TO PREMISES
16
<PAGE>
Tenant and Tenant's agents, at Tenant's sole risk may enter the Premises prior
to the Term Commencement Date in order to do such work as may be required to
make the Premises ready for Tenant's use and occupancy thereof, such occupancy
to be conditioned upon Tenant and Tenant's agents, contractors, workmen,
mechanics, suppliers and invitees, working in harmony with Landlord and the
General Contractor and with other tenants and occupants of the Building. If at
any time such entry shall cause or threaten to cause disharmony or otherwise
interfere with the orderly completion of operation of the Building, Landlord
shall have the right to withdraw such permission upon twenty-four (24) hours
written notice to Tenant. Any such entry into and occupation of the Premises
shall be deemed to be under all of the terms, covenants, conditions and
provisions of this Lease except the covenant to pay Rent. Landlord shall not be
liable in any way for any injury, loss or damage which may occur to any of
Tenant's work and installations made in the Premises or to properties placed
therein prior to the Term Commencement Date, the same being at Tenant's sole
risk.
7.05: ALTERATIONS AND IMPROVEMENTS
Tenant shall not make alterations or additions to the Premises except in
accordance with plans and specifications therefore first approved by Landlord,
such approval not to be unreasonably withheld or delayed. Tenant shall not hang
shades, curtains, signs, awnings or other materials, attach any materials to or
make any change in the appearance of any glass visible from outside of the
Premises, add any window treatments of any kind or make improvements or install
furniture visible from outside of the Premises, without Landlord's prior written
consent, such approval not to be unreasonable withheld or delayed. Without
limitation, Landlord shall not be deemed unreasonable for withholding approval
of any alterations or additions which would (a) delay completion of the Premises
or the Building, or (b) require unusual expense to readapt the Premises to
normal office use upon termination of this Lease or increase (i) Landlord's cost
of (a) construction or (b) insurance or (ii) Taxes. All alterations and
additions (but not Tenant's furniture, fixtures or equipment which Tenant shall
have the right to remove at any time) shall be part of the Premises. All of
Tenant's alterations and additions and installation of furnishings shall be
coordinated with any work being performed by Landlord and in such manner as to
maintain harmonious labor relations and not to damage the Building or the
Premises or interfere with Building operation and, except for installation of
furnishings, shall be performed by contractors or workmen first approved by
Landlord, such approval not to be unreasonably withheld or delayed. Except for
work done by or through Landlord, Tenant before its work is started shall:
secure all licenses and permits necessary therefore; deliver to Landlord a
statement of the names of all its contractors and subcontractors and the
estimated cost of all labor and material to be furnished by them; and cause each
contractor to carry workmen's compensation insurance in statutory amounts
covering all the contractor's and subcontractor's employees and comprehensive
public liability insurance with limits as Landlord may reasonably require, but
in no event less than $1,000,000.00 and property damage insurance with limits of
not less than $1,000,000.00 and have deductibles of no more than $5,000.00 (all
such insurance to be written in companies approved by Landlord and insuring
Landlord and Tenant as well as the contractors), and to deliver to Landlord
certificates of all such insurance. Tenant agrees to pay promptly when due the
entire cost of any work done in the Premises by Tenant, its agents, employees or
independent contractors, and not to cause or permit any liens therewith to
attach to the Premises and immediately to discharge any such liens which may so
attach. All construction work done by Tenant, its agents, employees or
independent contractors shall be done in a good and workmanlike manner and in
compliance with all Legal Requirements and Insurance
17
<PAGE>
Requirements, Landlord shall promptly give notice to Tenant of any observed
defects.
7.07: MAINTENANCE
Tenant shall, at all times during the Lease Term, and at its own cost and
expense, (i) keep and maintain (or cause to be kept and maintained) the Premises
in good repair and condition (ordinary wear and tear and damage by fire or
casualty only excepted) and (ii) use all reasonable precaution to prevent waste,
damage or injury thereto.
7.08: REDELIVERY
On the Lease Termination Date, Tenant shall quit and surrender the Premises free
and clear of all tenants, occupants, liens, and encumbrances whatsoever except
(i) Permitted Exceptions and (ii) encumbrances, restrictions or reservations
caused by or consented to by Landlord Tenant shall, subject to the provisions of
Articles 17 and 18 hereof, surrender the Premises to Landlord broom clean and in
good condition and repair (ordinary wear and tear, damage by fire or
casualty-only excepted) with all damages occasioned by Tenant's removal of
Tenant's fixtures or equipment repaired at Tenant's cost to Landlord's
satisfaction.
ARTICLE 8: BUILDING SERVICES
8.01: BUILDING SERVICES
Landlord shall furnish, or cause to be furnished, during the Lease Term the
Basic Services.
8.02: OTHER JANITORS
No persons shall be employed by Tenant to do janitorial work in the Premises and
no persons other than the janitors of the Building shall clean the Premises
unless Landlord shall give its written consent thereto. Any person employed by
Tenant with Landlord's consent to do janitorial work shall, while in the
Building, either inside or outside the Premises, be subject to and under the
control and direction of the superintendent of the Building (but not as agent or
servant of said superintendent or of Landlord).
8.03: ADDITIONAL SERVICES
Tenant will pay the Landlord a reasonable charge for any extra cleaning of the
Premises required because of the carelessness or indifference of Tenant and for
any Additional Services rendered at the request of Tenant. If the cost of
cleaning the Premises shall be increased due to the installation in the
Premises, at Tenant's request, of any unique or special materials, finish or
equipment, Tenant shall pay the Landlord an amount equal to such increase in
cost. All charges for Additional Services shall be due and payable within ten
(10) days of the date on which they are billed.
8.04: LIMITATIONS ON LANDLORD'S LIABILITY
Landlord shall not be liable in damages, not in default hereunder, for any
failure or delay in
18
<PAGE>
furnishing any Basic Service or Additional Service when such failure or delay is
occasioned by Force Majeure or by the act or Default of Tenant. No such failure
or delay so occasioned shall be held or pleaded as eviction or disturbance in
any manner whatsoever of Tenant's possession or give Tenant any right to
terminate this Lease or give rise to any claim for set-off of any abatement of
Rent or of any of Tenant's obligations under this Lease.
8.05: ELECTRIC SERVICE
Landlord shall permit Tenant to receive electrical service directly from the
public utility supplying service to the Building and to use (in common with
others) the existing feeders, risers, wiring and other electrical facilities
serving the Premises for such purpose to the extent they are suitable and
safely capable. Tenant shall pay, directly to the utility furnishing the same,
all charges for electrical services to the Premises promptly when due.
ARTICLE 9: TENANT'S PARTICULAR COVENANTS
9.01: PAY RENT
Tenant shall pay when due all Rent and all charges for utility services rendered
to the Premises not included in Rent and, as further Additional Rent, all
charges of Landlord for Additional Services.
9.02: OCCUPANCY OF THE PREMISES
Tenant shall occupy the Premises continuously from the Term Commencement Date
for the Permitted Uses only. Tenant shall not (i) injure or deface the Premises
or the Building, (ii) install any sign in or on any window, demising wall or
Common Area, (iii) permit in the Premises any flammable fluids or chemicals not
reasonably related to the Permitted Uses nor (iv) permit nuisance or any use
thereof which is improper, offensive, contrary to any Legal Requirement or
Insurance Requirement or liable to render necessary any alteration or addition
to the Building.
9.03: SAFETY
Tenant shall keep the Premises equipped with all safety appliances required by
Legal Requirements or Insurance Requirements because of any use made by Tenant.
Tenant shall procure all Authorizations so required because of such use and, if
requested by Landlord, shall do any work so required because of such use, it
being understood that the foregoing provision shall not be construed to broaden
in any way the Permitted Uses.
9.04: EQUIPMENT
Tenant shall not place a load upon the floor of the Premises exceeding the live
load for which the floor has been designed; and shall not move any safe or other
heavy equipment in, about or out of the Premises except in such a manner and at
such a time as Landlord shall in each instance authorize. Tenant shall isolate
and maintain all of Tenant's business machines and mechanical equipment which
cause or may cause air-borne or structure-born vibration or noise, so as to
19
<PAGE>
eliminate such vibration or noise which may be transmitted to any other
Premises.
9.05: ELECTRICAL EQUIPMENT
Tenant shall not, without prior written notice to Landlord in each instance (i)
connect to the Building electric distribution system anything other than normal
office equipment or (ii) operate such equipment on a regular basis beyond normal
Building operating hours. Tenant's use of electrical energy in the Premises
shall not at any time exceed the capacity of any of the electrical conductors or
equipment in or otherwise serving the Premises. Tenant shall not, without prior
written notice to Landlord in each instance, connect to the Building electric
distribution system any fixtures, appliances of equipment which operate On a
voltage in excess of 120 volts nominal or make any alteration or addition to the
electric system of the Premises.
9.06: PAY TAXES
Tenant shall pay promptly when due all Taxes upon personal property (including,
without limitation, fixtures and equipment) in the Premises to whomsoever
assessed.
9.07: TENANT'S COVENANTS
Tenant will not vacate, abandon or desert the Premises or cause the Premises to
be empty or unoccupied.
ARTICLE 10: REQUIREMENTS OF PUBLIC AUTHORITY
10.01: LEGAL REQUIREMENTS
Tenant shall, at it's own cost and expense, promptly observe and comply with all
Legal Requirements relating to Tenant's use of the Premises and not to the
Building itself. Tenant shall pay all costs, expenses, liabilities, losses,
damages, fines, penalties, claims and demands, that may in any manner arise out
of or be imposed because of the failure of Tenant to comply with the covenants
of this Article 10.
10.02: CONTESTS
Tenant shall have the right to contest by appropriate legal proceedings
diligently conducted in good faith, in the name of the Tenant, or Landlord (if
legally required), or both (if legally required), without cost, expense,
liability or damage to Landlord, the validity or application of any Legal
Requirement and, if compliance with any of the terms of any such Legal
Requirement may legally be delayed pending the prosecution of any such
proceeding, Tenant may delay such compliance therewith until the final
determination of such proceeding.
20
<PAGE>
ARTICLE 11: COVENANT AGAINST LIENS
11.01: MECHANICS LIENS
Landlord's right, title and interest in the Premises or the Land or the Building
shall not be subject to or liable for liens of mechanics or materialmen for work
done on behalf of Tenant in connection with improvements to the Premises.
Notwithstanding such restriction, if because of any act or omission of Tenant,
any mechanic's lien or other lien, charge of order for payment of money shall be
filed against any portion of the Premises or the Land or the Building, Tenant
shall, at its own cost and expense, cause the same to be discharged of record or
bonded, within thirty (30) days after the filing thereof.
11.02: RIGHT TO DISCHARGE
Without otherwise limiting any other remedy of Landlord for default hereunder,
if Tenant shall fail to cause such liens to be discharged of record or bonded
within the aforesaid thirty (30) day period or to satisfy such liens within (30)
days after any judgment in favor of such lien holders from which no further
appeal might be taken then Landlord shall have the right to cause the same to be
discharged. All amounts paid by Landlord to cause such liens to be discharged
shall constitute Additional Rent.
ARTICLE 12: ACCESS TO PREMISES
12.01: ACCESS
Landlord or Landlord's agents and designers shall have the right, but not the
obligation, to enter upon the Premises at all reasonable times and upon
reasonable notice during ordinary business hours to examine same and to exhibit
the Premises to prospective purchasers and tenants, but in the latter case only
during the last twelve (12) months of the Lease Term.
ARTICLE 13: ASSIGNMENT AND SUBLETTING: OCCUPANCY ARRANGEMENTS.
13.01: SUBLETTING AND ASSIGNMENT
Tenant shall not (either voluntarily or by operation of law) enter into a
Prohibited Occupancy Arrangement, and any Prohibited Occupancy Arrangement shall
be absolutely void and ineffective for any purpose. Tenant shall not enter into
any other Occupancy Arrangement, either voluntarily or by operation of law,
(other than with a Person who is Affiliate of Tenant for a period ending when,
as and if such Person ceases to be Affiliate of Tenant) without the prior
written consent of Landlord, such consent not to be unreasonably withheld or
delayed.
If Tenant intends to enter into an Occupancy Arrangement which requires
Landlord's consent, Tenant shall so notify Landlord in writing, stating the name
of (and a financial statement with respect to) the Person whom Tenant intends to
enter into such Arrangement, the exact terms of
21
<PAGE>
the Arrangement and a precise description of the portion of the Premises
intended to be subject thereto. Within sixty (60) days of receipt of such
writing, Landlord shall either (i) consent to such Occupancy Arrangement or (ii)
not consent to such Occupancy Arrangement by giving tenant written notice of
Landlord's decision such notice will include landlord's reasons for not
consenting to a specific Occupancy Arrangement (iii) terminate this Lease with
respect to so much of the Premises as is intended to be subject thereto.
If the Landlord consents to such Occupancy Arrangement, Tenant shall (i) enter
into such Arrangement on the exact terms described to Landlord within thirty
(30) days of Landlord's consent or comply again with their terms of this Section
and (ii) remain liable for the payment and performance of the terms and
covenants of this Lease. If Tenant enters into such an Arrangement, Tenant shall
pay to Landlord when received the excess, if any, of amounts received above all
reasonable transaction costs, in respect of such Occupancy Arrangement over the
Rent.
If Landlord terminates this Lease, all Rent due shall be adjusted as of the day
the Premises (or portion thereof) are redelivered to Landlord. Any portion of
the Premises so redelivered shall be in the condition specified in Section 7.08
hereof.
ARTICLE 14: INDEMNITY
14.01: TENANT'S INDEMNITY
To the fullest extent permitted by law, Tenant shall indemnify and save harmless
Landlord from and against any and all liability, damage, penalties or judgments
and from and against any claims, actions, proceedings and expenses and costs in
connection therewith, including reasonable counsel fees arising from injury to
person or property sustained by anyone in and about the Building or the Premises
or the Land by reason of an act or omission of Tenant, or Tenant's officers,
agents, servants, employees, contractors, sublessees or invitees. Tenant shall,
at its own cost and expense, defend any and all suits or actions (just or
unjust) in which Landlord may be impleaded with others upon any such above
mentioned matter, claim or claims, except as may result from the acts as set
forth in Section 14.02. All merchandise, furniture, fixtures and property of
every kind, nature and description of Tenant or Tenant's employees, agents,
contractors, invitees, visitors, or guests which may be in or upon the Premises,
the Land or the Building during the Lease Term shall be at the sole risk and
hazard of Tenant, and that if the whole or any part thereof shall be damaged,
destroyed, stolen or removed by reason of any cause or reason whatsoever, other
than the negligence or willful default of Landlord, no part of said damage or
loss shall be charged to or borne by Landlord.
14.02: LANDLORD'S LIABILITY
Except for its intentional acts of negligence or the intentional acts or
negligence of its officers, agents, servants, employees or contractors, Landlord
shall not be responsible or liable for any damage or injury to any property,
fixtures, buildings or improvements, or to any person or persons, at any time in
the Premises, including any damage or injury to Tenant or to any of Tenant's
officers, agents, servants, employees, contractors, invitees, customers or
sublessees.
22
<PAGE>
ARTICLE 15: INSURANCE
15.01: LIABILITY INSURANCE
Tenant shall provide or cause to be provided at its expense, and keep in force
during the Lease Term, general comprehensive liability insurance in a good and
solvent insurance company or companies licensed to do business in the
Commonwealth of Massachusetts, selected by Tenant, and reasonably satisfactory
to Landlord, and in an amount reasonably required by Landlord but in any event
not less than One Million Dollars ($1,000,000.00) with respect to injury or
death to any one person and One Million Dollars ($1,000,000.) with respect to
injury or death to more than one person in any one accident of other occurrence
and One Million Dollars ($1,000,000,00) with respect to damages to property.
Such policy or policies shall include Landlord as an additional insured and have
deductibles of no more than $5,000,00. Tenant agrees to deliver certificates of
such insurance to Landlord as of the date hereof and thereafter not less than
ten (10) days prior to the expiration of any such policy. Such insurance shall
not be cancelable without thirty (30) days, written notice to Landlord.
15.02: CASUALTY INSURANCE
Tenant shall cause its improvements to the Premises to be insured for the
benefit of Landlord and Tenant as their respective interests may appear, against
loss or damage by fire and customary extended coverage in an amount equal to (i)
the replacement value thereof, if insurance in such amount is available, or (ii)
the amount necessary to avoid the effect of co-insurance provisions of the
applicable policies. Certificates thereof shall be delivered to Landlord,
Landlord shall, at Tenant's cost and expense, cooperate fully with Tenant and
execute any and all consents and other instruments and take all other actions
necessary to obtain the largest possible recovery. Landlord shall not carry any
insurance concurrent in coverage and contributing in the event of loss with any
insurance required to be furnished by Tenant hereunder if the effect of such
separate insurance would be to reduce the protection or the payment to be made
under Tenant's insurance.
ARTICLE 16: WAIVER OF SUBROGATION
16.01: WAIVER OF SUBROGATION
All insurance policies carried by either party covering the Premises, including
but not limited to contents, fire and casualty insurance, shall expressly waive
any right on the part of the insurer to make any claim against the other party.
The parties hereto agree that their policies will include such waiver clause or
endorsement.
16.02: WAIVER OF RIGHTS
Landlord and Tenant each hereby waive all claims, causes of action and rights of
recovery against the other and their respective partners, agents, officers and
employees, for any damage to or destruction of persons, property or business
which shall occur on or about the Premises and shall result from any of the
perils insured under any and all policies of insurance maintained by
23
<PAGE>
Landlord and Tenant, regardless of cause, including the negligence of either
party and their respective agents, officers and employees but only to the extent
of recovery, if any under such policy or policies of insurance; provided
however, that this waiver shall be invalidated in the event any such insurer
would be relieved from the obligation to make payment pursuant to a policy of
insurance by reason of this waiver.
ARTICLE 17: DAMAGE OR DESTRUCTION
17.01: SUBSTANTIAL DAMAGE
If the Building or any part thereof shall be damaged by fire or other casualty
to the extent that substantial alteration or reconstruction of the Building
shall, in Landlord's sole opinion, be required (whether or not the Premises
shall have been damaged) or if payment is used to retire the mortgage debt,
Landlord may, at its option, terminate this Lease by notifying Tenant in writing
of such termination within sixty (60) days after the date of such damage. If
this Lease is so terminated, Rent shall be abated as of the date of such damage.
17.02: RESTORATION
If Landlord does not terminate this Lease pursuant to Section 17.01, Landlord
shall, within seventy-five (75) days after such fire or other casualty, proceed
with reasonable diligence to repair and restore the Building (subject to Force
Majeure) to substantially the same condition in which it was immediately prior
to the occurrence of the casualty including Landlord's Work and the value of
Landlord's Contribution. Landlord shall not be required to rebuild, repair, or
replace any part of Tenant's furniture, furnishings or fixtures or equipment.
Landlord shall not be liable for any inconvenience or annoyance to. Tenant or
injury to the business of Tenant resulting in any way from such damage or the
repair thereof, except that, Landlord shall allow Tenant a fair diminution of
Rent during the time and to the extent the Premises are unfit for occupancy.
ARTICLE 18: EMINENT DOMAIN
18.01: TOTAL TAKING
If the Premises or the Building should be the subject of a Total Taking, then
this Lease shall terminate as of the date when physical possession of the
Building or the Premises is taken by the condemning authority.
18.02: PARTIAL TAKING
If there occurs a Partial Taking (limited to Partial Takings where the operation
of the Building is no longer reasonably feasible), Landlord (whether or not the
Premises are affected thereby) may terminate this Lease by giving written notice
thereof to Tenant within sixty (60) days after the right of termination accrues,
in which event this Lease shall terminate as of the date the Building or
Premises is taken by the condemning authority. If upon such Partial Taking this
Lease is not terminated, Rent shall be abated by an amount representing that
part of the Rent properly allocable to the portion of the Premises so taken and
Landlord shall, at Landlord's sole expense,
24
<PAGE>
restore and reconstruct the Building and the Premises to substantially their
former condition to the extent that the same, in Landlord's judgment, may be
feasible, but such work shall not exceed the scope of Landlord's Work and the
value of Landlord's Contribution. The Landlord shall have no liability for
interruption of Tenant's business.
18.03: AWARDS AND PROCEEDS
All Proceeds payable in respect of Taking shall be the property of Landlord.
Tenant hereby assigns to Landlord all rights of Tenant in or to such Proceeds,
provided that Tenant shall be entitled to separately petition the condemning
authority for a separate award for its moving expenses and trade fixtures but
only if such a separate award will not diminish the amount of Proceeds payable
to Landlord.
ARTICLE 19: QUIET ENJOYMENT
19.01: LANDLORD'S COVENANT
Provided that an Event of Default has not occurred and is not then continuing,
Tenant shall subject to the Permitted Exceptions, quietly have and enjoy the
Premises during the Lease Term, without hindrance or molestation from any Person
lawfully claiming by, through or under Landlord.
19.02: SUBORDINATION
This Lease is and shall be subject and subordinate to any mortgage now or
hereafter on the Building and to each advance made or hereafter to be made under
any mortgage, and to all renewals, modifications, consolidations, replacements
and extensions thereof and all substitutions therefore. This Section 19.02 shall
be self-operative and no further instrument of subordination shall be required.
In confirmation of such subordination, Tenant shall execute and deliver promptly
any certificate that Landlord or any mortgagee may request. In the event that
any mortgagee shall succeed to the interest of Landlord then this Lease shall
nevertheless continue in full force and effect and Tenant shall and does hereby
agree to attorn to such mortgagee and to recognize such mortgagee as its
Landlord.
19.03: NOTICE TO MORTGAGEE
No act or failure to act on the part of Landlord which would entitle Tenant
under the terms of this Lease, or by law, to be relieved of Tenant's obligations
hereunder or to terminate this Lease, shall result in a release or termination
of such obligations or a termination of this Lease unless (i) Tenant shall have
first given written notice of Landlord's act or failure to act to Landlord's
mortgagees of which Tenant shall have received notice from Landlord, if any,
specifying the act or failure to act on the part of Landlord which could or
would give basis to Tenant's rights; and (ii) such mortgagees, after receipt of
such notice, have had the opportunity to cure such default within a reasonable
time thereafter; but nothing contained in this Section 19.03 shall be deemed to
impose any obligation on any such mortgagees to correct or cure any such
condition. "Reasonable time" as used above shall mean a period of not less than
thirty (30) Business Days and shall include (but not be limited to) a reasonable
time to obtain possession of the Building if
25
<PAGE>
the mortgagee elects to do so and a reasonable time to correct or cure the
condition if such condition is determined to exist.
19.04: OTHER PROVISIONS REGARDING MORTGAGEES
If this Lease or the Rent due hereunder is assigned to a mortgagee as collateral
security for a loan, no such mortgagee shall be deemed to have assumed any of
Landlord's obligations hereunder solely as a result of said assignment. A
mortgagee to whom this Lease has been so assigned shall be deemed to have
assumed such obligations only if (i) by the terms of the instrument of
assignment such mortgagee specifically elects to assume such obligations or (ii)
such mortgagee has (a) foreclosed its mortgage, (b) accepted a deed in lieu
thereof, or (c) taken possession of the Premises by entry or otherwise. If such
mortgagee assumes the obligations of Landlord hereunder, such mortgagee will be
liable for breaches of any Landlord's obligations hereunder only to the extent
such breaches occur during the period of ownership by the mortgagee after
foreclosure (or any conveyance by a deed in lieu thereof or taking of
possession), all as set forth in Section 25.10 hereof. Tenant may from time to
time, at mortgagees request, be required to provide mortgagee with certain
financial information pertaining to the Tenant as mortgagee may reasonably
request.
ARTICLE 20: DEFAULTS; EVENTS OF DEFAULT
20.01: DEFAULTS
The following shall, if any requirement for notice or lapse of time or both has
not been met, constitute Defaults, and, if such requirements for notice or lapse
of time have been met, constitute Events of Default hereunder:
1) Occurrence of any event set forth in Article 21 hereof;
2) The failure of Tenant to pay Rent when the same shall be due and
payable and the continuance of such failure for a period of ten (10)
days after receipt by Tenant of notice in writing from Landlord
specifying such failure;
3) The failure of Tenant to observe any covenant made by it in Sections
13.01, 15.01 and 25.03 hereof and;
4) The failure of Tenant to keep, observe or perform any of the other
covenants, conditions and agreements herein contained on Tenant's
part to be kept, observed or performed and the continuance of such
failure without the curing of same for a period of twenty (20) days
after receipt by Tenant of notice in writing from Landlord
specifying in reasonable detail the nature of such failure.
20.02: TENANT'S BEST EFFORTS
In the event that the Default of which Landlord gives notice is of such a nature
that it cannot be cured within such twenty (20) day period, then such Default
shall not be deemed to be an Event of Default so long as Tenant, after receiving
such notice, proceeds to cure the Default as soon as
26
<PAGE>
reasonably possible and continues to take all steps necessary to complete the
same within a period of time which, under all prevailing circumstances, shall be
reasonable. No Default shall be deemed to be an Event of Default if and so long
as Tenant shall be so proceeding to cure the same in good faith or be delayed in
or prevented from curing the same by reason of Force Majeure.
20.03: ELIMINATION OF DEFAULT
Notwithstanding anything to the contrary contained in this Article 20, in the
event that a Default has been cured as hereinabove provided, such Default(s)
shall be deemed never to have occurred and Tenant's rights hereunder shall
continue unaffected by such Defaults.
ARTICLE 21: INSOLVENCY
21.01: INSOLVENCY
If (1) there occurs with respect to Tenant an Insolvency or (2) any execution or
attachment is issued against Tenant or any of its property and as a result
thereof the Premises are taken or occupied by some Person other than the Tenant,
except as may herein be permitted, then an Event of Default hereunder shall be
deemed to have occurred so that the provisions of Article 22 hereof shall become
effective and Landlord shall have the rights and remedies provided for therein.
ARTICLE 22: LANDLORD'S REMEDIES; DAMAGES ON DEFAULT
22.01: LANDLORD'S REMEDIES
If an Event of Default shall occur and be continuing, Landlord may, at its
option, give to Tenant a notice terminating this Lease upon a date specified in
such notice, which date shall be not less than three (3) Business Days after the
date of receipt by Tenant of such notice from Landlord, and upon the date
specified in said notice, the term and estate hereby vested in Tenant shall
cease and any and all other right, title and interest of Tenant hereunder shall
likewise cease without further notice or lapse of time, as fully and with like
effect as if the entire Lease Term had elapsed, but Tenant shall continue to be
liable to Landlord as hereinafter provided.
If such Event of Default results from Tenant's failure to pay a charge for an
Additional Service pursuant to Section 8.03 hereof, Landlord may, without
further notice to Tenant, discontinue any or all of such Additional Services.
If an Event of Default shall occur and be continuing, Landlord shall be relieved
of its undertakings under Article 13 hereof.
22.02: SURRENDER
Upon any termination of this Lease as the result of an Event of Default, Tenant
shall quit and peacefully surrender the Premises to Landlord, upon or at any
time after any such termination,
27
<PAGE>
Landlord may without further notice enter the Premises and possess itself
thereof by summary proceedings or otherwise, and may dispossess Tenant and
remove Tenant and all other Persons and property from the Premises and may have,
hold and enjoy the Premises and the right to receive all rental income of and
from the same.
22.03: RIGHT TO RELET
At any time from time to time after any such termination, Landlord shall use
reasonable efforts to relet the Premises or any part thereof, in the name of
Landlord, for such terms or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the Lease Term) and on
such reasonable conditions (which may include such concessions or free rent as
are then typical in the local real estate market for similar space) as Landlord,
in its reasonable discretion, may determine and may collect and receive the
rents therefore. Landlord shall in no way be responsible or liable for any
failure to relet the Premises or any part thereof, or for any failure to collect
any rent due upon any such reletting except in each event for any failure to use
reasonable efforts.
22.04: SURVIVAL OF COVENANTS
No such termination of this Lease shall relieve Tenant of its liability and
obligations under this Lease and such liability and obligations shall survive
any such termination. Tenant shall indemnify and hold Landlord harmless from all
loss, cost, expense, damage or liability arising out or in connection with such
termination.
In the event of any such termination, Tenant shall pay to the Landlord the Rent
up to the date of such termination. Tenant shall also pay to Landlord, on
demand, as and for liquidated and agreed damages for Tenant's Default, the
difference between
1) the aggregate Rent which would have been payable under this" Lease
by Tenant from the date of such termination until the Stated
Expiration Date, less
2) the fair and reasonable rental value of the Premises for the same
period, excluding all of Landlord's reasonable estimate of expenses
to be incurred in connection with reletting the Premises, including,
without limitation, all repossess costs, brokerage commission, legal
expenses, reasonable attorney's fees, alteration costs, and expenses
of preparation for such reletting.
If the Premises or any part thereof are relet by the Landlord before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such reletting shall be, prima facie,
the fair and reasonable rental value for the part or the whole of the Premises
so relet during the term of the reletting.
Nothing herein contained shall limit or prejudice the right of the Landlord to
prove and obtain as liquidated damages by reason of such termination, an amount
equal to the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, such damages are to be proved,
whether or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
28
<PAGE>
22.05: RIGHT TO EQUITABLE RELIEF
If there shall occur a Default or threatened Default, Landlord shall be entitled
to enjoin such Default or threatened Default and shall have the right to invoke
any right and remedy allowed at law or in equity or by statute or otherwise as
though re-entry, summary proceedings, and other remedies were not provided for
in this Lease provided that the provisions of this Lease shall govern as to
notice and grace periods, damages and otherwise to the extent specifically
addressed in this Lease.
22.06: RIGHT TO SELF HELP: INTEREST ON OVERDUE RENT
If an Event of Default shall occur and be continuing, Landlord shall have the
right, but shall not be obligate, to enter upon the Premises and to perform such
obligation notwithstanding the tact that no specific provision for such
substituted performance by Landlord is made in this Lease with respect to such
Default. In performing such obligation, Landlord may make any payment of money
of perform any other act. The aggregate of (i) all sums so paid by Landlord,
(ii) interest (at the rate of 1 1/2% per month or the highest rate permitted by
law, whichever is less) on such sum plus all Rent not paid when due and (iii)
all necessary incidental costs and expenses in connection with the performance
of any such act by Landlord, shall be deemed to be Rent under this Lease and
shall be payable to Landlord immediately upon demand. Landlord may exercise the
foregoing rights without waiving any other of its rights or releasing Tenant
from any of its obligations under this Lease.
22.07: FURTHER REMEDIES
Upon any termination of this Lease pursuant to Section 22.01, or at any time
thereafter, Landlord may, in addition to and without prejudice to any other
rights and remedies Landlord shall have at law or in equity, re-enter the
Premises, and recover possession thereof and may dispossess any or all occupants
of the Premises in the manner prescribed by the statute relating to summary
proceedings, or similar statute(s); but Tenant in such case shall remain liable
to Landlord as hereinbefore provided.
ARTICLE 23: WAIVERS
23.01: NO WAIVERS
Failure of Landlord to complain of any act or omission on the part of the other
party no matter how long the same may continue, shall not be deemed to be a
waiver by said Landlord of any of its rights hereunder. No waiver of any
provision of this Lease shall be deemed a waiver of a breach of the same or any
other provision. No acceptance by Landlord of any partial payment shall
constitute an accord or satisfaction but shall only be deemed a partial payment
on account.
29
<PAGE>
ARTICLE 24: SECURITY DEPOSIT
24.01: SECURITY DEPOSIT
Tenant has deposited the Security Deposit with Landlord. Landlord shall hold the
Security Deposit as security for the full and faithful payment or performance by
Tenant of its obligations under this Lease and not as a prepayment of Rent.
Though, Landlord may at any time and at its sole discretion decide to use the
Security Deposit as prepayment of Rent for the tenth year (last lease year) of
this lease. Landlord may commingle the Security Deposit with other funds of
Landlord. Landlord shall be liable to Tenant for the payment of interest at 4%
per annum which shall be due and payable from the Landlord to Tenant every
twelve (12) months from the commencement of this Lease. Interest on Tenants
Security Deposit shall only be due and payable as long as Tenant has not entered
into an event of default. Landlord may expend such amounts from the Security
Deposit as may be necessary to cure any Default and, in such case, Tenant shall
pay to Landlord the amount so expended, on demand to restore the Security
Deposit to its original amount. Landlord may assign the Security Deposit to any
subsequent owner of the Building and thereafter Landlord shall have no further
liability to Tenant with respect thereto who shall confirm its obligations
hereunder to Tenant. As soon as reasonably practicable after the Lease
Termination Date, Landlord shall (i) inspect the Premises, (ii) make such
payments from the Security Deposit as may be required to cure any outstanding
Events of Default hereunder and (iii) if no Event of Default is then continuing,
pay the balance of the Security Deposit to Tenant.
ARTICLE 25: GENERAL PROVISIONS
25.01: FORCE MAJEURE
In the event that Landlord or Tenant shall be delayed, hindered in or prevented
from the performance of any act required hereunder by reason of Force Majeure,
then performance of such act shall be excused for the period of the delay and
the period for the performance of any such act shall be extended for a period
equivalent to the period of such delay.
25.02: NOTICES AND COMMUNICATIONS
All notices, demands, requests and other communications provided for or
permitted under this Lease shall be in writing, either delivered by hand or sent
by first class mail, postage prepaid, to the following address:
a) if to Landlord at the address stated in Section 1.01 hereof, or at
such other address as the Landlord shall have designated in writing
to the Tenant, with a copy to such Persons as Landlord shall have
designated in writing to Tenant, or
b) if to Tenant at the address stated in Section 1.01 hereof, or at
such other address, as the Tenant shall have designated in writing
to the Landlord, with a copy to such Persons as Tenant shall have
designated in writing to Landlord.
30
<PAGE>
Any notice provided for herein shall become effective only upon and at the time
of receipt by the Person to whom it is given, unless such notice is mailed by
first-class registered or certified mail, in which ease it shall be deemed to be
received on (i) the third Business Day following the mailing thereof or (ii) the
day of its receipt, if a Business Pay, or the next succeeding Business Day,
whichever of (i) or (ii) shall be the earlier.
25.03: CERTIFICATES, ESTOPPEL LETTER
Either party shall, without charge, at any time and from time to time hereafter,
within ten (10) days after written request of the other, certify by written
instrument duly executed and acknowledged to any mortgagee or purchaser, or
proposed mortgagee or proposed purchaser, or any Person specified in such
request; (a) as to whether this Lease has been supplemented or amended, and if
so, the substance and manner of such supplement or amendment, (b) as to the
validity and force constituted, (c) as to the existence of any Default or Event
of Default, (d) as to the existence of any offsets, counterclaims or defenses
thereto on the part of such other party, (e) as to the Term Commencement Date
and Stated Expiration Date, and (f) as to any other matters as may reasonably
be so requested. Any such certificate may be relied upon by the party requesting
it and any other Person to whom the same may be exhibited or delivered, and the
contents of such certificate shall be binding on the party executing same.
Tenant shall in addition, upon request following the Term Commencement Date,
within ten (10) Business Days of the request therefore execute and deliver to
Landlord a tenant estoppel letter substantially in the form attached hereto as
Exhibit G.
25.04: RENEWAL
If this Lease is renewed or extended the provisions of Sections 7.01, 7.02,
7.03, 7.04, and 7.05 of Article 7 hereof shall not require either party to
perform the construction obligations set forth therein.
25.05: GOVERNING LAW
This Lease and the performance thereof shall be governed, interpreted, construed
and regulated by the laws of the Commonwealth of Massachusetts.
25.06: PARTIAL INVALIDITY
If any term, covenant, condition or provision of this Lease or the application
thereof to any person Or circumstance shall, at any time or to any extent, be
invalid Or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
is held invalid or unenforceable, shall not be affected thereby, and each term,
covenant, condition and provision of this Lease shall be valid and be enforced
to the fullest extent permitted by law.
31
<PAGE>
25.07: INTERPRETATION; CONSENTS
The section headings used herein are for reference and convenience only, and
shall not enter into the interpretation hereof. This Lease may be executed in
several counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument. Whenever any consent of Landlord is
required to be obtained hereunder, such consent shall hot be unreasonably
withheld or delayed.
The term "Landlord" whenever used herein, shall mean only the owner at the time
of Landlord's interest herein, and shall upon any sale or assignment (other than
as collateral security for a loan) of the interest of the Landlord herein, its
respective successors in interest and/or assigns shall, during the term of
ownership of its respective estates herein, be deemed to be Landlord and the
liability of Landlord, if any, hereunder shall in any event be limited to the
Landlord's interest in the Building.
25.08: BIND AND INURE; LIMITATION OF LANDLORD'S LIABILITY
The obligations of this Lease shall run with the land, and this Lease shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. No owner of the Land and Building shall be liable under
this Lease except for breaches of Landlord's obligations occurring while owner
of the Land and Building. The obligations of Landlord shall be binding upon the
assets of Landlord which comprise of only the Land and Building but not upon
other assets of Landlord. No individual partner, trustee, stockholder, officer,
director, employee or beneficiary of Landlord shall be personally liable under
this Lease and Tenant shall look solely to Landlord's interest in the Land and
Building in pursuit of its remedies upon an Event of Default hereunder, and the
general assets of Landlord and its "partners, trustees, stockholders, officers,
employees or beneficiaries of Landlord shall not be subject to levy, execution
or other enforcement procedure for the satisfaction of the remedies of Tenant.
25.09: PARTIES
Except as herein otherwise expressly provided, the covenants, conditions and
agreements contained in this Lease shall be binding upon the heirs, successors
and assigns of the parties hereto.
25.10: WAIVER OF TRIAL BY JURY
Landlord and Tenant do hereby waive trial by jury in any action, proceeding or
counterclaim brought by either against the other upon any matters whatsoever
arising out of or in any way connected with this Lease, Tenant's use or
occupancy of the Premises and/or claim or injury or damage.
32
<PAGE>
ARTICLE 26: MISCELLANEOUS
26.01: HOLDOVER CLAUSE
In the event Tenant fails to vacate the premises by the Lease Termination Date,
Tenant hereby agrees to pay Landlord two (2) times the monthly rental rate. The
"Holdover Rental Rate" shall be paid monthly in advance to Landlord. In
determining the "Holdover Rental Rate" Landlord shall charge (2) times the gross
monthly rental rate for the last full calendar month under the lease. In
addition to the "Holdover Rental Rate", Landlord shall be entitled to seek to
recover full damages sustained as a result of said holdover.
26.02: RIGHT OF FIRST REFUSAL
So long as Tenant is not in default under this Lease Tenant shall have the Right
of First Refusal to lease the first floor of the Building and all remaining
available space on the second floor of the Building. If at any time or from time
to time the owner receives an offer from a third party to lease all of or part
of the Right of First Refusal space, Landlord shall first notify Tenant, in
writing, of the terms and conditions of the Right of First Refusal Offer and the
space to which it relates. Tenant shall then have ten (10) business days after
receiving the Right of First Refusal Notice to notify Landlord, in writing, that
Tenant irrevocable elects to lease Right of First Refusal space specified in the
Notice on the same financial terms and conditions as the third party offer but
otherwise upon the terms and conditions of this Lease, If Tenant does not elect
to lease such space, Landlord shall be free to lease the Right of First Refusal
space specified in such Notice to said third party. Tenant shall confirm with
Landlord that the rental is on the same terms as the third party offer, rather
than on the same rental as the Lease. This article shall subordinate to any and
all existing conditions.
26.03: SIGNAGE
Landlord will provide Tenant with signage on the main lobby directory, floor
directory and Tenant Suite door.
Tenant at its sole cost and with Landlord's prior written approval shall have
the right to place its own identification on the exterior wall of the Building
facing Route 495 similar in size and location to that of the current Tenant and
in accordance with local zoning ordinance.
26.04: BROKERAGE
Tenant warrants and represents to Landlord that it has had no dealings with any
broker or agent in connection with this Lease other than Meredith and Grew and
CB Richard Ellis and covenants to defend, with counsel approved by Landlord,
hold harmless and indemnify Landlord from and against any and all cost, expense
or liability for any compensation, commissions and charges claimed by any broker
or agent other than Meredith and Grew and CB Richard Ellis.
33
<PAGE>
ARTICLE 27: ENTIRE AGREEMENT
27.01: ENTIRE AGREEMENT
No oral statement or prior written matter shall have any force or effect. This
Agreement shall not be modified or canceled except by writing subscribed to by
all parties.
No representations, inducement, promises or agreements, oral or otherwise,
between Landlord and Tenant or any of their respective brokers, employees or
agents, not embodied herein, shall be of any force or effect.
Executed as a sealed instrument as of the 12 day of December, 2001.
LANDLORD: /s/ David P. Depietri
-----------------------------
By: David P. Depietri
Its: Trustee
TENANT: /s/ Kenneth Zolot
----------------------------
By: KENNETH ZOLOT
its: Treasurer & COO
34
<PAGE>
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is entered into as of the 3 day of June,
2001 by and between 165 FOREST STREET REALTY TRUST OF 1992, a Massachusetts
nominee trust recorded in Book, 22791 Page 557 of Middlesex South District
___________________________Registry of Deeds as Landlord ("Landlord") and
EGENERA, INC., a Massachusetts corporation, as Tenant ("Tenant").
WHEREAS, Landlord and Tenant are parties to that certain lease dated
December 12, 2000 (the "Lease") pursuant to which Tenant is leasing certain
premises known as Suites 200, 300 and 400 and containing approximately 31, 277
rentable square feet, more fully described in the Lease (the "Premises") within
the Building located at 165 Forest Street, Marlborough, Middlesex County,
Massachusetts together with the right to use the Common Areas and the Land
appurtenant to the Premises as each is defined in the Lease; and
WHEREAS, Landlord and Tenant desire to amend and confirm certain
provisions of the Lease as herein provided.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for ten dollars ($10) and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Landlord and Tenant hereby
agree as follows:
1. Landlord and Tenant agree that there is hereby substituted for the
definition of "Term Commencement Date" in Section 1.01 of the Lease
the date "January 1, 2001".
2. Landlord and Tenant further agree that there is hereby added to the
definition of "Land" in Section 1.03 of the Lease the words "more
fully described on Exhibit H hereto."
3. Landlord and Tenant further agree that (a) the Landlord under the
Lease is David D. Depietri, as Trustee of 165 FOREST STREET REALTY
TRUST OF 1992, a Massachusetts nominee trust recorded in Book, 22791
Page 557 of the South District Registry of Deeds and that said David
D. Depietri signed the Lease solely in his capacity as Trustee and
not individually, and (b) the Tenant under the Lease is Egenera,
Inc., a Massachusetts corporation and that Kenneth Zolot signed the
lease solely in his capacity as Treasurer and COO of Egenera, Inc.
and not individually.
4. Landlord and Tenant hereby ratify and confirm the Lease and agree
that except as amended hereby the Lease shall remain unmodified and
in full force and effect as heretofore.
<PAGE>
WITNESS the execution hereof as an instrument under seal this______ day of
February, 2001
LANDLORD:
/s/ David P. Depietri
-------------------------------------------
David P. Depietri, as Trustee of 165 Forest
Street Realty Trust of 1992, and not
individually
TENANT:
EGENERA, INC.,
By: /s/ Kenneth Zolot
---------------------------------------
Kenneth Zolot, its Treasurer and
COO, and not individually
COMMONWEALTH OF MASSACHUSETTS)
)
COUNTY OF MIDDSEX )
Then personally appeared before me the above-named David P. Depietri, the
Trustee of 165 Forest Street Realty Trust of 1992, and acknowledged that he
signed, sealed and delivered the foregoing instrument as Trustee as aforesaid as
his free act and deed as Trustee of 165 Forest Street Realty Trust, before me.
/s/ Eileen Betts
--------------------------------------
Notary Public
My commission expires: 2-8-02
Notarial Seal
COMMONWEALTH OF MASSACHUSETTS)
)
COUNTY OF WORCESTER )
Then personally appeared before me the above-named Kenneth Zolot, the Treasurer
and Chief Operating Officer of Egenera, Inc. and acknowledged that he signed,
sealed and delivered the foregoing instrument by order of the Board of Directors
of such corporation as the free act and deed of said corporation, before me.
<PAGE>
/s/ Michelle Buote
--------------------------------------
Notary Public
My commission expires: 10/2/03
Notarial Seal
<PAGE>
SECOND LEASE AMENDMENT
This Second Lease Amendment ("Second Amendment") is made this 16 day of
November, 2001 by and between 165 FOREST STREET REALTY TRUST OF 1992, with a
mailing address c/o Rosewood Management Corporation, 293 Boston Post Road West,
Suite 320, Marlborough, Massachusetts, 01752 (hereafter referred to as
"Landlord") and EGENERA, Inc., a Massachusetts Corporation, with a principal
place of business at 165 Forest Street, Marlborough, MA (hereinafter referred to
as "Tenant").
WITNESSETH
WHEREAS, Landlord and Tenant have entered into a certain lease dated December
12, 2000 which was amended pursuant to a First Lease Amendment dated June 3,
2001 (hereinafter collectively referred to as the "Lease") wherein Landlord
leased to Tenant and Tenant leased from Landlord certain premises consisting of
31,277 square feet (the "original Premises") located on the second, third and
fourth floors of the building located at 165 Forest Street, Marlborough,
Massachusetts (the "Building").
WHEREAS, Tenant wishes to lease from Landlord and Landlord wishes to lease to
Tenant additional space located on the second floor of the Building upon the
terms and conditions hereinafter set forth.
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Landlord and Tenant hereby incorporate all terms and provisions of the
Lease herein as is specifically set forth, except as said terms are modified
herein. Capitalized terms not specifically defined in this Second Amendment
shall have the same meaning ascribed to them in the Lease.
2. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord
approximately 6,186 square feet of rentable floor area (hereinafter referred to
as the "Expansion Space") located on the second floor of the Building, which
Expansion Space is hereby agreed to be that certain space which is shown
cross-hatched on Exhibit AX attached hereto and made apart hereof, for a term
commencing (the "Expansion Space Commencement Date") on January 1, 2002 and
continuing (and including) December 31, 2010. Landlord hereby consents to
Tenants work shown on BX.
3. Effective as of the Expansion Space Commencement Date, the Rentable Area
of Premises shall be increased by 6,186 rentable square feet (RSF) (the
"Expansion Space") to a total of 37,463 RSF of office space and computer lab.
4. Tenant and Landlord hereby agree that Tenant accepts the Expansion Space
in an "As Is" condition including the existing furniture presently located in
the space.
<PAGE>
5. Effective as of the Expansion Space Commencement Date, Section 1.01 OF
LEASE AGREEMENT
a. Delete:
"RENTABLE AREA OF PREMISES: 31,277."
b. Insert:
"RENTABLE AREA OF PREMISES: 37,463."
6. Section 1.01 OF LEASE AGREEMENT
a. Delete:
"BASIC RENT: Delete section and all amendments thereto in their
entirety."
b. Insert:
"BASIC RENT: See schedule below:
RENTABLE MONTHLY
PERIOD SQUARE FEET RATE / RSF ANNUAL RENT RENT
---------- ----------- ---------- ----------- ----------
1/1/2001 - 31,277 $21.00 $656,817.00 $54,734.75
1231/2001
1/1/2002 - 37,463 $20.66 $773,985.58 $64,498.79
12/31/2005
1/1/2006 - 37,463 $21.66 $811,448.58 $67,620.71
12/31/2010
7. Effective as of the Expansion Lease Commencement Date, Section 1.01 of
Lease Agreement is hereby amended by inserting at the end of the definition of
Premises the following: "plus the expansion Space shown on the Exhibit AX
hereto.
<PAGE>
8. Effective as of the Expansion Lease Commencement Date, Section 1.01 of
Lease Agreement:
a. Delete:
"TENANT'S SHARE: 63.88%"
b. Insert:
"TENANT'S SHARE: 76.51%
9. Landlord and Tenant hereby represent that it has delt with no broker in
this expansion of its office space except for Merideth and Grew, Inc. of whose
fees shall be paid by Landlord.
In all other respects the Lease is hereby ratified, confirmed, and approved.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed the Second Lease
Amendment under seal as of the 16 day of November, 2001
LANDLORD: 165 FOREST STREET REALTY TRUST OF 1992
/s/ David P. Depietri
----------------------------------------
By: David P. Depietri
Its: Trustee
TENANT: EGENERA, Inc., a Massachusetts Corporation
/s/ Kenneth Zolot
----------------------------------------
By: Kenneth Zolot
Its: Treasurer & Chief Operating Officer
<PAGE>
THIRD LEASE AMENDMENT
This Third Lease Amendment ("Second Amendment") is made this 4th day of December
2002 by and between 165 FOREST STREET REALTY TRUST OF 1992, with a mailing
address c/o Rosewood Management Corporation, 293 Boston Post Road West, Suite
320, Marlborough, Massachusetts, 01752 (hereafter referred to as "Landlord") and
EGENERA, Inc., a Massachusetts Corporation, with a principal place of business
at 165 Forest Street, Marlborough, MA (hereinafter referred to as "Tenant").
WITNESSETH
WHEREAS, Landlord and Tenant have entered into a certain lease dated December
12, 2000 which was amended pursuant to a First Lease Amendment dated June 3,
2001 and a Second Lease Amendment dated November 16, 2001 (hereinafter
collectively referred to as the "Lease") wherein Landlord leased to Tenant and
Tenant leased from Landlord certain premises consisting of 37,463 square feet
(the "original Premises") located on the second, third and fourth floors of the
building located at 165 Forest Street, Marlborough, Massachusetts (the
"Building").
WHEREAS, Tenant wishes to lease from Landlord and Landlord wishes to lease to
Tenant additional space located on the first floor of the Building upon the
terms and conditions hereinafter set forth.
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Landlord and Tenant hereby incorporate all terms and provisions of the
Lease herein as is specifically set forth, except as said terms are modified
herein. Capitalized terms not specifically defined in this Third Amendment shall
have the same meaning ascribed to them in the Lease.
2. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord
approximately 6,026 square feet of rentable floor area (hereinafter referred to
as the "Expansion Space") located on the first floor of the Building, which
Expansion Space is hereby agreed to be that certain space which is shown
cross-hatched on Exhibit AX attached hereto and made a part hereof, for a term
commencing (the "Expansion Space Commencement Date") upon execution of the Third
Lease Amendment and continuing (and including) through December 31, 2010.
3. Effective as of the Expansion Space Rent Commencement Date (January 1,
2003), the Rentable Area of Premises shall be increased by 6,026 rentable square
feet (RSF) (the "Expansion Space") to a total of 43,489 RSF of office space and
computer lab space.
4. Tenant and Landlord hereby agree that Tenant accepts the "Expansion Space"
in an "As Is" condition and that Tenant shall have immediate access to the
"Expansion Space" upon execution of the Third Lease Amendment. Tenant Agrees to
not alter the "Expansion Space" until Landlord has approved any or all
alterations in writing, which approval shall not be unreasonably withheld,
delayed or denied.
<PAGE>
5. Effective as of the Expansion Space Rent Commencement Date, Section 1.01
OF LEASE AGREEMENT
a. Delete:
"RENTABLE AREA OF PREMISES: 37,463".
b. Insert:
"RENTABLE AREA OF PREMISES: 43,489".
6. Section 1.01 OF LEASE AGREEMENT
a. Delete:
"BASIC RENT: Delete section and all amendments thereto in their
entirety."
b. Insert:
"BASIC RENT: See schedule below:
RENTABLE MONTHLY
PERIOD SQUARE FEET RATE/RSF ANNUAL RENT RENT
------ ----------- -------- ----------- ----------
1/1/2001 - 31,277 $21.00 $656,817.00 $54,734.75
12/31/2001
1/1/2002- 37,463 $20.66 $773,985.58 $64,498.79
12/31/2002
1/1/2003 - 43,489 $19.46 $846,295.94 $70,524.66
12/31/2005
1/1/2006- 43,489 $20.87 $907,615.43 $75,634.61
12/31/2010
7. Effective as of the Expansion Lease Commencement Date, Section 1.01 of
Lease Agreement is hereby amended by inserting at the end of the definition of
Premises the following: "plus the expansion Space shown on the Exhibit AX
hereto.
<PAGE>
8. Effective as of the Expansion Lease Commencement Date, Section 1.01 of
Lease Agreement:
a. Delete:
"TENANT'S SHARE: 76.51%"
b. Insert:
"TENANT'S SHARE: 88.82%
9. Landlord and Tenant hereby represent that it has delt with no broker in
this expansion of its office space except for Merideth and Grew, Inc. of whose
fees shall be paid by Landlord.
In all other respects the Lease is hereby ratified, confirmed, and approved.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed the Third Lease
Amendment under seal as of the 4th day of December, 2002
LANDLORD: 165 FOREST STREET REALTY TRUST OF 1992
/s/ David P. Depietri
----------------------------------------
By: David P. Depietri
Its: Trustee
TENANT: EGENERA, Inc., a Massachusetts Corporation
/s/ Thomas F. Sheehan
----------------------------------------
By: Thomas F. Sheehan
Its: Chief Financial Officer