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EXHIBIT 10.5
14611-111 5/24/88
LEDGEMONT REALTY TRUST
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LEASE TO
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X. X. XXXXX & COMPANY - CONN.
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INDEX
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ARTICLE
NUMBER CAPTION
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I FUNDAMENTAL LEASE PROVISIONS
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1.1 Reference Subjects
II PREMISES AND TERM
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2.1 Premises
2.2 Acceptance of Premises
2.3 Delay in Delivering Possession
2.4 Term
III LANDLORD WORK AND TENANT WORK
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3.1 Landlord Work
3.2 Tenant Work
3.2.1 General
3.2.2 Construction Documents
3.2.3 Performance of Tenant Work
3.2.4 Payment for Tenant Work
IV RENT
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4.1.1 Annual Fixed Rent Initial Term
4.2.1 Method of Payment
4.2.2 Net Return to Landlord
4.3.1 Additional Rent - Landlord's Taxes
4.3.2 Landlord's Taxes - Definition
4.4.1 Additional Rent - Operating Expenses
4.4.2 Landlord's Operating Expenses Definition
4.5 Allocation of Certain Operating Expenses
V ADDITIONAL COVENANTS
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5.1 Tenant's Covenants
5.1.1 Utilities and Services
5.1.2 Maintenance
5.1.3 Use and Compliance with Law
5.1.4 Liens and Encumbrances
5.1.5 Indemnity
5.1.6 Landlord's Right to Enter
5.1.7 Personal Property at Tenant's Risk
5.1.8 Overloading, Nuisance, Etc.
5.1.9 Yield Up
5.1.10 Holding Over
5.1.11 Assignment, Subletting
5.2 Building Services
5.2.1 Landlord's Maintenance
5.2.2 Electricity
5.2.3 Office Identification
5.2.4 Grounds Maintenance
5.2.5 Chemical Waste Disposal Systems
5.3 Interruptions
VI INSURANCE; CASUALTY; TAKING
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6.1.1 Public Liability Insurance
6.1.2 Insurance By Landlord
6.2 Waivers of Subrogation
6.3 Damage or Destruction of Premises
6.4 Eminent Domain
VII DEFAULT
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7.1 Events of Default
7.2 Remedies for Default
7.3 Remedies Cumulative
7.4 Effect of Waivers of Default
7.5 No Accord and Satisfaction; No Surrender
7.6 Waivers of Jury
7.7 Landlord's Curing and Enforcement
7.8 Landlord's Default
7.9 Minimum Net Worth
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VIII MISCELLANEOUS PROVISIONS
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8.1 Notice from One Party to the Other
8.2 Quiet Enjoyment
8.3 Limitation of Landlord's Liability
8.4 Excusable Delay
8.5 Applicable Law and Construction
8.6 Successors and Assigns
8.7 Relationship of the Parties
8.8 Estoppel Certificate
8.9 Notice of Lease
8.10 Construction on Adjacent Premises
8.11 Tenant as Business Entity
8.12 Relocation
IX 9.1 Brokers
X. LANDLORD'S FINANCING
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10.1 Superiority of Lease
10.2 Subordination
10.3 Assignment for Financing
10.4 Other Instruments
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.EB3 TAYD 5/24/88
LEASE
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ARTICLE I
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FUNDAMENTAL LEASE PROVISIONS
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1.1 REFERENCE SUBJECTS. Each reference in this Lease to any of the
following subjects shall be construed to incorporate the information stated for
that subject in this Section.
DATE: May 31, 1988
PREMISES: Portions of the Building known generally as the "300 Level" of
Building C and the East Wing of One Ledgemont Center more
particularly described by hatching on Appendix A attached.
BUILDING: The Building complex known as Ledgemont Development Center and
consisting of the "Xxxxxxxx House", "Building B," "B Annex,
"Building C," the parking garage and other appurtenances
thereto located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx.
LANDLORD: LEDGEMONT REALTY TRUST u/d/t dated December 12, 1984
ORIGINAL ADDRESS OF LANDLORD: c/x Xxxx & Company, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
LANDLORD'S MANAGING AGENT: Xxxx & Company, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
TENANT: X.X. Xxxxx & Co.- Conn., a Connecticut corporation
ORIGINAL ADDRESS OF TENANT: 00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
INITIAL TERM: The period between the Lease Commencement Date and the Lease
Ending Date, subject to the Tenant Termination Option
described below in this Section
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LEASE COMMENCEMENT DATE: June 1, 1988 or the date on which Landlord shall
have delivered possession of the Premises to
Tenant upon substantial completion of Landlord's
work (hereinafter defined), whichever date is
later. Notwithstanding the foregoing, if Landlord
shall deliver possession to Tenant of the portion
of the Premises generally known as the "300 Level"
of Building C (the "300 Level") prior to the
portion generally known as the East Wing of One
Ledgemont Center (the "East Wing"), or vice versa,
then the parties agree that the Lease Commencement
Date shall commence solely for the portion of the
Premises (whether it be the 300 Level or the East
Wing) for which Landlord shall be able to deliver
possession to Tenant, and the Annual Fixed Rent
and any additional rent payable hereunder
(prorated on the basis of the square footage
attributable to such portion) shall commence for
such portion. It is understood and agreed that
Tenant will accept delivery of the 300 Level broom
clean, and otherwise in its as is condition, and
that Landlord's Work to such area will be
performed promptly thereafter (and within 30 days
after receiving Tenant's plans).
LEASE ENDING DATE: May 31, 1993, subject to the Tenant Termination
Option described below in this Section.
ANNUAL FIXED RENT--INITIAL TERM:
$0 per month from the Lease Commencement Date until the date which is
the 181st day after the Lease Commencement Date.
$26,130 per month (or ratable portion thereof) from the date which
is the 181st day after the Lease Commencement Date through May 31,
1989
$366,219 per annum for the second Lease year (being June 1, 1989
through May 31, 1990)
$377,111 per annum for the third Lease year, subject to the Tenant
Termination Option described below in this Section
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$377,111 per annum for the fourth Lease year, subject to the Tenant
Termination Option described below in this Section
$399,244 per annum for the fifth Lease year
SECURITY DEPOSIT: None, except if, as when and to the extent provided for in
[section]5.1.11.
PARKING SPACES: 44
TENANT'S PERCENTAGE SHARE: 16.62%. Landlord covenants and agrees that, for the
purposes of this Lease, Tenant's Percentage Share shall not, except as provided
in [section]4.5, be increased for any reason whatsoever, unless Tenant shall
lease additional space in the Project.
PERMITTED USES: Laboratories for research and related offices.
PUBLIC LIABILITY INSURANCE: $5,000,000 BROKER: Coldwell Banker Commercial Real
Estate Group
APPENDICES: Appendix A - Premises Sketch Plan
Appendix B - Special Maintenance and Operation
Requirements
Appendix C - Initial Hazardous Substances or
Materials per Section 5.1.8
Appendix D - Tenant Work Insurance Schedule
Appendix E - Standard Tenant Improvement Work
Letter
LANDLORD'S
WORK: Landlord covenants and agrees that the following described
work (hereinafter collectively referred to as "Landlord's
Work"), shall be performed with due diligence, at no cost or
expense to Tenant, in a good and workmanlike manner and using
new materials. Landlord shall submit to Tenant within 10 days
after the date hereof, for Tenant's prior written approval not
to be unreasonably withheld or delayed, Landlord's plans and
specifications for incorporating the work described in
Appendix E in the East Wing. If Tenant has not given Landlord
its approval, or has not notified Landlord of its disapproval,
of such plans and specifications within 5 business days after
receipt of the same by Tenant, such plans and specifications
shall be deemed approved. If Tenant notifies Landlord of its
disapproval of all or any portion of such plans and
specifications, Tenant shall provide Landlord with a
reasonable description of the matters thereon as to which
Tenant disapproves Landlord shall promptly (but in no event in
more than 10 days) revise such plans
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and specifications and resubmit same to Tenant. Landlord shall
use its best efforts substantially to complete the performance
of Landlord's Work (except for punchlist items, mechanical
systems adjustments and the like) such that a temporary or
permanent certificate of occupancy can be issued if Landlord's
Work were the only work to the Premises within 4 months after
the date of Tenant's approval of such plans and specifications
subject to delays described in [section]8.4. If Landlord shall
fail so to deliver possession of the entire premises, subject
to delays described in [section]8.4, within 4 months after
Tenant's such approval and Tenant shall not have occupied all
or any part of such East Wing Premises, then Tenant shall be
given a partial rent abatement in the amount of 2,500 per
month (or ratable portion thereof), not, however, to exceed
$5,000, for such delay exceeding 4 months from such approval,
subject to [section]8.4, until such delivery or occupancy; and
if such possession has not been delivered or occupancy
occurred within 6 months from such approval, subject to delays
due to the act or neglect of Tenant, its employees, agents or
independent contractors, then Tenant shall have the right, at
its sole option, to terminate this Lease on written notice to
Landlord delivered before such delivery of possession, and
upon delivery of such notice, this Lease shall be null and
void.
1. Installation of a reasonable number of benches in the
laboratories from Landlord's inventory in the 300
Level.
2. Installation of a reasonable number of
partitions/walls to create additional office space in
the 300 Level of Building C, as mutually agreed upon.
3. Access to outside solvent storage shed shown on
Appendix A-1 of this Lease.
4. Cosmetic improvements, such as touch-up painting and
new ceiling tiles, as needed in the 300 Level.
5. Building standard improvements to the office space in
the East Wing in accordance with the Standard Tenant
Improvement Work Letter attached as Appendix E, and
certain space plans dated May 16, 1988.
TENANT
TERMINATION
OPTION:
By (1) notice given to Landlord at least 9, but not more than
12) months prior to May 31, 1991 ("First Cancellation Date")
or prior to May 31, 1992 ("Second Cancellation Date") and (2)
Tenant
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thereafter making the following Termination Payments when and
as due, Tenant may terminate the term of this Lease
respectively upon the First Cancellation Date or Second
Cancellation Date. If the Lease is to be so determined on the
First Cancellation Date, then Tenant shall pay to Landlord, as
consideration for such termination option, the sum of $150,000
on the First Cancellation Date and, upon such payment the Term
of this Lease shall be deemed to have expired by its terms and
such date shall be deemed the last day of the Term; and if the
Lease is to be so terminated on the Second Cancellation Date,
then Tenant shall pay to Landlord, as consideration for such
termination option, the sum of $75,000 on the Second
Cancellation Date and, upon such payment the Term of this
Lease shall be deemed to have expired by its terms and such
date shall be deemed the last day of the Term.
ARTICLE II
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PREMISES AND TERM
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2.1 PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, the Premises identified in Section 1.1, subject to and with the
benefits of the terms, covenants and conditions of this Lease, and of rights,
agreements, easements and restrictions of record applicable to the property of
which the Premises are a part, all of which Tenant shall perform and observe
insofar as the same are applicable to the Premises. Subject to the rules and
regulations reasonably established by Landlord from time to time, provided such
rules and regulations are enforced without discrimination against all tenants in
the Building, Tenant shall have the appurtenant rights in common with others to
use (a) the exterior walkway, sidewalks, driveways, grounds, elevators and other
common areas of the Building serving the Premises; and (b) up to the number of
Parking Spaces as set forth in Section 1.1 for the non-exclusive use of Tenant
and Tenant's employees and business invitees in areas designated from time to
time by Landlord and which Landlord will not materially diminish without
reasonably promptly providing replacement parking without Tenant's prior written
consent. The existing parking area is shown on Appendix A-2 of this Lease.
Landlord excepts and reserves the right from time to time (a) to install,
use, maintain, repair, replace and relocate within the Premises (provided the
same shall not materially reduce the size of the Premises and provided in the
case of the East Wing only the same shall to the extent practicable be concealed
behind the existing floors and ceilings of the Premises) and other parts of
Building, pipes, meters and other equipment, machinery, apparatus and
appurtenant fixtures; and (b) to make additions to the Building and alter or
relocate any entranceways, common areas or other facilities (including without
limitation all access driveways, walkways and parking areas) serving the
Premises.
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2.2 ACCEPTANCE OF PREMISES. Tenant acknowledges that it has inspected the
Premises and accepts the same in the condition they are now in, or may be in on
the Commencement Date, it being expressly agreed that Landlord shall have no
obligation, liability or risk whatsoever with respect to the Premises or their
condition except as expressly set forth herein with respect to the performance
of Landlord's Work, and except for latent defects not discoverable through
prudent inspection by a competent professional engineer. Tenant further
acknowledges that neither Landlord nor any agent or employee of Landlord has
made any representations or warranties, express or implied, concerning the
Premises, their condition or this Lease.
2.3 DELAY IN DELIVERING POSSESSION. If there is a holding over or retention
of possession of the Premises, or any portion thereof, by any prior tenant or
occupant, or if Landlord shall otherwise be unable to deliver possession of the
Premises due to causes beyond its reasonable control, then Landlord shall not be
subject to any liability for the failure or delay in giving possession; but
Annual Fixed Rent, additional rent and any other charges or amounts payable
hereunder by Tenant shall be entirely abated until the same is delivered to
Tenant or until Tenant occupies all or any part of the Premises (in which case
Tenant shall be subject to all obligations with respect to the portion of either
the 300 Level or the East Wing so occupied, or both if any part of both is so
delivered or occupied). No such failure to give possession shall in any other
respect affect the validity of this Lease (including the date on which the Term
ends) or any other of the obligations of Tenant; provided, however, that none of
Tenant's obligations hereunder shall commence until Landlord shall deliver
possession as aforesaid or Tenant shall occupy all or any part of the Premises.
If Landlord shall not have delivered possession to Tenant of (and Tenant shall
not have so occupied) the East Wing Space, then Tenant shall have the right,
upon written notice to Landlord, to terminate this Lease upon the terms set
forth in [section]1.1 under "Landlord's Work".
2.4 TERM. This Lease is for an initial Term beginning on the Commencement
Date and ending on the Ending Date as set forth in Section 1.1.
ARTICLE III
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LANDLORD WORK AND TENANT WORK
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3.1 LANDLORD WORK. Except as provided in Section 5.2 , Landlord shall not
be required to perform any work in connection with Tenant's occupancy of the
Premises.
3.2 TENANT WORK.
3.2.1 GENERAL. "Tenant Work" shall mean all work, including demolition,
improvements, additions and alterations (which will not include hanging
pictures, screens for video projection, removable shelving and the like), in or
to the premises, without
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limiting the generality of the foregoing, Tenant work shall specifically include
all attached carpeting, all signs visible from the exterior of the Premises, and
any change in the exterior appearance of the windows in the Premises (including
shades, curtains and the like). All Tenant Work shall be subject to Landlord's
prior written approval, which approval shall not be unreasonably withheld or
delayed, and shall be arranged and paid for by Tenant as provided herein. Tenant
shall neither propose nor effect any Tenant work (i) which affect any structural
component of the Building (including, without limitation, exterior walls,
exterior windows, core walls, roofs, or floor slabs), (ii) which is incompatible
with the electrical or mechanical components or systems of the Building, (iii)
which affects in any respect other space in the Building other than the
Premises, including the exterior of the Building), (iv) which diminishes the
value of the Premises for any general purpose office use, (v) or which might
require any unusual expense to re-adapt the Premises for any general purpose
office use. In addition, with respect to any floor not occupied entirely by
Tenant, Tenant shall neither propose nor effect any Tenant Work consisting of
improvements, additions, or alterations to the entranceway to the Premises or
any adjoining elevator lobby, corridor, or common area; and with respect to
floors entirely occupied by Tenant, any such work will be in compliance with
this Article III.
3.2.2 CONSTRUCTION DOCUMENTS. No Tenant Work shall be effected except
in accordance with complete, consistent, final construction drawings and
specifications ("Construction Documents") approved in advance by Landlord in
writing, which approval shall not be unreasonably withheld or delayed. The
Construction Documents shall be prepared by an architect ("Tenant's Architect")
experienced in the construction of tenant space improvements in buildings in the
greater Boston" area and approved by Landlord in writing, which approval shall
not be unreasonably withheld or delayed. Tenant shall be solely responsible for
the liabilities of and expenses of all architectural and engineering services
relating to Tenant Work and for the adequacy, accuracy, and completeness of the
Construction Documents approved by Landlord, even if Tenant's architect has been
otherwise engaged by Landlord in connection with the Building. The Construction
Documents shall set forth in reasonable detail the requirements for construction
of the Tenant Work (including all architectural, mechanical, electrical and
structural drawings and detailed specifications), shall be fully coordinated
with one another and with field conditions as they exist in the Premises and
elsewhere in the Building, and shall show all work necessary to complete the
Tenant Work, including all cutting, fitting, and patching and all connections to
the mechanical and electrical systems and components of the Building. Submission
of the Construction Documents to Landlord for all shall be deemed a
determination by Tenant's Architect exercised reasonably, jointly an severally,
that all Tenant Work described in the Construction Documents (i) complies with
all applicable laws, regulations and building codes, (ii) does not materially
and adversely affect any structural component of the Building (including,
without Limitation, exterior walls, exterior windows, core walls, roofs or floor
slabs) (iii) is compatible with the electrical and mechanical components and
systems of the building, (iv) does not affect any space in the Building other
than the premises (including the exterior of the Building), and (v) conforms to
floor loading limits. Landlord's approval of Construction Documents shall only
signify Landlord's consent to the Tenant Work shown thereon and shall not result
in any
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responsibility of Landlord concerning compliance of the Tenant Work with laws,
regulations, or codes, coordination of any aspect of the Tenant work with any
other aspect of the Tenant Work or any component or system of the Building, or
the feasibility of constructing the Tenant Work without damage or harm to the
Building, all of which shall be the sole responsibility of Tenant.
3.2.3 PERFORMANCE OF TENANT WORK. The identity of any person or entity
(including any employee or agent of Tenant) performing any Tenant Work ("Tenant
Contractor") shall be subject to Landlord's prior written approval, which
approval shall not be unreasonably withheld or delayed. Once any Tenant
Contractor has until been approved, then the same may thereafter be used by
Tenant until Landlord notifies that such Tenant Contractor is no longer
approved, using reasonable standards and stating with reasonable specificity the
reason for Landlord's withdrawal of its approval. Tenant shall procure all
necessary governmental permits, licenses and approvals before undertaking any
Tenant Work. Tenant shall perform all Tenant Work at Tenant's risk in compliance
with all applicable laws, codes and regulations and in a good and workmanlike
manner employing new materials of good quality and producing a result at least
equal in quality to the other parts of the premises. When any Tenant Work is in
progress, Tenant shall cause to be maintained (i) insurance as described in the
Tenant Work Insurance Schedule attached hereto as Appendix D and such other
insurance as may be reasonably required by Landlord covering any additional
hazards due to such Work, and (ii) a statutory xxxx xxxx pursuant to M.G.L.
c.254, (TradeMark)12 or any successor statute (or such other protection of
Landlord's interest in the Building against liens as Landlord may reasonably
require), in each case for the benefit of Landlord. It shall be a condition of
Landlord's approval of any Tenant Work that certificates of such insurance and a
xxxx xxxx in recordable form, both issued by responsible insurance companies
qualified to do business in Massachusetts and reasonably approved by Landlord,
shall have been deposited with Landlord, that Tenant has provided Tenant's
certification of its reasonable estimate of the insurable value of the work in
question for casualty insurance purposes, and that all of the other conditions
of the Lease, which are Tenant's obligation to perform or for which Tenant is
liable under the terms hereof, have been satisfied. Tenant shall reimburse
Landlord's reasonable costs of reviewing proposed Tenant Work reasonably
estimated to cost more than $10,000 in any one instance and inspecting
installation of the same in a timely manner. At a times while performing Tenant
Work Tenant, Tenant shall require any Tenant Contractor to comply with all
applicable laws, regulations, permits and policies relating to such work of the
City. In performing Tenant Work each Tenant Contractor shall comply with
Landlord's reasonable requirements relating to the time and methods for such
work, use of delivery elevators and other Building materially facilities; and
each Tenant Contractor shall not materially interfere or disrupt any other
tenant or other person using the Building. Each Tenant Contractor shall in all
events work on the Premises without causing labor disharmony, delay or impair
any guaranties, warranties or obligations of any contractors of Landlord. If any
Tenant Contractor uses any Building services or facilities, such Contractor,
jointly and severally with Tenant, shall agree to reimburse Landlord for the
actual cost thereof based on Landlord's schedule of charges established from
time to time (and if no such charges have been established, then based on
Landlord's reasonable charge
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established at the time). Each Tenant Contractor shall, by entry into the
Building, be deemed to have agreed to indemnify and hold the Indemnities
harmless from any claim, loss or expense arising in whole or in part out of any
act or neglect committed by such person while in the Building, to the same
extent as Tenant has so agreed in this Lease, the indemnities of Tenant and
Tenant Contractor to be joint and several.
3.2.4 PAYMENT FOR TENANT WORK. Tenant shall pay the cost of all Tenant Work
in a timely manner so that the Premises shall always be free of liens for labor
or materials. If any mechanic's lien (which term shall include all similar liens
relating to the furnishing of labor and materials) is filed against the Premises
or the Building or any part thereof which is claimed to be attributable to
Tenant, its agents, employees or contractors, Tenant shall promptly discharge
the same by payment or filing any necessary bond within 10 days after Tenant has
notice (from any source) of such mechanic's lien. Landlord may, as a condition
of its approval of any Tenant work, require Tenant to deposit with Landlord a
bond, letter of credit or other similar security in the amount of Landlord's
reasonable estimate of the value of such work securing Tenant's obligations to
make payments for such Work.
ARTICLE IV
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RENT
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4.1.1 ANNUAL FIXED RENT - INITIAL TERM. Annual Fixed Rent during the
initial Term of this Lease shall be the amount per annum set forth in Section
1.1.
4.2.1 METHOD OF PAYMENT. Tenant covenants and agrees to pay the Annual
Fixed Rent to Landlord in advance in equal monthly installments (or in the
appropriate monthly installments for monthly periods during any Lease year, if
and as referred to in Section 1.1) on the first day of each calendar month
during the Term beginning on the Commencement Date. "Lease year" shall mean the
twelve month period following the Commencement Date (unless the Commencement
Date is other than the first day of a month, in which case "Lease year" shall
mean the twelve month period following the initial partial month). Tenant shall
make ratable payment of Annual Fixed Rent for any portion of a Lease year (or
month) in which the same accrues, all payments of Annual Fixed Rent and
additional rent and other sums due hereunder to be paid in current U.S. exchange
at the Original Address of Landlord or such other place as Landlord may by
Notice in writing to Tenant from time to time direct, without demand and without
set-off or deduction.
Without limiting the generality of the foregoing, Tenant's obligation so to
pay shall not be discharged or otherwise affected by reason of the application
of any law or regulation now or hereafter applicable to the Premises, or any
other restriction of or interference with the use thereof by Tenant, or (except
as and to the extent expressly provided herein) any damage to or destruction of
the Premises by casualty or taking, or on account of any failure by Landlord to
perform hereunder or otherwise, or due to any other occurrence; nor (except as
expressly provided herein) shall Tenant ever be entitled and
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Tenant hereby waives all rights now or hereafter conferred by statute or
otherwise to quit, terminate or surrender this Lease or the Premises or any part
thereof, or to assert any defense in the nature of constructive eviction to any
action seeking to recover rent. Tenant shall, however, have and maintain,
subject to the provisions hereof, the right to seek and obtain from time to time
judgments for direct money damages occasioned by Landlord's breach of the
covenants of this Lease.
4.2.2 NET RETURN TO LANDLORD. It is intended that Annual Fixed Rent payable
hereunder shall be a net return to Landlord throughout the Term, free of
expense, charge, offset, diminution or other deduction whatsoever on account of
the Premises (excepting financing expenses, federal and state income taxes of
general application and those expenses which this Lease expressly makes the
responsibility of Landlord), and all provisions hereof shall be construed in
terms of such intent.
4.3.1 ADDITIONAL RENT - LANDLORD'S TAXES. Tenant covenants and percentage
agrees to pay to Landlord, as additional rent, Tenant's Percentage Share (as set
forth in Section 1.1) of Landlord's Taxes (hereafter defined) for each fiscal
tax period, or ratable portion hereof, included in the Lease Term in monthly
installments on the first day of each month in amounts reasonably estimated from
time to time by Landlord to provide for the full payment of Tenant's obligation
with respect to Landlord's Taxes on the date such Taxes are due. When the actual
amount of Landlord's Taxes are determined from time to time, the parties agree
to promptly make adjustments for any overpayments or underpayments made by
Tenant. Any overpayment will be promptly reimbursed to Tenant and any
underpayments will promptly be paid by Tenant upon receipt of a statement
setting forth with reasonable specificity the amount of such underpayment.
Landlord agrees that, if any amount of such underpayment. Landlord agrees that,
it any such estimations are more than 25% higher than the actual amount of
Landlord's Taxes payable by Landlord without taking into account abatements or
other efforts by Landlord to reduce real estate tax assessments, then Landlord
will promptly remit to Tenant Tenant's Percentage share of the amount by which
such estimations proceed such actual amount, together with interest thereon at
the rate of 9% per annum, such interest to be payable for the period beginning
on the date Tenant shall have paid Tenant's Percentage Share of Landlord's Taxes
based upon such estimation, and ending on the day preceding Landlord's repayment
to Tenant of such excess.
4.3.2 LANDLORD'S TAXES - DEFINITION. "Landlord's Taxes" shall mean all
taxes, assessments, betterments, excises, user fees and all other governmental
charges and fees of any kind or nature, or impositions or agreed payments in
lieu thereof (including any so called "linkage payments") and all penalties and
interest thereon (if due to Tenant's failure to make timely payments on account
of Landlord's taxes), assessed or imposed against the Premises or the property
of which the premises are a part, or upon Landlord by virtue of its ownership
thereof ("Landlord's Taxes"), other than a federal or state income tax of
general application. If during the Term the present system of ad valorem
taxation of property shall be changed so that, in lieu of or in addition to the
hole or any part of such ad valorem tax there shall be assessed, levied or
imposed on such property or Premises or
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on Landlord any kind or nature of federal, state, county, municipal or other
governmental capital levy, income, sales, franchise, excise or similar tax,
assessment, levy, charge or fee (as distinct from the federal and state income
tax in effect on the Commencement Date) measured by or based in whole or in part
upon Building valuation, mortgage valuation, rents or any other incidents,
benefits or Measures of real property or real property operations, then any and
all of such taxes, assessments, levies, charges and fees shall be included
within the term Landlord's Taxes.
Landlord's Taxes include reasonable expenses, including fees of attorneys,
appraisers and other consultants, incurred in connection with any efforts to
obtain abatements or reductions or to assure maintenance of Landlord's Taxes for
any tax fiscal year wholly or partially included in the Term, whether or not
successful and whether or not such efforts involve filing of actual abatement
applications or initiation of formal proceedings. If Landlord obtains a refund
(including any interest) of Landlord's Taxes previously paid by Tenant, Landlord
promptly shall remit to Tenant Tenant's Percentage Share of any such refund,
after first deducting from such refund Landlord's reasonable, actual expenses in
obtaining the same, including fees of attorneys, appraisers and other
consultants incurred in connection with such efforts to the extent such expenses
have not previously been included in Landlord's Taxes paid by Tenant.
4.4.1 ADDITIONAL RENT - OPERATING EXPENSES. Tenant covenants and agrees to
pay to Landlord, as additional rent, Tenant's Percentage Share (as set forth in
Section 1.1) of Landlord's Operating Expenses (hereafter defined) for each of
Landlord's fiscal years, or ratable portion thereof, included in the Lease Term
in monthly installments on the first day of each month in advance, based on
amounts reasonably estimated from time to time by Landlord, and with a final
payment adjustment between the Parties within 14 days after Landlord provides
Tenant a statement of Landlord's Operating Expenses for Landlord's most recent
fiscal year. When the actual amount of Landlord's Operating Expenses are
determined from time to time, the parties agree to promptly make adjustments for
any overpayments or underpayments made by Tenant. Any overpayment will be
promptly reimbursed to Tenant and any underpayments will promptly be paid by
Tenant upon receipt of a statement setting forth with reasonable specificity the
amount of such underpayment. Landlord agrees that, if any such estimations are
more than 25% higher than the actual amount of Landlord's Operating Expenses
payable by Landlord without taking into account abatements or other efforts by
Landlord to reduce real estate tax assessments, then Landlord will promptly
remit to Tenant Tenant's Percentage Share of the amount by which such
estimations proceed such actual amount, together with interest thereon at the
rate of 9% per annum, such interest to be payable for the period beginning on
the date Tenant shall have paid Tenant's Percentage Share of Landlord's
Operating Expenses based upon such estimation, and ending on the day preceding
Landlord's repayment to Tenant of such excess.
4.4.2 LANDLORD'S OPERATING EXPENSES - DEFINITION. "Landlord's Operating
Expenses" means all costs actually paid or incurred in servicing, operating,
managing, maintaining, and repairing the Building and the land, facilities and
appurtenances thereto,
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including without limitation the costs of the following: (i) supplies, materials
and total wage and labor costs and all costs and expenses of independent
contractors paid or incurred on account of all persons engaged in the operation,
maintenance, security, cleaning and repair of the Building and the land,
facilities and appurtenances therefor including social security unemployment
compensation, pension vacation, sick pay and other so-called "fringe benefits";
(ii) services furnished to tenants of the Building, including Tenant, by
Landlord; (iii) utilities consumed and expenses incurred in the operation of the
Building and the land, facilities and appurtenances thereto; (iv) casualty,
liability, workmen's compensation and all other insurance expenses (and the
amount of any deductible in the event of an insured loss), all insurance to be
in such amounts and insuring against such risks as Landlord may, in its sole
discretion from time to time decide; (v) snow removal, planting, landscaping,
grounds and parking ration, maintenance and repair expenses; (vi) management
fees to third parties, including Landlord's Managing Agent, which do not exceed
those customarily paid with respect to buildings in the area which are similar
to the Building, and fees for required licenses or permits; (vii) rental or
reasonable depreciation of equipment used in the operation of the Building and
the land, facilities and appurtenances thereto, and personal property taxes
assessed upon such equipment; and (viii) expenses of periodic testing to assure
that the premises and surrounding land are free of hazardous materials, agents
or substances, and to assure compliance with codes, regulations and laws. In
addition, if Landlord from time to time (i) repairs or replaces any existing
improvements or equipment or (ii) installs any new improvements or equipment to
the Building in order to retain the existing functions of the Building, comply
with laws or conserve energy, (including without limitation energy conservation
improvements or other improvements), then the cost of such items amortized over
their reasonable life, together with an actual or imputed interest rate (at the
level then being charged by institutional first mortgagees for new permanent
first mortgage loans on buildings in the area which are similar to the Building)
shall be included in Landlord's Operating Expenses. Costs and expenses referred
to in this Section shall be ascertained in accordance with generally accepted
accounting principles, including allowance for appropriate reserves, and
allocated to appropriate fiscal periods on the accrual method of accounting
Landlord's Operating Expenses shall not include payments of principal, interest
or other charges on mortgages or payments of any rent by Landlord on account of
any ground lease of the land on which the Building is situated, any lease of the
Building, or any real property facilities and appurtenances thereto; costs of
work or services for particular tenants separately reimbursable to Landlord by
such tenants; advertising, marketing costs and leasing commissions; costs of
so-called leasehold improvements to rentable areas in the Building, leasehold
improvements made for new or prospective tenants; the cost of any work or
services performed for any tenant(s) in the Building (including Tenant), whether
at the expense of Landlord or such tenant(s), to the extent that such work or
service is in excess of work or services Landlord is required to furnish to
Tenant under the Lease at Landlord's expense; legal and other professional
expenses incurred in connection with the enforcement of leases in the Building;
and compensation to executives of Landlord above the level of building manager.
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4.5 ALLOCATION OF CERTAIN OPERATING EXPENSES. If at any time during the
Term, Landlord provides services only with respect to portions of the Building
which include the Premises or incurs other Operating Expenses allocable to
portions of the Building which include the Premises alone, then such Operating
Expenses shall be charged entirely to those tenants, including Tenant, of such
portions, notwithstanding the provisions hereof referring to Tenant's Percentage
Share. If, during any period for which Landlord's Operating Expenses are being
computed, less than all of the Building is occupied by tenants, or if Landlord
is not supplying all tenants with the services being supplied hereunder,
Operating Expenses shall be reasonably estimated and extrapolated by Landlord to
determine the Operating Expenses that would have been incurred if the Building
were fully occupied for such year and such services were being supplied to all
tenants, and such estimated and extrapolated amount shall be deemed to be
Landlord's Operating Expenses for such period.
ARTICLE V
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ADDITIONAL COVENANTS
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5.1 TENANT'S COVENANTS. Tenant covenants that at all times during the Term
and such further time as Tenant (or persons claiming by, through or under it)
occupies the Premises or any part thereof, it shall perform and observe the
following conditions, all at its sole cost and expense:
5.1.1 UTILITIES AND SERVICES. Tenant shall provide and pay all charges and
deposits for gas, water, sewer, electricity, and other energy, utilities and
services used or consumed on the Premises during the Term which now or hereafter
separately serve the Premises, or are not expressly to be provided by Landlord
elsewhere hereunder. It is understood and agreed that except as may be expressly
provided hereunder, Landlord shall be under no obligation whatsoever to furnish
any such services to the Premises, and shall not be liable for (nor suffer any
reduction in any rent on account of) any interruption or failure in the supply
of the same, unless the same shall have arisen from the acts or omissions of
Landlord, its partners, agents, employees, independent contractors, invitees or
other persons acting under Landlord.
5.1.2 MAINTENANCE. Tenant shall clean, maintain, repair and secure the
Premises,. all improvements and appurtenances ;thereto, all access areas
thereof, and all utilities, facilities, installations and equipment used in
connection therewith, and shall pay all costs and expenses of so doing, keeping
the Premises in good order, repair and condition, reasonable wear and tear, and
damage by casualty and taking (to the extent Provided in Article VI only)
excepted. Without limiting the generality of the foregoing, Tenant shall keep
all interior walls, floor surfaces and coverings, glass, windows, doors,
partitions, all fixtures and equipment, utilities, pipes and drains and other
installations used in connection with the Premises and located inside the
demising walls of the Premises in such good order, repair and condition, shall
provide all cleaning, lighting and floor covering to the Premises(except with
respect to the Landlord's Work), and shall remove
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all refuse from and provide its own janitorial services for the Premises.
Notwithstanding the foregoing, Tenant shall not be obligated to, and Landlord,
at its sole cost and expense promptly shall, repair any part of the Premises if
such repair arises out of the acts or omissions of Landlord, its partners,
agents, employees, independent contractors, invitees or other persons acting
under Landlord.
Attached as Appendix B and a part hereof are particular requirements of
certain aspects of maintenance and operation of the premises which Tenant shall
perform and conform to in addition to, and not in limitation of, the foregoing.
5.1.3 USE AND COMPLIANCE WITH LAW. Tenant shall use the Premises only for
the Permitted Uses set forth in Section 1.1, and then only as permitted under
laws, regulations and orders applicable from time to time, including without
limitation municipal by-laws, land use and environmental laws and regulations,
and shall procure all approvals, licenses and permits necessary therefor, in
each case giving Landlord true and complete copies of the same and all
applications therefor except, however, Tenant shall not be obligated to obtain
any certificate of occupancy for the Premises or the Building. Tenant shall
promptly comply with all present and future laws applicable to Tenant's manner
of or particular use of the Premises or Tenant's signs thereon, foreseen or
unforeseen, and whether or the same necessitate structural or other
extraordinary changes or improvements to the Premises or interfere with its use
and enjoyment of the premises, and shall keep the Premises equipped with
adequate safety appliances and comply with all requirements of insurance
inspection or rating bureaus having jurisdiction in light of the use Tenant is
making of the Premise. If Tenant's manner of or particular use of the Premises
results in any increase in the premium for any insurance carried by Landlord,
then upon Landlord's notice to Tenant of such increase Tenant shall pay the same
to Landlord upon demand as additional rent. Tenant shall, in any event,
indemnify and save Landlord harmless from all loss, claim, damage, cost or
expense (including reasonable attorneys' fees of counsel of Landlord's choice
against whom Tenant makes no reasonable objection) on account of Tenant's
failure so to comply with the obligations of this Section (paying the same to
Landlord upon demand as additional rent). Tenant shall bear the sole risk of all
present or future laws affecting the premises or appurtenances thereto relating
solely to Tenant's manner of or particular use of the Premises and Landlord
shall not be liable for (nor suffer any reduction in any rent on account of) any
interruption, impairment or prohibition affecting the premises or Tenant's use
thereof resulting from the enforcement of laws. Tenant shall conform to all
reasonable rules and regulations from time to time promulgated by Landlord for
the operation, care and use of the common areas of the Building and appurtenant
improvements and areas in which Tenant is granted rights of use by the terms of
this Lease. To the extent Landlord enforces said rules and regulations, it will
do so without discrimination against all tenants in the Building.
5.1.4 LIENS AND ENCUMBRANCES. Tenant shall not create or suffer,
shall -- property, the Premises and Tenant's keep Landlord's pr leasehold free
of, and shall promptly remove and discharge, any lien, notice of contract,
charge, security interest, mortgage or other encumbrance which arises for any
reason, voluntarily or involuntarily,
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as a result of any acts or omission by Tenant or persons claiming by, through or
under Tenant, or any of their agents, employees or independent contractors,
including without limitation liens which arise by reason of labor or materials
furnished or claimed to have been furnished to Tenant or for the Premises.
5.1.5 INDEMNITY. Tenant shall assume exclusive control of all areas of the
Premises, including all improvements, utilities, facilities and installations
now or hereafter thereon, and all liabilities, including without limitation tort
liabilities, incident thereto; and Tenant shall indemnify, save harmless and
defend Landlord, its partners, mortgagees, agents, employees, independent
contractors, invitees and other persons acting under Landlord (collectively
"Indemnitees") from all liability, claim or independent contractors, cost
(including reasonable attorneys' fees of counsel of an Indemnitee's choice
against whom Tenant makes no reasonable objection) arising in whole or in part
out of any injury, loss, theft or damage (except if such is due to the
negligence of Landlord or its employees) to any person or property while on or
about the Premises, or out of any condition within the Premises, or arising out
of any breach of any Lease covenant, or from any act or omission of Tenant or
persons claiming by, through or under Tenant, or any of their agents, employees,
independent contractors, or invitees (paying the to Landlord upon demand as
additional rent). The provisions of this Section shall survive the Term of this
Lease.
5.1.6 LANDLORD'S RIGHT TO ENTER. Landlord and its agents or employees may
upon" reasonable notice enter the Premises during business hours (and in case of
emergency at any time] for the purpose of performing repairs or replacements, or
exercising any of the rights reserved to Landlord herein, or securing or
protecting Landlord's property or the Premises, and similarly upon reasonable
notice may show the Premises to prospective purchasers and lenders, and during
the last nine months of the Term to prospective tenants, and may keep affixed in
suitable places notices for letting and selling. Except in case of emergency,
Landlord shall be subject in entering the Premises to reasonable Security
conditions, if any, set forth by Tenant in writing to Landlord.
5.1.7 PERSONAL PROPERTY AT TENANT'S RISK. All of the furnishings, fixtures,
equipment, effects and kind, nature and description which, during the occupancy
of the premises by Tenant (or persons claiming by, through or under Tenant) may
be on the Premises or elsewhere on Landlord's property, shall be at the sole
risk and hazard of Tenant Except to the extent such damage is caused by Landlord
or its employees, Landlord shall not be liable for, and Tenant expressly waives
all claims against Landlord, its agents and employees, for damage to person or
property sustained by Tenant, or any person claiming by, through or under
Tenant, resulting from any accident or occurrence in or on the Premises or the
property of which the Premises are a Part, including but not limited to, claims
for damage resulting from water, wind, ice, steam, explosion or otherwise, or
from the rising or water or the leakage or bursting of water pipes, steam pipes,
gas pipes, the sprinkler system or other pipes, or from theft, vandalism, or
from any other cause whatsoever, and except only to the extent provided above in
this Section, no part of said loss or damage shall be charged to or borne by
Landlord or Landlord's agents
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or employees, unless the same is attributable to the acts or omissions of
Landlord, Landlord's partner: agents, employees independent contractors,
investors or other persons acting under Landlord.
5.1.8 OVERLOADING, NUISANCE, ETC. Tenant shall not, either with or
without negligence, injure, overload, deface, damage or otherwise harm
Landlord's property, the Premises (except for decorations and alterations
permitted in this Lease) or any part of component thereof; commit any nuisance;
permit the emission of any hazardous agents or substances; allow the release or
other escape of any biologically, radioactive or chemically active or other
hazardous substances or materials (collectively "hazardous substances") so as to
impregnate, impair or in manner adversely affect, even temporarily, any element
or part of Landlord's property or the Premises, or allow the storage or use of
such substances or materials in any manner not sanctioned by law or by the
highest standards prevailing in the industry for the storage and use of such
substances or materials; nor shall Tenant bring onto the Premises any such
materials or substances except to use in the ordinary course of Tenant's
business, and then only after written notice is given to Landlord of the
identity of such substances or materials (the identity of all such substances
and materials, if any, so used on the date hereof being set forth on Appendix
C); permit the occurrence of objectionable noise or odors; or make, allow or
suffer any waste whatsoever to Landlord's property or the Premises. Landlord may
inspect the Premises from time to time, and Tenant will cooperate with such
inspections. Without limitation, hazardous substances shall include such
substances described in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended 42 U.S.C. 9601 et seq. and the regulations
adopted thereunder, and hazardous materials shall include such materials
described in the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
6901 et seq.; in the Massachusetts Hazardous Waste Management Act, as amended,
M.G.L. Chapter 21, and the Massachusetts Oil and Hazardous Material Release
Prevention Act, as amended M.G.L. Chapter 21E, and the regulations adopted under
these acts. In addition, Tenant shall execute affidavits, representations and
the like from time to time at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence or absence of hazardous substances
on the Premises or land pertaining thereof. In all events, Tenant shall
indemnify Landlord and mortgagees in the manner elsewhere provided from any
release of hazardous substances on the Premises occurring while Tenant is in
possession. (At the request of Landlord, Tenant directly with such mortgagees.)
Landlord represents and warrants that, as of the date hereof, to Landlord's
knowledge no hazardous substances have been released on the Premises.
5.1.9 YIELD UP. At the expiration or earlier termination of this Lease,
Tenant (and all persons claiming by, through or under it) shall, without
necessity of any notice, surrender the Premises (including all Tenant Work and
all replacements thereof, except such additions, alterations and other Tenant
Work as Landlord may direct to be removed, which shall be removed by Tenant and
the Premises restored to their pre-existing condition) and all keys to the
Premises, remove all of its trade fixtures and personal property not bolted or
otherwise attached to the Premises (and such trade fixtures and other property
bolted or attached to the Premises as Landlord may direct), and all Tenant
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signs wherever located, in each case repairing damage to the Premises which
results in the course of such removal and restoring the Premises to the same
condition on the Lease Commencement Date or are put in compliance with the terms
of this Lease thereafter (including the filling of all floor holes, the removal
of all disconnected wiring back to junction boxes and the replacement of all
damaged ceiling tiles). Tenant shall yield up the Premises broom-clean and in
good order, repair and condition, reasonable wear and tear and damage by
casualty and taking (to the extent provided in Article VI only) excepted. Any
property not so removed within thirty (30) days after the expiration or
termination of the Lease shall be deemed abandoned and may be removed and
disposed of by Landlord in such manner as Landlord shall determine, and Tenant
shall pay to Landlord the entire reasonable cost and expense incurred by it in
effecting such removal and disposition and in making any reasonable incidental
repairs to the Premises.
5.1.10 HOLDING OVER. If Tenant (or anyone claiming by, through or under
Tenant) shall remain in possession of the premises or any part thereof after the
expiration or earlier termination of this Lease with respect to any portion] of
the Premises without any agreement in writing executed with Landlord, the person
remaining in possession shall be deemed a tenant at sufferance, Tenant shall
thereafter pay Annual Fixed Rent at double the amount payable for the twelve
month period immediately preceding such expiration or termination and with all
additional rent payable and covenants of Tenant in force as otherwise herein
provided, and Tenant shall be liable to Landlord for all direct damages. After
acceptance of the full amount of such rent by Landlord the person remaining in
possession shall be deemed a tenant from month-to-month at such rent and
otherwise subject to and having agreed to perform all of the provisions of this
Lease, but, Landlord will not be deemed to have relinquished any claims for
direct damages.
5.1.11 ASSIGNMENT, SUBLETTING. Tenant shall not assign this Lease, or
sublet or license the Premises or any portion thereof, or advertise the premises
for assignment or subletting or permit the occupancy of all or any portion of
the Premises by anybody other than Tenant (all of the foregoing actions are
sometimes collectively referred to as a "transfer") without obtaining, on each
occasion, the prior consent of Landlord which consent shall not be unreasonably
withheld or delayed. A transfer shall include, without limitation, any transfer
of Tenant's interest in this Lease by operation of law, merger or consolidation
of Tenant into any other firm or corporation or any liquidation of Tenant or a
substantial part of Tenant's assets resulting in Tenant's having less than 80%
of the net worth (as reflected in its most recent fiscal year end financial
statements) that it has on the date hereof. Tenant shall not offer to make or
enter into negotiations with respect to a transfer to (i) any tenant (or any
affiliate of such tenant) in the Building, in Ledgemont Research Park or in any
building within a 10 mile radius in which, to Tenant's actual knowledge,
principals of The Xxxx Companies hold ownership interests; (ii) any party with
whom, to Tenant's actual knowledge, Landlord is then negotiating with respect to
space in the Building or Ledgemont Research Park; (iii) any party which would be
of such type, character or condition as to be inappropriate as a tenant for a
first class office building. Notwithstanding the foregoing, Landlord hereby
agrees to the assignment of this Lease, or the subletting or licensing of the
Premises or any portion thereof to any entity which is a
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parent, subsidiary or sister affiliate of Tenant or Tenant's Corporate Technical
Group in Greater Boston will not be unreasonably withheld so long as the
acquiring entity, after the acquisition, has a net worth of at least 80% of the
net worth (as reflected in its most recent fiscal year end financial statements)
that Tenant has on the date hereof. If Tenant's net worth (as reflected in its
most recent fiscal year end financial statements) falls below 80% of its net
worth on the date hereof, Landlord shall have the right to require Tenant to
post a bank letter of credit (in form reasonably satisfactory to Landlord), as a
security deposit for Tenant's obligations hereunder, in the amount of the Annual
Fixed Rent then due and payable. If Tenant proposes a transfer of this Lease or
a sub-letting of all or substantially all of the Premises, Landlord may elect by
written notice to Tenant to terminate this Lease contingent upon the proposed
transferee becoming directly obligated to Landlord upon such proposed terms; and
upon the proposed assignee or sub-tenant so obligating itself, Tenant shall
thereafter be free of further obligation hereunder (except that a proposal to so
transfer or sublet to any of the entities in the foregoing sentence shall not
give rise to Landlord's right to terminate this Lease). If Tenant does transfer
with Landlord's consent, and if the consideration, rent, or other charges
payable to Tenant under such transfer exceed the rent and other charges to be
paid hereunder (pro-rated based on floor area in the case of a sub-letting,
license or other occupancy of less than the entire floor area of the Premises in
question), then Tenant shall pay to Landlord, as additional rent, the amount of
such excess when and as received. Without limiting the generality of the
foregoing, any lump-sum payment or series of payments due (including for the
purchase of so-called leasehold improvements) on account of any transfer shall
be deemed to be in excess of rent and other charges in its or their entirety.
For the purposes of this Paragraph, "excess" shall mean the amount by which (1)
the Annual Fixed Rent, additional and all other charges and consideration of any
kind payable with respect to such assignment or sublet (the "Excess") exceeds
(2) the Annual Fixed Rent, additional rent and all other charges payable by
Tenant under this Lease applicable (on a prorated basis) to the Premises or
portion thereof being sublet, plus, with respect to each such assignment or
sublet, Tenant's actual costs incurred in entering into such sublease or in
granting such assignment, for brokerage commissions, professional fees, costs
for redecorating, alterations and renovations and any reasonable rent concession
given with respect to a sublease. Excess shall not include any consideration
paid to Tenant which is not reasonably attributable to such assignment or
sublease, as distinct from consideration which may have been given for other
identifiable assets of Tenant in connection with an assignment or sublease which
is part of a larger transaction involving the disposition or reorganization of
one or more of Tenant's businesses, groups or divisions; nor shall it include
any payment to Tenant for any items of personality included in such assignment
or sublet.
Landlord's Managing Agent, Xxxx and Company, Inc. (or such other manager of
the Building appointed from time to time by Landlord) shall be Tenant's
exclusive broker for a period of six months with respect to any proposed
transfer so long as such Agent uses its good faith best efforts to market in
accordance with Tenant's directions; and after such period Tenant may appoint a
co-exclusive broker to serve along with Landlord's Managing Agent. Such Agent
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shall be paid a brokerage fee for any transfer in accordance with such Agent's
commission schedule then in effect so long as such schedule and other terms are
competitive with similar schedules of major Greater Boston brokerage firms.
Notwithstanding any transfer of this Lease, Tenant's (and any guarantor's)
liability to Landlord shall in all events remain direct and primary. In the case
of any requested consent to a transfer, Tenant shall deliver to Landlord at the
time thereof (i) a true and complete copy of the proposed instrument containing
all of the terms and conditions of such transfer, and (ii) a written agreement
of the assignee, sub-tenant or licensee, in recordable form reasonably approved
by Landlord, agreeing with Landlord to perform and observe all of the terms,
covenants and conditions of this Lease. Tenant shall pay to Landlord, as
additional rent, Landlord's reasonable attorneys' fees in reviewing any transfer
contemplated by this Section, which fees shall not exceed $1,000, whether or not
Landlord consents to the same. Any transferee of all or a substantial part of
Tenant's interest in the Premises shall be deemed to have agreed directly with
Landlord to be jointly and severally liable with Tenant for the performance of
all of Tenant's covenants under this Lease; and such assignee shall upon request
execute and deliver such instruments as Landlord reasonably requests in
confirmation thereof (and agrees that its failure to do so shall be subject to
the default provisions). Landlord may collect rent and other charges from such
transferee (and upon notice such transferee shall pay directly to Landlord) and
apply the net amount collected to the rent and other charges herein reserved,
but no transfer shall be deemed a waiver of the provisions of this Section, or
the acceptance of the transferee as a tenant, or a release of Tenant or any
guarantor from direct and primary liability for the performance of all of the
covenants of this Lease. The consent by Landlord to any transfer shall not
relieve Tenant from the obligation of modification of obtaining the express
consent of Landlord to any amendment or other modification of such transfer or a
further assignment, subletting, license or occupancy; nor shall Landlord's
consent alter in any manner whatsoever the terms of this Lease, to which any
transfer at all times shall be subject and subordinate.
5.2 BUILDING SERVICES. Landlord shall furnish the services and utilities
hereafter described. Tenant may obtain additional services and utilities from
time to time if the same are obtainable by Landlord upon reasonable advance
request, or Landlord may furnish the same without request if Landlord determines
that reasonably Tenant's use or occupancy of the Premises reasonably
necessitates the same; and in either case Tenant shall pay-for the same at
reasonable rates from time to time established by Landlord upon demand as
additional rent. Landlord's obligation shall be subject to the other provisions
of this Lease, reasonable wear and tear and damage caused by or resulting from
the acts or omissions of Tenant or its transferees (or their agents, employees,
invitees and independent contractors), fire, casualty or eminent domain takings.
5.2.1 LANDLORD'S MAINTENANCE. Landlord shall reasonably maintain the
foundations, exterior walls, masonry, structural floors and roof, the heating,
ventilating and air conditioning systems, and elevators and common areas of the
Building insofar as such elements affect the Premises, and the exterior
walkways, sidewalks, landscaping driveways and parking areas referred to in
Section 2.1 in a manner which is consistent
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with maintenance standards for first class buildings in Greater Boston; but in
no event shall Landlord be obligated (except as provided in s. 6.3) to repair
glass, windows or doors of the Premises, whether interior or exterior (which
responsibility shall be Tenant's).
5.2.2 ELECTRICITY. Until separately metering the Premises, Landlord shall
furnish electricity for ordinary laboratory and office purposes through
transmission facilities heretofore installed by Landlord in the Building, by
means of alternating electric current to be used by Tenant in connection with
lighting fixtures and electrical receptacles presently installed in the Premises
and/or to be installed as part of Landlord's Work. Tenant shall use such
electric current for lighting and, insofar as Landlord's facilities are not
burdened thereby and applicable laws permit, for operation of such equipment and
appliances as are customarily used in connection with an office and laboratory.
Tenant shall pay the cost of such electricity, as reasonably estimated by
Landlord from time to time, as the actual cost to Landlord, within 10 days after
receipt of Landlord's statement, which statement shall not be submitted more
frequently than monthly, and shall pay the cost of separately metering the
Premises if Landlord decides to separately meter the premises. If Tenant from
time to time at reasonable intervals disagrees with Landlord's estimate of
Tenant's electrical consumption, such consumption shall be determined by a
reputable independent electrical engineer or consultant, selected by Landlord
and approved by Tenant, which approval shall not be unreasonably withheld or
delayed. Such engineer or consultant shall promptly make a survey of the
electrical wiring and power load in the Premises to determine Tenant's projected
average annual electric current consumption therein. The cost of said survey
shall be borne by Tenant unless the findings such consultant are that Landlord
has over-billed Tenant by more than 20% of actual consumption; in which case
Landlord will pay the cost of such survey. Said survey shall be conclusive upon
the parties. If Landlord decides to separately meter the Premises, Landlord
shall give Tenant reasonable prior written notice that Landlord intends to do
so. Such separate metering shall mean that Tenant shall obtain electric current
directly from the utility company furnishing electric current to the Building.
Such current shall be furnished to Tenant by means of the then existing Building
system feeders, risers and wiring. All meters and additional panel boards,
risers, feeders, wiring and other conductors and equipment which may be required
to obtain electric current directly from such public utility company shall be
installed and maintained by Tenant. Landlord shall continue providing electric
current to Tenant until such separate meter is installed and operable, provided
Tenant is acting diligently to obtain the same.
5.2.3 OFFICE IDENTIFICATION. Subject to Section 5.1.3, install at Tenant's
expenses and if Landlord shall provide and install, requested, letters or
numerals on entry doors to the Premises to identify Tenant's official name and
Building address; all such letters and numerals to be in the Building standard
graphics. Landlord shall provide Tenant, at no additional cost to Tenant, one
directory listings on the directory for tenants in the lobby for the Building.
Landlord will also erect and maintain a directional sign noting Tenant's
location in Ledgemont Research Center.
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5.2.4 GROUNDS MAINTENANCE. Landlord shall reasonably maintain the grounds
adjacent to the Building and the walkways, driveways and parking areas referred
to in Section 2.1.
5.2.5 CHEMICAL WASTE DISPOSAL SYSTEMS. Landlord shall use reasonable
efforts to maintain the existing chemical waste disposal systems, subject always
to Section 5.1; and if any law, regulation or order (including without
limitation any law respecting the disposal or discharge of hazardous waste)
shall ever require such service to be modified, then Landlord shall promptly
modify such service, or it may continue or modify such service upon such
conditions as it deems appropriate under the circumstances. If, as a condition
of continuing such service, modifications to such systems are required or
appropriate, or if inspections or reporting or other maintenance of a kind
different from that now performed shall ever be required or appropriate, then
Landlord shall promptly in its sole discretion carry out the same, and all of
the costs and expenses of so doing shall be charged to and borne by Tenant alone
in the manner provided under Section 4.4.1 and 4.4.2; except that if other
tenants of the Building are then using the system affected such costs shall be
apportioned among all such tenants based on the number of laboratory sinks
discharging into the system in question, or on such other equitable basis as
Landlord reasonably may determine.
5.3 INTERRUPTIONS. Landlord shall not be liable to Tenant in damages or by
reduction of rent or otherwise by reason of inconvenience or annoyance or for
loss of business arising from Landlord or its agents or employees entering the
Premises for any of the purposes authorized in this Lease or for repairing,
altering or improving the Building in a manner reasonable in light of the
circumstances; nor shall Tenant be entitled to cure any failure by Landlord to
make repairs (and recover its reasonable costs thereof) unless Tenant has given
notice thereof to Landlord and Landlord has failed to commence performance
within thirty (30) days after receipt of such notice, or fails thereafter to
prosecute any cure with reasonable diligence. In case Landlord is prevented or
delayed from making any repairs or replacements or furnishing any Services or
performing any other covenant or duty to be performed on Landlord's part by
reason of cause reasonably beyond Landlord's control, Landlord shall not liable
to Tenant therefor, nor shall the same give rise to a claim Tenant's favor that
such failure constitutes actual or constructive, total or partial, eviction from
the Premises. Landlord reserves the right to stop, any service or utility
system, when reasonably necessary by reason of accident or emergency, or until
necessary repairs have been completed; provided, however, that in each instance
of stoppage, Landlord shall give Tenant such notice as is reasonably practicable
under the circumstances of the expected duration of such stoppage and will
exercise reasonable diligence to eliminate the cause thereof. Except in case of
emergency repairs Landlord will give Tenant reasonable advance notice of any
contemplated stoppage and will use reasonable efforts to avoid unnecessary
inconvenience to Tenant by reason thereof.
ARTICLE VI
----------
INSURANCE; CASUALTY; TAKING
---------------------------
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6.1.1 PUBLIC LIABILITY INSURANCE. Tenant shall obtain and maintain
throughout the Term comprehensive public liability insurance against claims and
demands for any injury to persons or property which have occurred on or in
connection with the Premises, naming Landlord and, if requested, Landlord's
mortgagees and other persons designated by Landlord as additional insureds, in
an amount which shall, at the beginning of the Term, be at least equal to the
amounts forth in Section 1.1. Such insurance shall provide that it will not be
subject to cancellation, termination or change except after at least 30 days
prior written notice to Landlord (and Landlord's mortgagees and such additional
insureds). The policy or policies, or a duly executed certificate or
certificates for the same, shall be deposited with Landlord at the beginning of
the Term, and renewals of such policies shall be so deposited not less than 30
days prior to the expiration of coverage.
6.1.2 INSURANCE BY LANDLORD. In the event Tenant breaches any covenant or
fails to observe any condition set forth above in this Article VI, then without
limiting any other right or remedy, and notwithstanding any other provision
herein concerning notice and cure of defaults, Landlord may immediately and
without notice to Tenant obtain such insurance, and Tenant shall pay the cost
thereof and Landlord's expenses related thereto upon demand as additional rent.
6.2 WAIVERS OF SUBROGATION. Any insurance carried by either Landlord or
Tenant with respect to the Premises or property therein or occurrences thereon
shall include a clause or endorsement denying to the insurer rights of
subrogation against the other party to the extent rights have been waived by the
insured hereunder prior to occurrence of injury or loss. Without limiting any
other provisions of this Lease, each party hereby waives any rights of recovery
against the other for injury or loss due to hazards covered by such insurance,
to the extent only of the indemnification received thereunder.
6.3 DAMAGE OR DESTRUCTION OF PREMISES. If through no act or neglect of
Tenant or persons acting under Tenant the Premises or any part thereof shall be
damaged by fire or other insured casualty then, subject to the following
provisions of this Section, Landlord shall proceed with diligence, subject to
then applicable statutes, building codes, zoning ordinances and other laws and
regulations of any governmental authority, and at the expense of Landlord (but
only to the extent of insurance proceeds received and made available to Landlord
by any mortgagee) to repair or cause to be repaired such damage, excluding any
items installed or paid for by Tenant which Tenant is permitted to remove upon
expiration, (which items shall be Tenant's responsibility to repair.) However,
if any damage occurs through the act or neglect of persons acting under Tenant
or if any act or neglect of Tenant or such person prevents Landlord or its
mortgagees from collecting all insurance proceeds, then the cost of repairing
the casualty damage shall be paid by Tenant except to the extent any insurance
proceeds are actually received by Landlord or mortgagees (they being under no
obligation to litigate their entitlement), and there Shall be no abatement of
rent. If (i) all or any substantial part (meaning more than 25% of insurable
value) of the Premises are materially damaged by fire or other casualty (whether
or nor
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insured) or (ii) the Building (whether or nor including any portion of the
Premises) is so damaged by fire or other casualty (whether or not insured) that
substantial alteration, reconstruction or demolition of the Building shall in
Landlord's sole discretion be appropriate, or (iii) if any casualty occurs to
the Premises during the last year of the Term and its repair will reasonably
cost more than $100,000, then in any such case, this Lease and the Term hereof
may be terminated at the election of Landlord by a notice in writing of its
election so to terminate given to Tenant within six (6) months following
adjustment of such casualty loss with the insurer, the effective termination
date being not less than thirty (30) nor more than sixty (60) days thereafter
which Landlord will use reasonable efforts to obtain.
Tenant shall be entitled to a just abatement of Annual Fixed Rent (but nor
for additional rent on account of Landlord's Taxes and Operating Expenses)
during the period of impaired use of the Premises, in no event, however,
exceeding 12 months, but only if, as and to the extent that full payment is made
to Landlord on account thereof under any rent continuation insurance. If any
mortgagee refuses without fault by Tenant to permit insurance proceeds to be
applied to replacement of the Premises, or if neither Landlord nor such
mortgagee has commenced such replacement within five (5) months following such
casualty loss with the insurer, then Tenant may, until any such replacement
commences, terminate this Lease by giving at least thirty (30) days prior
written notice thereof to Landlord. Except as provided in this paragraph,
Tenant's obligation to pay all rent and to perform and observe all other
covenants and conditions of this Lease shall not observe a and the Term of this
Lease be affected by any damage or casualty, and rent hereunder shall continue
nonetheless.
6.4 EMINENT DOMAIN. In the event that all or any substantial part of the
Premises or the Building (meaning either case more than % of floor area of
either the Premises or the Building, respectively) are taken, or if the sole
means of access to the Building is taken, or if more than 25% of the parking
spaces existing on the date hereof are taken and the number of spaces below 25%
are not replaced reasonably promptly, are taken (other than for temporary use,
hereafter described) by public authority under power of eminent domain (or by
conveyance in lieu thereof), then by notice given within three months following
the recording of such taking (or conveyance) in the appropriate registry of
deeds, this Lease may be terminated at either party's election 30 days after
such notice, and rent shall be apportioned as of the date of termination (except
that if such taking so reduces only the Building and not also the Premises, then
Tenant will have no termination right unless such taking also is of the sole
means of access to the Building). If this Lease is not terminated as aforesaid,
Landlord shall within a reasonable time thereafter, diligently restore what may
remain of the Premises (excluding any items installed or paid for by Tenant
which Tenant is permitted or may be required to remove upon expiration) to a
tenantable condition. In the event some portion of rentable floor area is taken
(other than for temporary use) and this Lease is not terminated, Annual Fixed
Rent shall be proportionally abated for the remainder of the Term. In the event
of any taking of the Premises or any part thereof, or any taking of access to
the Building or of more than 25% of the parking spaces existing on the date
hereof and the number of spaces below 25% are
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not replaced reasonably promptly, for temporary use, (i) this Lease shall be and
remain unaffected thereby and rent shall not xxxxx, and (ii) Tenant shall be
entitled to receive for itself such portion or portions of any award made for
such use with respect to the period of the taking which is within the Term. If
such temporary taking shall continue for more than 60 days, then Tenant shall
have the same right to terminate this Lease and be reimbursed as if such taking
had been a permanent taking.
Any specific damages which are expressly awarded to Tenant on account of
its relocation expenses, and specifically so designated, shall belong to Tenant.
Except as provided in the preceding sentences of this paragraph, Landlord
reserves to itself, and Tenant releases and assigns to Landlord, all rights to
damages accruing on account of any taking or by reason of any act of any public
authority for which damages are payable. Tenant agrees to execute such further
instruments of assignment as may be reasonably requested by Landlord, and to
turn over to Landlord any damages that may be recovered in any proceeding or
otherwise.
ARTICLE VII
-----------
DEFAULT
-------
7.1 EVENTS OF DEFAULT. (a) If Tenant defaults in paying Annual Fixed Rent
or any additional rent or other charge hereunder and such default continues for
ten (10) days after notice, or defaults in performing any other covenant,
agreement or condition hereunder within thirty (30) days after notice (provided,
however, that such 30 day period shall be reasonably extended if the matters
complained of can be corrected, but the cure cannot be completed within such
period and Tenant begins promptly to cure within such period and thereafter
diligently completes the correction, and if such matters cannot be corrected
then there shall neither be a 30 day cure period nor any, extension thereof), or
if more than three notices of default are duly and properly given in any twelve
month period, or (b) if any assignment shall be made by Tenant, or any assignee,
sublessee or guarantor of Tenant, for the benefit of creditors, or (c) if
Tenant's leasehold interest shall be taken on execution or by other process of
law, or (d) if a petition is filed by Tenant, or any assignee, sublessee or
guarantor of Tenant, for adjudication as a bankrupt, or for reorganization or an
arrangement under any provision of any bankruptcy act then in force and effect,
or (e) if an involuntary petition under the provisions of bankruptcy act is
filed against Tenant, or any assignee, sublessee or guarantor of Tenant, and
such involuntary petition is not dismissed within thirty (30) days thereafter,
or (f) if Tenant or any such assignee, sublessee or guarantor shall be declared
bankrupt or insolvent according to law, or (g) if a receiver, trustee or
assignee shall be appointed for the whole or any part of Tenant's (or such
assignee's, sublessee's or guarantor's) property and shall not be removed within
thirty (30) days thereafter, or (h) if a warranty contained in Section 8.11
shall be untrue in some material respect then, and in any such case, Landlord
and its agents and employees lawfully may, in addition to and not in derogation
of any remedies for any preceding breach, immediately or at any time thereafter,
without demand or notice and with or without process of law, enter into and upon
the Premises or
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any part thereof in the name of the whole, or mail a notice of termination of
the Term addressed to Tenant at the Premises, and thereby repossess the same as
of Landlord's former estate. Notwithstanding the foregoing, if any event
described in clauses (d), (e) and (f) shall occur, but Tenant otherwise shall
not be in default hereunder, then the occurrence of such event shall not
constitute a default by Tenant hereunder. Upon such entry or mailing, as the
case may be, the Term shall terminate, all executor rights of Tenant and all
obligations of Landlord under this Lease shall immediately cease, and Landlord
may expel Tenant and all persons claiming by, through or under Tenant and remove
its and their effects without being deemed guilty of any manner of trespass and
without prejudice to any remedies which might otherwise be used for arrears of
rent .. prior breach of covenants; Tenant hereby waiving all statutory and
equitable rights to its leasehold (including without limitation rights in the
nature of further cure or of redemption, if any). Landlord may, without notice,
store Tenant's effects, and those of any person claiming by, through or under
Tenant, at the expense and risk of Tenant. Tenant agrees that a notice by
Landlord alleging any default shall, at Landlord's option (the exercise of such
option shall be indicated by the inclusion of the words "notice to quit" in such
notice), constitute a statutory notice to quit and waives any further notices to
quit or of intention to re-enter, and any grace periods provided for herein
shall run concurrently with any statutory notice periods. If any payment of
Annual Fixed Rent, additional rent, or other payment due from Tenant to Landlord
is not paid when due, then Landlord may, at its option, in addition to all other
remedies hereunder, impose a late charge on Tenant equal to 5% of the amount in
question if such payment is more than 3 days late, which late charge will be due
upon demand as additional rent.
7.2 REMEDIES FOR DEFAULT. In the event of termination far of this Lease or
otherwise, default under any of the provisions Tenant covenants and agrees to
pay forthwith to Landlord, at Landlord's election, a single lump sum payment
equal to the sum of (i) all Annual Fixed Rent, additional rent and all other
sums due hereunder to the date of payment, plus (ii) the excess of the then
present value to Landlord of the rent reserved for the residue of the Term over
the then present value of the fair marker rental value of the Premises for said
residue of the Term (which fair market rental value shall take into account
Landlord's reasonable expenses of reletting described below). The present value
to Landlord shall be calculated as though the Term had not been terminated, and
shall be a discounted value based on the projected periodic rent which would
have come due hereunder: fair market rental value shall likewise be a discounted
value. (for the purpose of calculating the additional rent which would have been
paid hereunder for the lump sum calculation, the last full year's charges for
additional rent is to be deemed constant for each year thereafter. The Federal
Reserve discount rate (or equivalent) shall be used in calculating present
values.) Should the parties be unable to agree on a fair market rental value,
the matter shall be submitted, upon the demand of either party, to the Boston,
Massachusetts office of the American Arbitration Association, with a request for
arbitration by a single arbitrator who shall be an MAI or ASREC appraiser who
has had at least 10 years experience in the leasing, owning or management of at
least 1,000,000 square feet of office space in the Greater Boston area, in
accordance with the rules of the Association. The parties agree that a decision
of the arbitrator shall be conclusive and
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binding upon them. If, at the end of the Term, the rent which Landlord has
actually received from the premises is less than the aggregate fair market rent
estimated as aforesaid, Tenant shall thereupon pay Landlord the amount of such
difference.
Unless Landlord elects such lump sum payment, Tenant covenants, as an
additional cumulative obligation after such termination, to pay punctually to
Landlord all the sums and so long as Tenant, or persons claiming under Tenant,
remains in possession perform all the obligations which Tenant covenants in this
Lease to pay and to perform in the same manner and to the same extent and at the
same time as if this Lease had not been terminated. In calculating the amounts
to be paid by Tenant pursuant to the preceding sentence Tenant shall be credited
with the net proceeds of any rent received by Landlord by reletting the
Premises, after deducting all Landlord's reasonable expenses in connection with
such reletting, including without limitation, all repossession costs, brokerage
commissions, fees for legal services, tenant allowances and expenses of
preparing the Premises for reletting, it being agreed by Tenant that Landlord
may (i) relet the Premises or any part or parts thereof for a term or terms
which may at Landlord's option be equal to or less than or exceed the period
which would otherwise have constituted the balance of the Term, and may grant
such concessions as Landlord in its sole judgment considers advisable or
necessary, and (ii) make such alterations, repairs and decorations in the
Premises as Landlord in its sole judgment considers advisable or necessary, and
no action of Landlord in accordance with the foregoing or failure to relet or to
collect rent under any reletting shall operate or be construed to release or
reduce Tenant's liability as aforesaid. Any obligation to relet the Premises
imposed upon Landlord by law shall be subject to Landlord's reasonable
objectives of developing its property in a harmonious manner with appropriate
mixes of tenants, uses, floor areas, terms, etc.
7.3 REMEDIES CUMULATIVE. Any and all rights and remedies Landlord may have
under this Lease, and at law and equity, shall be Landlord may have under
cumulative and Shall not be deemed inconsistent with each other, and any two or
more of all such rights and remedies may be exercised at the same time insofar
as permitted by law. Nothing contained in this Lease shall, however, limit or
prejudice the right of Landlord to prove and obtain in proceedings for
bankruptcy or insolvency by reason of the termination of this Lease, an amount
equal to the maximum allowed by any statute or rule of law in effect at the time
when and governing the proceedings in which the damages are to be proved,
whether such amount be greater, equal to, or less than the amount of the loss or
damages referred to in the preceding Section.
7.4 EFFECT OF WAIVERS OF DEFAULT. Any consent or permission by Landlord or
Tenant to any act or omission which otherwise would be a breach of any covenant
or condition, or any waiver by Landlord or Tenant of any shall not in any way be
held breach of any covenant or condition, or construed to operate so as to
impair the continuing obligation of such covenant or condition, or otherwise
operate to permit other similar acts or omissions. No breach shall be deemed to
have been waived unless and until such waiver be in writing and signed by the
party against whom such waiver shall be enforceable. The failure of Landlord to
seek redress for violation of or insist upon the strict performance of
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any covenant or condition of this Lease, or the receipt by Landlord of rent with
knowledge of any violation, shall not be deemed a consent to or waiver of such
violation, nor shall it prevent a subsequent act, which would otherwise
constitute a violation, from in fact being a violation.
7.5 NO ACCORD AND SATISFACTION; NO SURRENDER. No acceptance by Landlord of
a lesser sum than the Annual Fixed Rent, additional rent or any other sum or
charge then due shall be deemed to he other than on account of the earliest
installment of such rent, sum or charge due; nor shall any endorsement or
statement on any check or in any letter accompanying any check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such installment
or pursue any other right or remedy available to it. The delivery of keys (or
any similar act) to Landlord or any agent or employee of Landlord shall not
operate as a termination of this lease or an acceptance of a surrender of the
Premises.
7.6 WAIVER OF JURY. Landlord and Tenant hereby waive trial by jury in any
summary proceeding in any emergency or other statutory remedy, or in any action
based, in whole or in part, on non-payment of rent; and Tenant further agrees
that it shall not interpose any counterclaim or set-off in any such proceeding.
7.7 LANDLORD'S CURING AND ENFORCEMENT. If Tenant shall neglect or fail to
perform or observe any covenant or condition of this Lease and shall not cure
such default within the applicable cure period, Landlord may, at its option,
without waiving any claim for breach, at any time thereafter cure such default
for the account of Tenant, and any amount paid or any liability incurred by
Landlord in so doing shall be deemed paid or incurred for the account of Tenant,
and Tenant shall reimburse Landlord therefor, together with, administrative
charge of fifteen (15%) per cent of the amount thereof, on demand as additional
rent; and Tenant shall further indemnify and save Landlord harmless in the
manner elsewhere provided in this Lease in connection with all of Landlord's
actions in effecting any such cure. Notwithstanding any other provision herein
concerning cure periods, Landlord may cure any default for the account of Tenant
after such notice to Tenant, if any, as is reasonable under the circumstances (
including telephone notice) if the curing of such default prior to the
expiration of the applicable cure period is reasonably necessary to prevent
likely damage to the Premises or other improvements or possible injury to
persons, or to protect Landlord's interest in its property or the Premises.
Tenant shall pay to Landlord on demand as additional rent all of the costs and
expenses of Landlord, including such administrative charge and reasonable
attorneys' fees, incurred in enforcing any covenant or condition of this Lease.
without limiting any of its other rights or remedies, any sum due hereunder
shall, in addition, bear interest from the date due at the greater of (i) one
and one-half (1 1/2%) per cent for each month (or ratable portion thereof) the
same remains unpaid, or (ii) three (3%) per cent per annum (or ratable portion
thereof) above the so-called base or prime lending rate charged by State Street
Bank and Trust Company of Boston from time to time on 90 day loans to its most
credit-worthy
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borrowers; provided that interest shall never exceed the maximum rate permitted
under applicable law.
7.8 LANDLORD'S DEFAULT. In no event shall Landlord be in default unless
notice thereof has been given to Landlord (and all mortgagees of which Tenant
has notice) and Landlord (or any such mortgagee at its sole discretion) fails to
perform with reasonable promptness under the circumstances (provided, however,
that such period shall be reaonsably extended if such performance begins within
such period and thereafter is diligently pursued, or if such mortgagee notifies
Tenant within such period that it intends to cure on behalf of Landlord and
thereafter begins and diligently pursues curing with reasonable promptness).
7.9 SECURITY DEPOSIT. Tenant shall pay to Landlord as a security deposit
for the performance of the obligations of Tenant hereunder any amount as
specified therefor in Sections 1.1 and 5.1.11. Said security deposit may be
mingled with other funds of landlord and no fiduciary relationship shall be
created with respect to such deposit, nor shall Landlord be liable to pay Tenant
interest thereon. If Tenant shall fail to perform any of its obligations under
this Lease, Landlord may, but shall not be obliged to, apply the security
deposit to the extent necessary to cure the default, and Tenant shall be obliged
to reinstate such security deposit to the original amount thereof upon demand.
Within 30 days after the expiration or sooner termination of the Term the
security deposit, to the extent not applied, shall be returned to the Tenant,
without interest.
ARTICLE VIII
------------
MISCELLANEOUS PROVISIONS
------------------------
8.1 NOTICE FROM ONE PARTY TO THE OTHER. All notices required or permitted
hereunder shall be in writing and shall be deemed duly served if mailed by
certified mail, postage prepaid or by a regularly scheduled overnight courier,
with provision made for payment, and receipting of delivery, addressed, if to
Tenant, at the Original Address of Tenant or such other address as Tenant shall
have last designated by notice in writing to Landlord and, if to Landlord, at
the Original Address of Landlord or such other address as Landlord shall have
last designated by notice in writing to Tenant. If requested, Tenant shall send
copies of all such notices in like manner to Landlord's mortgagees and any other
persons having an interest in the Premises and designated by Landlord. Any
Notice so addressed shall be deemed duly served on the second business day
following the day of mailing if so mailed by registered or certified mail,
return receipt requested, whether or not accepted.
8.2 QUIET ENJOYMENT. Landlord agrees that upon Tenant's paying all rent and
performing and observing all covenants, conditions and other provisions on its
part to be performed and observed, Tenant may peaceably and quietly have, hold
and enjoy the Premises during the Term without disturbance by Landlord or anyone
claiming by,
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through or under it, subject always to the terms of this Lease, provisions of
law, and rights or interests of record to which this Lease may be or become
subject and subordinate.
8.3 LIMITATION OF LANDLORD'S LIABILITY. Landlord shall be liable only for
breaches of Landlord's obligations occurring while Landlord is owner of the fee
of which the Premises are a part (provided, however, that if Landlord shall ever
sell and lease-back such fee, or the ground thereof or the improvements thereon,
then "fee" shall, in such event, be deemed to mean Landlord's leasehold
interest). Tenant (and all persons claiming by, through or under Tenant) agrees
to look solely to Landlord's interest from time to time in the fee of which the
Premises are a part for satisfaction of any claim or recovery of any judgment
from Landlord; it being agreed that neither Landlord nor any trustee,
beneficiary, partner, agent or employee of Landlord shall ever be personally or
individually liable for any claim or judgment, or otherwise, to Tenant (or such
persons) . For the purposes of this Paragraph 8.3, the term "Landlord's interest
in the fee of which the Premises are a part"shall include rentals, other
income, condemnation awards, insurance proceeds, sales proceeds or proceeds of
refinancing with respect to such interest. In no event shall Landlord ever be
liable to Tenant (or such persons) or indirect or consequential damages; nor
shall Landlord ever be answerable or liable in any equitable judicial proceeding
or order to the extent that the cost of complying with such proceeding or order
shall exceed its interest in the fee or leasehold of which the Premises are a
part.
8.4 EXCUSABLE DELAY. In any case where either party hereto is required to
do any act (other than the payment of Annual Fixed Rent, additional rent or any
other sum or charge, including without limitation ascertaining the dates when
such rental payments are payable), delays caused by or resulting from war, civil
commotion, fire, flood or other casualty, labor difficulties, shortages or other
unavailability of labor, materials, equipment, energy or utility services,
unusually severe weather, or other like causes beyond such party's reasonable
control shall not be counted in determining the time during which such act shall
be completed, whether such time be a fixed date, a fixed time or "a reasonable
time," and such time shall be deemed to be extended by the period of such delay.
8.5 APPLICABLE LAW AND CONSTRUCTION. This Lease may be executed in
counterpart copies and shall be governed by and construed as a sealed instrument
in accordance with the laws of The Commonwealth of Massachusetts. If any
provision shall to any extent be invalid, the remainder of this Lease shall not
be affected. Other than contemporaneous instruments executed and delivered of
even date, if any, this Lease contains all of the agreements between Landlord
and Tenant with respect to the Premises and supersedes all prior dealings
between them with respect thereto. There are no oral agreements between Landlord
and Tenant affecting this Lease. This Lease may be amended only by an instrument
in writing executed by Landlord and Tenant. The enumeration of specific examples
of a general provision shall not be construed as a limitation of the general
provision. Unless a party's approval or consent is required by its terms not to
be unreasonably withheld, such approval or consent may be withheld in the
party's sole discretion- If Tenant is granted any extension or other option, to
be effective the exercise (and notice thereof) shall be unconditional, time
always being of the essence
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to any options; and if Tenant purports to condition the exercise of any option
or vary its terms in any manner, then the option granted will automatically and
immediately become null and void and the purported exercise will be ineffective.
This Lease and all consents, notices and other related instruments may be
reproduced by any party by photographic, microfilm, microfiche or other
reproduction process and the originals thereof may be destroyed; and each party
agrees that reproductions will be admissible in evidence to the same extent as
the original itself in and judicial or administrative proceeding (whether or not
the original is in existence and whether or not reproduction was made in the
regular course of business), and further reproduction will likewise be
admissible. The titles of the several Articles and Sections are for convenience
only, and shall not be considered a part hereof. The submission of a form of
this Lease or any summary of its terms shall not constitute an offer by Landlord
to Tenant; but a leasehold shall only be created and the parties bound when this
Lease is executed and delivered by both Landlord and Tenant.
8.6 SUCCESSORS AND ASSIGNS. Except as herein provided otherwise, the
agreements and conditions in this Lease contained on the part of Landlord to be
performed and observed shall be binding upon Landlord and its legal
representatives, successors and assigns, and shall inure to the benefit of
Tenant and its legal representatives, successors and assigns; and the agreements
and conditions on the part of Tenant to be performed and observed shall be
binding upon Tenant (and any guarantor of Tenant) and Tenant's legal
representatives, successors and assigns and shall inure to the benefit of
Landlord and its legal representatives, successors and assigns.
8.7 RELATIONSHIP OF THE PARTIES. Nothing herein shall be construed as
creating the relationship between Landlord and Tenant of principal and agent, or
of partners or joint venturers; it being understood and agreed that neither the
manner of fixing rent, nor any other provision of this Lease, nor any act of the
parties, shall ever be deemed to create any relationship between them other than
the relationship of landlord and tenant.
8.8 ESTOPPEL CERTIFICATE. Within 10 days of either party's request,
Landlord and Tenant agree, in favor of the other, to execute, acknowledge and
deliver a statement in writing certifying that this Lease is unmodified and in
full force and effect (or, if there have been any modifications that the same is
in full force and effect as modified and stating the modifications), and the
amount and dates to which the Annual Fixed Rent (and additional rent and all
other charges) have been paid and any other information reasonably requested.
Both parties intend and agree that any such statement may be relied upon by any
prospective purchaser, mortgagee, or other person to whom the same is delivered.
Tenant acknowledges that prompt execution and delivery of such statements, and
all instruments referred to in Article X, constitute essential requirements of
any financings or sales by Landlord, and Tenant will indemnify Landlord in the
manner elsewhere provided against all costs and damages (including consequential
damages directly or indirectly resulting from Tenant's failure to comply
herewith (notwithstanding any grace period) or Landlord's right to execute the
same of Tenant's behalf.
-33-
34
8.9 NOTICE OF LEASE. Neither party shall record this Lease, but each party
will, upon request of the other, execute a recordable notice of lease in a form
reasonably approved by Landlord and, upon termination for whatever reason, a
like notice of termination of lease.
8.10 CONSTRUCTION OF ADJACENT PREMISES. Landlord shall have the right, in
connection with any development within or adjacent to the Building, to grant
easements through the Building for access and egress to and from such
development and for the installation, maintenance, repair, replacement or
relocation of utilities serving such development and/or the Premises and for the
installation, removal, maintenance, repair and replacement of windows and
walkways related to such development, provided the same do not materially and
adversely affect Tenant's use and occupancy of the Premises or materially reduce
the size of the Premises. Such right shall include the right to grant such
easements through the Premises, provided that installations, replacements or
relocations of utilities in the Premises shall, as far as practicable, be placed
above existing ceiling surfaces, below floor surface or within perimeter walls.
This Lease shall be subject and subordinate to any easements so granted. (Such
subordination shall be self-operative, but in confirmation thereof Tenant shall
execute and deliver whatever instruments may be required to acknowledge such
subordination in recordable form. Landlord and its agents, employees, licensees
and contractors shall also have the right during any construction period for any
such development to enter the Premises to undertake work pursuant to any
easement granted pursuant to the above paragraph; to shore up the foundations
and/or walls of the Premises and Building; to erect scaffolding and protective
barricades around the Premises or in other locations within or adjacent to the
Building; and to do any other act necessary for the safety of the Premises or
Building or the expeditious completion of such construction. Landlord shall not
be liable to Tenant for any compensation or reduction of rent by reason of
inconvenience or annoyance or for loss of business resulting from any act by
Landlord pursuant to this Section. Landlord shall use best efforts so as not to
unreasonably interfere with the conduct of Tenant's business and to minimize the
extent and duration of any inconvenience, annoyance or disturbance to Tenant
resulting from any work pursuant to this Section in or about the Premises or
Building, consistent with accepted construction practice. The exercise of such
rights will not materially result in any substantial permanent reduction in the
floor area of the Premises.
8.11 TENANT AS BUSINESS ENTITY. If Tenant is a business entity, then Tenant
warrants and represents that (a) Tenant is duly organized, validly existing and
in good standing under the laws of the jurisdiction in which such entity was
organized; (b) Tenant has the authority to carry on its business as contemplated
under this Lease; (c) Tenant has duly executed and delivered this Lease; (d) the
execution, delivery and performance by Tenant of this Lease (i) are within the
powers of Tenant, (ii) have been duly authorized by all requisite action, or
(iii) will not violate any provision of law or any order of any court or agency
or government, or any agreement or other instrument to which Tenant is a party
of by which it or any of its property is bound and (e) the Lease is a valid and
binding obligation of Tenant in accordance with its terms. Tenant, if a business
entity, agrees that breach of the foregoing warranty and representation shall at
Landlord's election be a
-34-
35
default under this Lease for which there shall be no cure. This warranty and
representation Shall survive the termination of the Term.
ARTICLE IX
----------
9.1 BROKERS. Tenant represents and warrants to Landlord that it, has not
dealt with any broker (other than Landlord's Agent and the person identified as
the Broker in Section 1.1, if any) in connection with this Lease or the Premises
and agrees to indemnify and save Landlord harmless from all loss, claim, damage,
cost or expense (including reasonable attorneys' fees of counsel of Landlord's
choice against whom Tenant makes no reasonable objection) arising from any
breach of this representation and warranty. This warranty and representation
shall survive the term or any early termination of this Lease. The fees of
Landlord's Agent and any Broker named in Section 1.1 will be paid by Landlord.
ARTICLE X
---------
LANDLORD'S FINANCING
--------------------
10.1 SUBORDINATION AND SUPERIORITY OF LEASE. Tenant agrees that this Lease
and the rights of Tenant hereunder will be subject and subordinate to the
present or future lien of any first mortgage, (and at Landlord's election, to
the lien of any subordinate mortgage or mortgages) and to the rights of any
lessor under any ground or improvements lease of the Premises (collectively
referred to in this Lease as a "mortgage" and the holder or lessor thereof from
time to time as a "mortgagee" and to all advances and interest thereunder and
all modifications, renewals, extensions and consolidations thereof; provided
however, that with respect to future liens, such subordination only shall be
effective if the mortgagee of any mortgage hereafter granted executes and
delivers to Tenant an agreement in form and substance reasonably satisfactory to
Tenant in which the mortgagee agrees that Tenant shall not be disturbed in its
possession, and for which Tenant attorns to such mortgagee as its possession,
Lease covenants (both of which Landlord and performance of its conditions Tenant
agrees with all mortgagees to perform). Tenant agrees that any mortgagee may at
its option unilaterally elect to subordinate, in whole or in part and by
instrument in form and substance satisfactory to such mortgagee alone, the lien
of its mortgage (or the priority of its ground lease) to some or all provisions
of this Lease.
Tenant agrees that this Lease shall survive the merger of estates of ground
(or improvements) lessor and lessee. Until a mortgagee (either superior or
subordinate to this Lease) forecloses Landlord's equity of redemption (or
terminates in the case of a ground or improvements lease) no mortgagee shall be
liable for failure to perform any of Landlord's obligations (and such mortgagee
shall thereafter be liable only after it succeeds to and holds Landlord's
interest and then only as limited herein). No mortgagee shall be
-35-
36
bound by any payment of rent more than one month in advance. Tenant shall, if
requested by Landlord or any mortgagee, give notice of any alleged
non-performance on the part of Landlord to any such mortgagee; and Tenant agrees
that such Mortgagee shall have a separate, consecutive reasonable cure period to
Landlord of 30 days of no less than 30 days following a Landlord's cure period
to Landlord of 30 days during which such mortgagee may, but need not, cure any
"non-performance by Landlord. The agreements in this Lease with respect to the
rights and powers of a mortgagee to constitute a continuing offer to any person
which may be accepted by taking a mortgage (or entering into a ground or
improvements lease) of the Premises
10.2 RENT ASSIGNMENT. If from time to time Landlord assigns this Lease or
the rents payable hereunder to any person, whether such assignment is
conditional in nature or otherwise, such assignment shall not be deemed an
assumption by the assignee of any obligations of Landlord; but the assignee
shall be responsible only for non-performance of Landlord's obligations which
occur after it succeeds to and only while it holds Landlord's interest in the
premises.
10.3 OTHER INSTRUMENTS. The provisions of this Article shall be
self-operative; nevertheless, Tenant execute, be self-operative; Tenant agrees
to acknowledge and deliver any subordination, attornment or priority agreements
or other instruments conforming to the provisions of this Article (and being
otherwise commercially reasonable) from time to time requested by Landlord or
any mortgagee in furtherance of the foregoing, and further agrees that its
failure to do so within 10 days after written demand shall be subject to the
monetary default provisions of this Lease.
WITNESS the execution hereof under seal as of the date first set forth
above.
TENANT: X. X. XXXXX & CO. - CONN.
By: /S/ X.X. Xxxx 5/31/88
-------------------------
(Vice) President
By :
--------------------------
(Assistant) Treasurer
LANDLORD : Ledgemont Realty Trust
By: /S/ Xxxxxx X. Xxxx
-------------------------
Trustee, but not individually
-36-
37
APPENDIX A
[Diagram of the leased premises]
ONE LEDGEMONT XXXXXX
X XXXXXXXX
-00-
00
XXXXXXXX A1
[Overhead diagram of the building,
land and parking facilities]
-38-
39
APPENDIX A2
[Overhead diagram of the building,
land and parking facilities]
-39-
40
APPENDIX B
----------
SPECIAL MAINTENANCE AND OPERATION REQUIREMENTS
----------------------------------------------
In addition and not in limitation of Tenant's obligations set forth in
Section 5.1.2 and elsewhere in the Lease, Tenant shall perform or cause to be
performed the following:
1. CHEMICAL WASTE DISPOSAL SYSTEM.
------------------------------
Landlord represents and warrants that to Landlord's knowledge, the
chemical waste disposal system is functioning on the date of this Lease. Tenant
shall not discharge any chemicals or substance into the chemical waste disposal
system, which system, in turn, discharges into the Lexington sewer system, if
such discharge is prohibited by federal, state, municipal, Metropolitan District
Commission or other governmental authority, or will impair or adversely affect
operation of the system, without limiting the generality of the foregoing,
Tenant shall nor discharge cleaning fluids or similar solvents into the system.
Tenant shall at all times be solely responsible for informing itself of the
applicable laws and regulations pertaining to the discharge of such chemicals or
substances and the operation of the chemical waste disposal system (and Landlord
shall cooperate with Tenant by making available such information as it has
regarding the operation of such system). Tenant shall cooperate with all
reasonable requests made by Landlord of Tenant and all other users of the
system. If Landlord reasonably determines there is incompatibility of any
materials being discharged into the system, the Tenant shall abide by such
conditions on discharge as Landlord may impose, or if Landlord requires,
terminate such discharge. The failure by Landlord to prevent or terminate any
discharge shall in no event be deemed a waiver of the foregoing provisions, or
of any other Lease provisions; and in all events Tenant shall indemnify and save
Landlord harmless in the manner
-40-
41
provided in Section 5.1.5 and from the matters referred to in such Section,
including without limitation claims or actions by any person (including
governmental authorities) or from damage to the system attributable in whole or
in part to Tenant's use of such system.
2. DUMPSTER
--------
Tenant shall arrange for its own appropriately sized dumpster, and
shall locate the same in the vicinity of Tenant's loading bay in a manner
reasonably approved by Landlord.
3. No storage, except for the storage shed, shall be permitted outside
of the Premises. Storage inside the Premises shall be in a manner not visible
from outside the Premises. Landlord shall accept and either store or dispose of
hoods and furniture now in the Premises which Tenant has removed.
-41-
42
APPENDIX D
----------
TENANT WORK INSURANCE SCHEDULE
------------------------------
1. Tenant shall Purchase and, unless waived in writing by the Landlord in
particular instances, shall cause each Tenant Contractor to purchase, in a
company or companies whose A.M. Best rating for the most recent year is not less
than B+, XII against such insurance as will protect him from claims set forth
below which may arise out of or result from the contractor's operations be by
himself or by any subcontractor or by anyone directly or indirectly employed by
any of them, or by anyone for whose acts any of them may be liable:
.1 claims under worker's or workmen's compensation, disability benefit
and other similar employee benefit acts;
.2 claims for damages because of bodily injury, occupational sickness
or disease, or death of his employees;
.3 claims for damages because of bodily injury, sickness or disease, or
death of any person other than his employees;
.4 claims for damages insured by personal injury liability coverage
which are sustained (1) by any person as a result of an offense directly or
indirectly related to the employment of such person by the Contractor, or (2) by
any other person;
.5 claims for damages, other than to the Tenant Work itself, because of
injury to or destruction of tangible property, including loss of use resulting
therefrom;
.6 claims for damages because of bodily injury or death of any person
or property damage arising out of the ownership, maintenance or use of any motor
vehicle; and
.7 claims for contractual liability (written only) under his
undertaking with Tenant.
2. The insurance required by Section 1 of this Schedule shall include all
major divisions of coverage, and shall be on a comprehensive general basis
including Premises and Operations (deleting X-C-U exclusions), Owners' and
Contractor's Protective, Products and Completed Operations, and Owned,
Non-owned, and Hired Motor Vehicles. Workers' Compensation should be written to
include the endorsements following: 1) All States, 2) Voluntary Compensation, 3)
Endemic disease, 4) Foreign Coverage, 5) Repatriation, 6) U.S. Longshoreman's
and Harbor Workers. Such insurance shall be written for not less than any limits
of liability required by law or those set forth below (which amounts may, from
time to time be reasonably increased by Landlord), whichever is greater.
-42-
43
.1 Workmen's Compensation - Statutory/Employers Liability and all
additional endorsements $500,000.
.2 Public Liability - Single Limit (Combined) Per Occurrence.
Bodily a Personal Injury $1,000,000
Property Damage $1,000,000 Per Occurrence/Aggregate.
.3 Automobile Liability - Single Limit (Combined) Per Occurrence.
Bodily a Personal Injury $1,000,000
Property Damage $1,000,000 Per Occurrence
.4 Independent Contractors - $1,000,000 Per Occurrence.
.5 Products and Completed Operations - $1,000,000 Per Occurrence,
covering liability for claims made within applicable statutes of limitations
following issuance of final Certificate of Payment.
.6. Broad Form Blanket Contractual Liability (written only) $1,000,000
Per Occurrence.
.7 Excess Liability Umbrella - $5,000,000 Per Occurrence.
3. Certificates of insurance as required above shall be filed with
Landlord, if requested by Landlord, prior to commencement of the Tenant Work.
These Certificates shall contain a provision that coverages afforded under the
policies will not be amended, canceled or non-renewed until at least 30 days
prior written notice has been given to Landlord. The form of certificate shall
be reasonably acceptable to Landlord. If by the terms of insurance carried by
Tenant or any Tenant Contractor a mandatory deductible is required, in the event
of a paid claim Tenant or such Tenant Contractor shall be responsible for the
deductible amount. All deductible/self-insured retention amounts shall be shown
on the Certificate of Insurance. In all cases, Landlord and persons designated
by Landlord shall be named as additional insureds, as the insureds may appear.
-43-
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FIRST AMENDMENT
---------------
Lease From
----------
LEDGEMONT REALTY TRUST
----------------------
TO
--
X. X. XXXXX & CO.-XXXX.
-----------------------
This is the First Amendment made as of July 1, 1990 to the Lease dated as
of May 31, 1988 between Ledgemont Realty Trust as Landlord, and X. X. Xxxxx &
Co.-Conn., as Tenant, for the Premises at Ledgemont Center, Lexington,
Massachusetts (the "Lease").
WHEREAS, the Landlord is willing and the Tenant wishes to lease additional
space on the "200 Level" at One Ledgemont Center on the terms and conditions as
provided in this Lease and in accordance with Section 1.1. and as modified in
this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Landlord and the Tenant amend
the Lease (a) by substituting the following subjects of Section 1.1, REFERENCE
SUBJECTS for the original subjects of Section 1.1 REFERENCE SUBJECTS and (b) if
any of the following subjects is identified by a parenthetical statement next to
its heading. that it is an "Additional Reference Subject," by adding each such
Additional Reference Subject as an additional provision of the Lease and the
Lease is hereby so amended:
PREMISES:
--------
Portions of the Building known generally as the "200 Level and 300 Level" of
Building C and the East Wing of One Ledgemont Center more particularly described
by the hatching on Appendix A attached.
LEASE ENDING DATE:
------------------
May 31, 1995, subject to Tenant Termination Option described below in this
Section.
ANNUAL FIXED RENT -- INITIAL TERM:
----------------------------------
$0.00 per month from the Lease Commencement Date until the date which is the
181st day after the Lease Commencement Date.
$26,135.00 per month (or ratable portion thereof) from the date which is the
181st date after the Lease Commencement Date through May 31, 1989.
45
$366,019.00 per annum for the period June 1, 1989 through May 31, 1990.
$31,425.92 per month for the period June 1, 1990 through December 31, 1990.
$422,111.00 per annum ($35,175.92 per month) for the period January 1, 1991
through May 31, 1992.
$444,294.00 per annum for the period June 1, 1992 through May 31, 1993.
$465,885.50 per annum for the period June 1, 1993 through May 31, 1994 subject
to the Tenant Termination Option described below in this Section.
$488,550.20 per annum for the period June 1, 1994 through May 31, 1995 subject
to the Tenant Termination Option described below in this Section.
TENANT'S PERCENTAGE SHARE:
--------------------------
16.62 percent through June 30, 1990 and 19.02 percent thereafter. Landlord
covenants and agrees that, for the purposes of this Lease, Tenant's Percentage
Share shall not, except as provided in Section 4.5, be increased for any reason
whatsoever, unless Tenant shall lease additional space in the project.
ADDITIONAL LANDLORD'S WORK: (Additional Reference Subject)
---------------------------
Landlord covenants and agrees to provide Tenant with access to the Premises on
the "200 Level" as shown on the attached plan and agrees to provide the premises
in broom clean condition (including replacing any ceiling tiles as necessary) to
Tenant upon occupancy.
TENANT TERMINATION OPTION:
--------------------------
It is agreed that Tenant Termination Option as outlined in the original Lease
dated May 31, 1988 has been intentionally omitted from this amendment.
By (1) notice given to Landlord at least 270 (but not more than 360) days prior
to May 31, 1993 ("First Cancellation Date") or prior to May 31, 1994 ("Second
Cancellation Date"), and (2) Tenant thereafter making the following Termination
Payments when and as due, Tenant may terminate the term of this Lease
respectively upon the First Cancellation Date or Second Cancellation Date. If
the Lease is to be so terminated on the First Cancellation Date, then Tenant
shall pay to Landlord, as consideration for such termination option, the sum of
$150,000 on the First Cancellation Date and, upon such payment the Term of this
Lease shall be deemed to have expired by its terms and such date shall be deemed
the last day of the Term; and if the Lease is to be terminated on the Second
Cancellation Date, then Tenant shall pay to Landlord, as consideration for such
termination option, the sum of $75,000 on the Second Cancellation Date and, upon
such payment the Term of this Lease shall be deemed to have expired by its terms
and such date shall be deemed the last day of the Term.
2
46
RIGHT OF FIRST REFUSAL: (Additional Reference Subject)
----------------------
Tenant shall have a right of first offer with respect to certain space
consisting of approximately 10,336 rentable square feet on the 200 Level of the
C Building (the "Expansion Space") as follows: Upon expiration of the rights of
existing tenants of the Expansion Space, and provided such existing tenants
elect not to remain in such Expansion Space beyond the termination of their
lease terms, before marketing such Expansion Space, Landlord will offer the same
to Tenant ("First Offer"). The First Offer will be at $15.00 per rentable square
foot through May 31, 1993 and thereafter at prevailing fair market rental rates
(which First Offer will so state such prevailing rates) for the space in an
"as-is" condition on the date herein with minor cosmetic improvements as
reasonably requested by Tenant. Within 20 days of receiving Landlord's First
Offer Tenant may in writing elect to accept the First Offer, in which case an
appropriate amendment to this Lease shall be executed forthwith, provided
however, that if the First Offer is made during or after the fifth Lease year of
the Term, Tenant may elect to accept the First Offer only if Tenant has already
elected or then simultaneously elects to extend the Term of this Lease. If
Tenant fails to accept such First Offer within such 20 day period (or accepts
such offer but fails to execute an appropriate amendment to this Lease within
the 10 day period following expiration of the 20 day period), then Landlord may
market such Space and may enter into any lease for such Space within the 360 day
period thereafter so long as the rent and other economic terms taken as a whole
are not more than ten percent (10%) less favorable to Landlord than were the
terms of the First Offer (but the term may be longer or shorter than the First
Offer term). Should Landlord desire to conclude a lease on materially less
favorable terms, then Landlord shall make another First Offer to Tenant
reflecting such less favorable terms and Tenant shall have the same rights as
set forth above, except that the 20 day period for accepting such offer shall be
10 days and the 10 day period for executing a lease amendment shall be five days
(with Landlord then being free to enter into a lease on economic terms not
materially less favorable to Landlord than those most recently offered to
Tenant).
PARKING SPACES: Fifty (50) spaces.
--------------
EXTENSION: (Additional Reference Subject)
---------
The Lease may be extended by Tenant for two (2), five (5) year extension terms
by unconditional notice given at least 360 (but not more than 540) days prior to
the end of the expiring term, time being of the essence to such exercise, so
long as at the time of such notice and at the beginning of the Extension Term
Tenant is not in default. All references to the Term shall mean the Initial Term
as it may be extended by any Extension Term.
ANNUAL FIXED RENT - EXTENSION TERM: If the Term is extended for the
Extension Term, then Annual Fixed Rent will be as set forth in Section 1.1 and
as follows:
Fair Market Rent for the premises during the Extension Term shall be no
less per annum than the Annual Fixed Rent payable during the last 360 days of
the expiring term, and shall be ascertained as follows: Not later than 330 days
prior to the end of the expiring term Landlord
3
47
shall give written notice to Tenant setting forth Landlord's determination of
Fair Market Rent for each of the Lease years of the Extension Term in question
(which may be different from year to year). Within 30 days following Landlord's
notice Tenant shall either propose its determination of Fair Market Rent by
giving notice thereof to Landlord or shall accept Landlord's determination.
Failure on the part of Tenant to give such notice of its determination shall
bind Tenant to Landlord's determination. If Tenant proposes its determination of
Fair Market Rent, then Landlord and Tenant shall meet for the purpose of
reaching agreement. If the parties have been unable to reach agreement by the
beginning of the ninth month preceding the end of the expiring term, then
Landlord shall give notice to Tenant of an appraiser whom Landlord designates to
ascertain such rent. If within 10 days of such notice Tenant objects to such
person, then Tenant shall give notice to Landlord and designate another
appraiser (and failure so to notify Landlord shall bind Tenant to the appraiser
designated by Landlord). If within ten days of such notice Landlord objects to
such person (and failure so to notify Tenant shall bind Landlord to the
appraiser designated by Tenant), then both such appraisers shall meet and within
10 days of such objection designate a third appraiser, who alone shall within 30
days of his or her designation ascertain such Fair Market Rent. (If the two
appraisers fail to designate the third appraiser within such time, then either
Landlord or Tenant may request the then president of the Greater Boston Real
Estate Board, or successor organization to designate the third appraiser; and if
such person fails to designate a third appraiser within 30 days, then the
American Arbitration Association, Boston Office to designate the third
appraiser). Any appraiser designated shall have had at least 10 years experience
in the leasing, ownership or management of 1,000,000 or more square feet of
floor area of office buildings similar in character to the Premises and shall be
a member of A.S.R.E.C. (or successor professional organization) and duly qualify
as an expert witness over objection to give opinion testimony addressed to the
issue in a court of competent jurisdiction. Fair Market Rent shall be the Annual
Fixed Rent which a willing tenant would pay to lease the Premises for each year
of the Extension Term in question under terms and conditions substantially the
same as those of this Lease, with the Premise considered free and clear of this
Lease and as though then available for single or multiple occupancies for the
Permitted Uses (or any higher and better use then being made by Tenant, the mix
of any multiple occupancies being what is then customary in light of good real
estate practice) in the condition in which Tenant is required to maintain the
Premises (or if in Landlord's reasonable judgment Tenant Work has been installed
which adversely affects rental value and Landlord has the right to have Tenant
remove such Work at the termination of the Term, then as though such Tenant Work
were removed), based on rentals for comparable space over a comparable period
with appropriate adjustments made to such rentals as necessary to establish
comparability, and with rental historically paid under this Lease disregarded.
If the parties do not agree in writing on such rent, then the written opinion of
Fair Market Rent of the appraiser so chosen shall conclusively establish such
rent ("Fair Market Rent"). Both parties shall have the opportunity to present
evidence in accordance with reasonable procedures prescribed by the appraiser,
and the fee of the appraiser giving his or her written opinion shall be paid
equally by the parties. If Landlord should delay in giving the notice which
begins the valuation procedures of this paragraph, or if the process should
otherwise be delayed for any reason, then such procedures shall nevertheless
remain in effect and be applicable when and as invoked with respect to Annual
Fixed Rent payable during the Extension Term; but until such procedures are
completed Tenant shall pay on account of Annual Fixed Rent at the rate
established for Annual Fixed Rent for the last twelve months of the expiring
term (and upon Fair
4
48
Market Rent being established shall pay the same within 10 days retroactively to
the beginning of the Extension Term in question).
Except as so amended, the Lease and all its terms and conditions are hereby
ratified, confirmed and approved.
AGREED TO AND ACCEPTED
TENANT: X. X. Xxxxx & Co.-Xxxx.
By: /s/ F. van Remoortere
---------------------------
(Vice) President
LANDLORD: Ledgemont Realty Trust
By: /s/ Xxxxxx X. Xxxx
----------------------------
Trustee, but not individually
5
49
SECOND AMENDMENT
----------------
LEASE FROM
----------
LEDGEMONT REALTY TRUST
----------------------
TO
--
X. X. XXXXX & CO., - CONN.
--------------------------
This is the Second Amendment made as of February 1, 1991 to the Lease dated
as of May 31, 1988 between Ledgemont Realty Trust as Landlord, and X.X. Xxxxx &
Co.-Xxxx., as Tenant, for the Premises at Ledgemont Center, Lexington,
Massachusetts (the "Lease").
WHEREAS, THE Landlord is willing and the Tenant wishes to lease additional
space on the "400 Level" at One Ledgemont Center on the terms and conditions as
provided in this Lease and in accordance with Section 1.1 and as modified in
this Second Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Landlord and the Tenant amend
the Lease (a) by substituting the following subjects of Section 1.1, REFERENCE
SUBJECTS for the original subjects of Section 1.1 REFERENCE SUBJECTS and (b) if
any of the following subjects is identified by a parenthetical statement next to
it stating that it is an "Additional Reference Subject," by adding each such
Additional Reference Subject as an additional provision of the Lease and the
Lease is hereby so amended:
PREMISES:
---------
Portions or the Building known generally as the "400 Level and 300 Level" of
Building C and the East Wing of One Ledgemont Center more particularly described
by the hatching on Appendix A attached.
LEASE ENDING DATE:
------------------
May 31, 1995, subject to Tenant Termination Option described below in this
Section.
ANNUAL FIXED RENT -- INITIAL TERM:
----------------------------------
$0.00 per month from the Lease Commencement Date until the date which is the
18lst day after the Lease Commencement Date.
$26,135.00 per month (or ratable portion thereof) from the date which is the
181st date after the Lease Commencement Date through May 31, 1989.
$366,019.00 per annum for the period June 1, 1989 through May 31, 1990.
$31,425.92 per month for the period June 1, 1990 through January 31, 1991.
50
$422,111.00 per annum ($35,175.92 per month) for the period February 1, 1991
through December 31, 1991.
$478,361.00 per annum ($39,863.42 per month) for the period January 1, 1992
through May 31, 1992.
$500,544.00 per annum for the period June 1, 1992 through May 31, 1993.
$522,135.50 per annum for the period June 1, 1993 through May 31, 1994 subject
to the Tenant Termination Option described below in this Section.
$544,800.20 per annum for the period June 1, 1994 through May 31, 1995 subject
to the Tenant Termination Option described below in this Section.
TENANT'S PERCENTAGE SHARE:
--------------------------
16.62 Percent through January 31, 1991 and 21.82 Percent thereafter. Landlord
covenants and agrees that, for the purposes of this Lease, Tenant's Percentage
Share shall not, except as provided in Section 4.5, be increased for any reason
whatsoever, unless Tenant shall lease additional space in the project.
ADDITIONAL LANDLORD'S WORK: (Additional Reference Subject)
--------------------------
Landlord covenants and agrees to provide Tenant with access to the Premises on
the "400 Level" as shown on the attached plan and agrees to provide the Premises
in broom clean condition to Tenant upon occupancy.
TENANT TERMINATION OPTION:
--------------------------
It is agreed that Tenant Termination Option as outlined in the original Lease
dated May 31, 1988 has been intentionally omitted from this amendment .
By (1) notice given to Landlord at least 270 (but not more than 360) days xxxxx
to May 31, 1993 ("First Cancellation Date") or prior to May 31, 1994 ("Second
Cancellation Date"), and (2) Tenant thereafter making the following Termination
Payments when and as due, Tenant may terminate the term of this Lease
respectively upon the First Cancellation Date or Second Cancellation Date. If
the Lease is to be so terminated on the First Cancellation Date, than Tenant
shall pay to Landlord, as consideration for such termination option, the sum of
$150,000 on the First Cancellation Date and, upon such payment the Term of this
Lease shall be deemed to have expired by its terms and such date shall be deemed
the last day of the Term; and if the Lease is to be terminated on the Second
Cancellation Date, then Tenant shall pay to Landlord, as consideration for such
termination option, the sum of $75,000 on the Second Cancellation Date and, upon
such
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payment the Term of this Lease shall be deemed to have expired by its terms and
such date shall be deemed the last day of the Term.
RIGHT OF FIRST REFUSAL: (Additional Reference Subject)
-----------------------
Tenant shall have a right of first offer with respect to certain space
consisting of approximately 20,000 rentable square feet on the 400 Level of the
C Building (the "Expansion Space") as follows: Upon expiration of the rights of
existing tenants of the Expansion Space, and provided such existing tenants
elect not to remain in such Expansion Space beyond the termination of their
lease terms, before marketing such Expansion Space, Landlord will offer the same
to Tenant ("First Offer"). The First Offer will be at $15.00 per rentable square
foot through May 31, 1993 and thereafter at prevailing fair market rental rates
(which First Offer will so state such prevailing rates) for the space in an
"as-is" condition on the date herein with minor cosmetic improvements as
reasonably requested by Tenant. Within 20 days of receiving Landlord's First
Offer, Tenant may in writing elect to accept the First Offer, in which case an
appropriate amendment to this Lease shall be executed forthwith, provided
however, that if the First Offer is made during or after the fifth Lease Year of
the Term, Tenant may elect to accept the First Offer only if Tenant has already
elected or then simultaneously elects to extend the Term of this Lease. If
Tenant fails to accept such First Offer within such 20 day period (or accepts
such offer but fails to execute an appropriate amendment to this Lease within
the 10 day period following expiration of the 20 day period), then Landlord may
market such space and may enter into any lease for such Space within the 360 day
period thereafter so long as the rent and other economic terms taken as a whole
are not more than ten percent (10%) less favorable to Landlord than were the
terms of the First Offer (but the term may be longer or shorter than the First
Offer term). Should Landlord desire to conclude a lease on materially less
favorable terms, then Landlord shall make another First Offer to Tenant
reflecting such less favorable terms and Tenant shall have the same rights as
set forth above, except that the 20 day period for accepting such offer shall be
10 days and the 10 day period for executing the lease amendment shall be five
days (with Landlord then being free to enter into a lease on economic terms not
materially less favorable to Landlord than those most recently offered to
Tenant).
PARKING SPACES: Fifty (50) spaces.
---------------
EXTENSION: (Additional Reference Subject)
---------
The Lease may be extended by Tenant for two (2), five (5) year extension terms
by unconditional notice given at least 360 (but not more than 540) days prior to
the end of the expiring term, time being of the essence to such exercise, so
long as at the time of such notice and at the beginning of the Extension Term
Tenant is not in default. All references to the Term shall mean the Initial Term
as it may be extended by any Extension Term.
ANNUAL FIXED RENT - EXTENSION TERM: If the Term is extended for the
Extension Term, than Annual Fixed Rent will be as set forth in Section 1.1 and
as follows:
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Fair Market Rent for the Premises during the Extension Term shall be no
less per annum than the Annual Fixed Rent payable during the last 360 days or
the expiring term, and-shall be ascertained as follows: Not later than 330 days
prior to the end of the expiring term Landlord shall give written notice to
Tenant setting forth Landlord's determination of Fair Market Rent for each of
the Lease years of the Extension Term in question (which may be different from
year to year). Within 30 days following Landlord's notice Tenant shall either
propose its determination of Fair Market Rent by giving notice thereof to
Landlord or shall accept Landlord's determination. Failure on the part of Tenant
to give such notice of its determination shall bind Tenant to Landlord's
determination. If Tenant proposes its determination of Fair Market Rent, then
Landlord and Tenant shall meet for the purpose of reaching agreement. If the
parties have been unable to reach agreement by the beginning of the ninth month
preceding the end of the expiring term, then Landlord shall give notice to
Tenant of an appraiser whom Landlord designates to ascertain such rent. If
within 10 days of such notice Tenant objects to such person, then Tenant shall
give notice to Landlord and designate another appraiser (and failure so to
notify Landlord shall bind Tenant to the appraiser designated by Landlord). If
within ten days of such notice Landlord objects to such person (and failure so
to notify Tenant shall bind Landlord to the appraiser designated by Tenant),
then both such appraisers shall meet and within 10 days of such objection
designate a third appraiser, who alone shall within 30 days of his or her
designation ascertain such Fair Market Rent. (If the two appraisers fail to
designate the third appraiser within such time, then either Landlord or Tenant
may request the then president of the Greater Boston Real Estate Board, or
successor organization to designate the third appraiser; and if such person
fails to designate a third appraiser within 30 days, then the American
Arbitration Association, Boston Office to designate the third appraiser). Any
appraiser designated shall have had at least 10 years experience in the leasing,
ownership or management of 1,000,000 or more square feet of floor area of office
buildings similar in character to the Premises and shall be a member of
A.S.R.E.C. (or successor professional organization) and duly qualify as an
expert witness over objection to give opinion testimony addressed to the issue
in a court of competent jurisdiction. Fair Market Rent shall be the Annual Fixed
Rent which a willing tenant would pay to lease the Premises for each year of the
Extension Term in question under terms and conditions substantially the same as
those of this Lease, with the Premise considered free and clear of this Lease
and as though then available for single or multiple occupancies for the
Permitted Uses (or any higher and better use then being made by Tenant, the mix
of any multiple occupancies being what is then customary in light of good real
estate practice) in the condition in which Tenant is required to maintain the
Premises (or if in Landlord's reasonable judgment Tenant Work has been installed
which adversely affects rentable value and Landlord has the right to have Tenant
remove such work at the termination of the Term, then as though such Tenant Work
were removed), based on rentals for comparable space over a comparable period
with appropriate adjustments made to such rentals as necessary to establish
comparability, and with rental historically paid under this Lease disregarded.
If the parties do not agree in writing on such rent, then the written opinion of
Fair Market Rent of the appraiser so chosen shall conclusively establish such
rent ("Fair Market Rent"). Both parties shall have the
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opportunity to present evidence in accordance with reasonable procedures
prescribed by the appraiser, and the fee of the appraiser giving his or her
written opinion shall be paid equally by the parties. If Landlord should delay
in giving the notice which begins the valuation procedures of this paragraph, or
if the process should otherwise be delayed for any reason, then such procedures
shall nevertheless remain in effect and be applicable when and as invoked with
respect to Annual Fixed Rent payable during the Extension Term; but until such
procedures are completed Tenant shall pay on account of Annual Fixed Rent at the
rate established for Annual Fixed Rent for the last twelve months of the
expiring term (and upon Fair Market Rent being established shall pay the same
within 10 days retroactively to the beginning of the Extension Term in
question).
Except as so amended, the Lease and all its terms and conditions are
hereby ratified, confirmed and approved.
AGREED TO AND ACCEPTED
TENANT: X. X. Xxxxx & Co.-Conn.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
(Vice) President
LANDLORD: Ledgemont Realty Trust
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Trustee, but not individually
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THIRD AMENDMENT TO LEASE
------------------------
Amendment dated as of July 12, 1993 by and between Ledgemont Realty Trust
u/d/t dated December 12, 1984 ("Landlord") and X. X. Xxxxx & Co.-Xxxx., a
Connecticut corporation ("Tenant").
Background
----------
A. Landlord and Tenant are parties to a Lease dated May 31, 1988 as amended
by a First Amendment dated July 1, 1990 and by a Second Amendment dated February
1, 1991 (the "Lease") regarding premises (the "Existing Premises") on the 300
and 400 levels in the buildings known as Building C and the East Wing of One
Ledgemont Center.
B. Landlord and Tenant desire to amend the Lease to add space to the
Existing Premises and to reflect certain other agreements between Tenant and
Landlord.
Agreements
----------
FOR VALUATION CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, and in consideration of the mutual covenants herein
contained, Landlord and Tenant agree as follows:
1. The Existing Premises shall be expanded effective as of the date hereof
by adding to them the space shown on Exhibit A attached hereto (the "Expansion
Premises"). From and after the date hereof, all references in the Lease to the
"Premises" shall be deemed to refer to the Existing Premises and the Expansion
Premises, collectively.
2. From and after September 1, 1993, the Annual Fixed Rent due under the
Lease shall be as follows:
PERIOD ANNUAL FIXED RENT
------ -----------------
September 1, 1993-May 31, 1994 $561,315.50
June 1, 1994-May 31, 1995 $583,980.20
3. From and after September 1, 1993, Tenant's Percentage share shall be
increased to 24.35%.
4. The construction by Tenant of improvements in the Expansion Premises
shall be paid for by Tenant and otherwise shall be subject to the provisions of
the Lease governing Tenant Work
5. Capitalized terms used herein, but not defined shall have the meanings
set forth in the Lease.
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6. Except as amended hereby, the Lease is ratified and confirmed.
Executed as a sealed Massachusetts instrument as of the date first
written above.
TENANT:
X. X. Xxxxx & Co.-Conn.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President, Research
Director
LANDLORD:
LEDGEMONT REALTY TRUST
By: /s/ Xxxxxx X. Xxxx
------------------------------
Trustee, but not individually
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