Exhibit 10.20
OFFICE LEASE
by and between
MARLBOROUGH CAMPUS LIMITED PARTNERSHIP
as landlord
and
3COM CORPORATION
as tenant
OFFICE LEASE
OFFICE LEASE.............................................................................1
ARTICLE 1 PREMISES, BUILDING, PROJECT, AND COMMON AREAS.................................3
1.1 The Premises.................................................................3
1.2 The Building and The Project.................................................4
1.3 Common Areas.................................................................4
1.4 Furniture....................................................................6
1.5 Card Key Access..............................................................6
ARTICLE 2 LEASE TERM....................................................................7
2.1 Lease Term...................................................................7
2.2 Option to Extend.............................................................7
ARTICLE 3 BASE RENT.....................................................................8
3.1 Base Rent....................................................................8
ARTICLE 4 ADDITIONAL RENT...............................................................8
4.1 General Terms................................................................8
4.2 Definitions of Key Terms Relating to Additional Rent.........................9
4.3 Allocation of Direct Expenses...............................................12
4.4 Calculation and Payment of Additional Rent..................................13
4.5 Taxes and Other Charges for Which Tenant Is Directly Responsible............14
4.6 Landlord's Books and Records................................................15
4.7 Tenant's Electricity Cost...................................................15
4.8 Additional Rent for Additional Premises.....................................15
ARTICLE 5 USE OF PREMISES..............................................................16
5.1 Permitted Use...............................................................16
5.2 Prohibited Uses.............................................................16
5.3 CC&Rs.......................................................................16
5.4 Condition of Premises.......................................................17
5.5 Demising Plan...............................................................17
5.6 Rules and Regulations.......................................................18
ARTICLE 6 SERVICES AND UTILITIES.......................................................18
6.1 Standard Tenant Services....................................................18
6.2 Requirements of Tenant......................................................19
6.3 Interruption of Use.........................................................19
ARTICLE 7 REPAIRS......................................................................20
7.1 Landlord's Obligations......................................................20
7.2 Tenant's Obligations........................................................21
ARTICLE 8 ADDITIONS AND ALTERATIONS....................................................21
8.1 Landlord's Consent to Alterations...........................................21
8.2 Manner of Construction......................................................22
8.3 Payment for Improvements....................................................23
8.4 Construction Insurance......................................................23
8.5 Landlord's Property.........................................................23
ARTICLE 9 COVENANT AGAINST LIENS.......................................................24
ARTICLE 10 INSURANCE....................................................................24
10.1 Indemnification and Waiver..................................................24
10.2 Tenant's Compliance With Landlord's Fire and Casualty Insurance.............25
10.3 Tenant's Insurance..........................................................25
10.4 Form of Policies............................................................26
10.5 Subrogation.................................................................26
10.6 Landlord's Insurance........................................................26
ARTICLE 11 DAMAGE AND DESTRUCTION.......................................................27
11.1 Repair of Damage by Landlord................................................27
11.2 Landlord's Option to Repair.................................................28
11.3 Tenant's Option to Terminate................................................29
11.4 Waiver of Statutory Provisions..............................................29
ARTICLE 12 NON-WAIVER...................................................................29
ARTICLE 13 CONDEMNATION.................................................................29
13.1 Condemnation................................................................29
13.2 Tenant's Right to Award.....................................................30
ARTICLE 14 ASSIGNMENT AND SUBLETTING....................................................30
14.1 Transfers...................................................................30
14.2 Landlord's Consent..........................................................31
14.3 Transfer Premium............................................................32
14.4 Landlord's Option as to Subject Space.......................................33
14.5 Effect of Transfer..........................................................33
14.6 Occurrence of Default.......................................................34
14.7 Non-Transfers...............................................................34
ARTICLE 15 SURRENDER OF PREMISES; OWNERSHIP AND REMOVAL OF TRADE FIXTURES...............35
15.1 Surrender of Premises.......................................................35
15.2 Removal of Tenant Property by Tenant........................................35
ARTICLE 16 HOLDING OVER.................................................................35
16.1 Interim Premises............................................................35
16.2 Additional Premises.........................................................36
16.3 Premises....................................................................36
ARTICLE 17 ESTOPPEL CERTIFICATES........................................................37
ARTICLE 18 SUBORDINATION................................................................37
ii
ARTICLE 19 DEFAULTS: REMEDIES...........................................................38
19.1 Events of Default...........................................................38
19.2 Remedies Upon Default.......................................................39
19.3 Subleases of Tenant.........................................................40
19.4 No Relief From Forfeiture After Default.....................................40
19.5 Efforts to Relet............................................................40
19.6 Landlord Default............................................................40
ARTICLE 20 COVENANT OF QUIET ENJOYMENT..................................................41
ARTICLE 21 INTENTIONALLY OMITTED........................................................41
22.1 SATELLITE DISH.....................................................................41
22.2 Indemnification.............................................................43
ARTICLE 23 SIGNS........................................................................43
ARTICLE 24 COMPLIANCE WITH LAW..........................................................44
ARTICLE 25 LATE CHARGES.................................................................45
ARTICLE 26 LANDLORD'S RIGHT TO CURE DEFAULT: PAYMENTS BY TENANT.........................45
26.1 Landlord's Cure.............................................................45
26.2 Tenant's Reimbursement......................................................46
ARTICLE 27 ENTRY BY LANDLORD............................................................46
ARTICLE 28 TENANT PARKING...............................................................47
ARTICLE 29 MISCELLANEOUS PROVISIONS....................................................48
29.1 Terms; Captions.............................................................48
29.2 Binding Effect..............................................................48
29.3 No Air Rights...............................................................48
29.4 Transfer of Landlord's Interest.............................................48
29.5 Notice of Lease.............................................................48
29.6 Landlord's Title............................................................48
29.7 Relationship of Parties.....................................................48
29.8 Application of Payments.....................................................49
29.9 Time of Essence.............................................................49
29.10 Partial Invalidity..........................................................49
29.11 No Warranty.................................................................49
29.12 Landlord Exculpation........................................................49
29.13 Entire Agreement............................................................49
29.14 Right to Lease..............................................................50
29.15 Force Majeure...............................................................50
29.16 Notices.....................................................................50
29.17 Joint and Several...........................................................51
29.18 Authority..................................................................51
iii
29.19 Attorneys' Fees.............................................................51
29.20 Governing Law...............................................................51
29.21 Submission of Lease.........................................................52
29.22 Brokers.....................................................................52
29.23 Independent Covenants.......................................................52
29.24 Project or Building Name and Signage........................................52
29.25 Counterparts................................................................52
29.26 Confidentiality.............................................................53
29.27 Transportation Management...................................................53
29.28 Building Renovations........................................................53
29.29 No Violation................................................................53
29.30 Communications and Computer Lines...........................................53
29.31 Hazardous Substances........................................................54
29.32 Development of the Project..................................................54
29.33 No Consequential Damages....................................................55
29.34 Waiver of Landlord's Lien...................................................55
29.35 COMPLIANCE WITH TIF AGREEMENT.....................................................55
LIST OF EXHIBITS
Exhibit A Plan of the Premises (and labeling "Lab Areas")
Exhibit A-1 Plan for Loading Dock area in Building 2
Exhibit B Plan of the Project identifying Buildings 1, 2, 3, and 4
Exhibit C Furniture Inventory List
Exhibit C-1 Excluded Personal Property
Exhibit D Rules and Regulations
Exhibit E-1 Form of Tenant Estoppel Certificate
Exhibit E-2 Form of Landlord Estoppel Certificate
Exhibit F Plan of the Interim Premises
Exhibit G Notice of Lease
Exhibit H Plan of Additional Premises
iv
This
Office Lease (the "LEASE"), dated as of the date set forth in SECTION
1 of the Summary of Basic Lease Information (the "SUMMARY"), below, is made by
and between Marlborough Campus Limited Partnership, a
Massachusetts limited
partnership ("LANDLORD"), and
3Com Corporation, a Delaware corporation
("TENANT").
SUMMARY OF BASIC LEASE INFORMATION
TERMS OF LEASE DESCRIPTION
-------------- -----------
1. Date: November 26, 2002
2. Premises
(Article 1)
2.1 Building: That certain four-story building located at 0Xxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx in the "Project," commonly referred
to in the Project as "BUILDING 2."
2.2 Premises: Approximately 168,315 rentable square feet of space,
calculated per BOMA Standard Z65.1-1996 ("BOMA Standard")
comprising the entire Building, as further set forth in
EXHIBIT A to this Lease ("PREMISES").
2.3 Interim Premises Approximately 5,621 rentable square feet of space, calculated
per BOMA Standard, comprising a portion of the first and
second floors of Building 1, as further set forth in EXHIBIT F
to this Lease ("INTERIM PREMISES").
2.4 Project: The Building is part of that certain building complex (the
"PROJECT") consisting of four (4) buildings ( the "BUILDINGS")
comprising 530,895 rentable square feet of space, calculated
per BOMA Standard, and other improvements, as depicted on
EXHIBIT B and as further set forth in SECTION 1.2 of this Lease.
2.5 Additional Premises Approximately _____ square feet of space, located in Building
4, as further set forth in EXHIBIT H to this Lease
("ADDITIONAL PREMISES")
3. Lease Term
(Article 2)
3.1 Length of Initial Term: Approximately four (4) years.
3.2 Lease Commencement Date: The date Landlord acquires title to the Project
3.3 Lease Expiration Date: 11:59 p.m. EST on the last day of the month in which the fourth
(4th) anniversary of the Lease Commencement Date occurs, unless
sooner
terminated pursuant to the provisions hereof.
3.4 Option(s) to Extend Two options to extend for three (3) years each
4. Base Rent (Article 3):
Monthly Annual Rental Rate
Annual Installment Per Rentable
Lease Years Base Rent of Base Rent Square Foot
----------- --------- ------------ -----------
1-4 $ 3,534,615 $ 294,551.25 $ 21.00
First Option Term (5-7) $ 3,871,245 $ 322,603.75 $ 23.00
Second Option Term (8-10) $ 4,207,875 $ 350,656.25 $ 25.00
5. Base Year Calendar year 2003; it being understood that in calculating
(Article 4): Tax Expenses for the Base Year, Landlord shall use one-half of
the taxes for the fiscal year from July 1, 2002 to June 30, 2003
and one-half of the taxes for the fiscal year from July 1,2003
to June 30, 2004.
6. Tenant's Share 31.70% as of the Effective Date, subject to adjustment in
(Article 4): accordance with SECTION 4.3.
7. Permitted Use Tenant shall use the Premises for general office use,
(Article 5): including but not limited to research and development, sales,
training.
8. Security Deposit None.
(Article 21):
9. Parking Tenant shall have non-exclusive use of 550 parking spaces, as
(Article 28): more particularly set forth in ARTICLE 28.
10. Address of Tenant See SECTION 29.16 of this Lease.
(Section 29.16):
11. Address of Landlord See SECTION 29.16 of this Lease.
(Section 29.16):
12. Broker(s) None
(Section 29.22):
2
ARTICLE 1
PREMISES, BUILDING, PROJECT, AND COMMON AREAS
1.1 THE PREMISES. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the premises set forth in SECTION 2.2 of the Summary (the
"PREMISES") and shown on EXHIBIT A, attached hereto. The Premises consist of all
space within Building 2 (the "Building"), save and except only the Loading Dock
(defined in SECTION 5.5, below), and shall be deemed to be the number of
rentable square feet set forth in SECTION 2.2 of the Summary, subject to
adjustment in accordance with SECTION 4.3, below. Tenant shall not have the
right to remeasure the Premises. The parties hereto agree that the lease of the
Premises is upon and subject to the terms, covenants and conditions (the "TCCS")
herein set forth, and Landlord and Tenant covenant as a material part of the
consideration for this Lease to keep and perform each and all of such terms,
covenants and conditions by it to be kept and performed and that this Lease is
made upon the condition of such performance. During the term of the Lease,
Tenant shall have access to Building 4, such use to be in common with other
tenants and occupants of the Project, either (at Landlord's option): (i) through
Building 1 (via such floor and in such location(s) as shall be specified by
Landlord, in its reasonable discretion), or (ii) through an alternate, enclosed
weather-tight link, to be constructed by Landlord linking Building 2 and
Building 4 (directly or through the existing connector which links Building 1
and Building 4, and, in the event that Landlord elects to construct said link,
once said link is substantially complete and available for Tenant's use (which
use may be in common with other occupants of the Project), then Tenant shall not
longer have any right of access through Building 1 as set forth in clause (i)
above, and Landlord, at its option, may eliminate and/or prohibit Tenant's
access via the door referred to in SECTION 5.5(A), below). Tenant also
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty regarding the condition of the Premises, the Building
or the Project or with respect to the suitability of any of the foregoing for
the conduct of Tenant's business, except as specifically set forth in this
Lease. Landlord shall not be obligated to provide or pay for any improvement
work related to the improvement of the Premises except as expressly set forth in
SECTIONS 1.5 AND 5.5, below.
1.1.1 INTERIM PREMISES. Notwithstanding anything to the contrary
contained herein, from the Commencement Date through the date which is sixty
(60) days after the Commencement Date (the "TRANSITION PERIOD"), the Premises
shall include the Interim Premises. On or before the last day of the Transition
Period, Tenant shall vacate the Interim Premises, leaving the same in broom
clean condition, and shall surrender the Furniture and the raised flooring
located in the Interim Premises on the Commencement Date to Landlord in the same
condition and repair as on the Lease Commencement Date, reasonable wear and tear
and damage by casualty excepted. Tenant shall remove from the Interim Premises
and other areas of Building 1, and shall repair and restore any damage to the
Interim Premises and/or Building 1 caused by such removal, on or before the
expiration of the Transition Period the items owned or leased by Tenant from
third parties as set forth on EXHIBIT C-1. Notwithstanding anything to the
contrary, Landlord shall have access to the PBX Room shown on EXHIBIT F at all
times during the Transition Period.
1.1.2 TRANSITION PERIOD. During the Transition Period, Tenant
will, at its sole cost and expense, and subject to the provisions of ARTICLE 8,
separate Tenant's network cabling
3
and telecommunications infrastructure in order to move all of Tenant's personnel
and equipment into the Premises, and to vacate the Interim Premises.
1.1.3 ADDITIONAL PREMISES. Notwithstanding anything to the
contrary contained herein, commencing on the Commencement Date and continuing on
a month-to-month basis, terminable by Tenant at any time upon thirty (30) days
advance written notice to Landlord and terminable by Landlord effective at any
time after the first anniversary of the Commencement Date upon thirty (30) days
advance written notice to Tenant, the Premises shall include the Additional
Premises. Upon termination of this Lease with respect to the Additional
Premises, Tenant shall vacate the Additional Premises, leaving the same in broom
clean condition, and shall either: (i) relocate the Furniture located in the
Additional Premises on the Commencement Date to the Premises (to be surrendered
to Landlord at the expiration or earlier termination of the Lease), or (ii)
surrender the Furniture located in the Additional Premises on the Commencement
Date to Landlord in the same condition and repair as on the Lease Commencement
Date, reasonable wear and tear and damage by casualty excepted. Tenant shall
remove from the Additional Premises and other areas of Building 4, and shall
repair and restore any damage to the Additional Premises and/or Building 4
caused by such removal, on or before the expiration or earlier termination of
the Lease with respect to the Additional Premises the items owned or leased by
Tenant from third parties as set forth on EXHIBIT C-1. Landlord and Tenant agree
that the Additional Premises have not been used for the calculation of the
useable square footage contained in the Premises, but have been included in the
"load factor" in calculating the rentable square footage contained in the
Premises, and this method of calculation shall remain in effect for the one year
period commencing on the Lease Commencement Date. Landlord must give Tenant at
least forty-five (45) days notice prior to any recalculation of the size of the
Premises to include the Additional Space. Notwithstanding anything to the
contrary, Landlord shall have no obligation to provide any services, other than
standard Building system services for electric, mechanical and HVAC (which are
part of CAM), for the Additional Premises and Tenant shall at its sole cost and
expense provide janitorial services, as required.
1.2 THE BUILDING AND THE PROJECT. The Building is part of a complex of
buildings located on the Property consisting of four (4) buildings and other
improvements. The term "PROJECT," as used in this Lease, shall mean (i) the
Building and the Common Areas (as such term is defined in SECTION 1.3 below),
(ii) the land (which is improved with landscaping, parking areas, access roads
and other improvements) upon which the Building and the Common Areas are located
as shown on the Project Site Plan, and (iii) the three other office buildings
(including without limitation, "BUILDING 1", "BUILDING 3" and "BUILDING 4")
located adjacent to the Building and the land upon which such adjacent office
buildings are located, all substantially as shown on the Project Site Plan
attached hereto as EXHIBIT B.
1.3 COMMON AREAS. Tenant shall have the non-exclusive right to use in
common with Landlord and other tenants in the Project, and subject to the Rules
and Regulations (as defined in Section 5.6, below), those portions of the
Building and the Project which are provided, from time to time, for
non-exclusive use in common by Landlord, Tenant and any other tenants of the
Project (such areas, including without limitation parking areas, access roads
and sidewalks on the Project, whether or not shown on the Project Site Plan, and
common facilities within the Buildings, such as lobbies, corridors, stairwells,
elevators and restrooms, the Conference Facilities (as defined in Section 1.31,
below), Cafeteria (as defined in Section 1.3.2, below) and
4
Fitness Center (as defined in Section 1.3.2, below), together with such other
portions of the Project designated to Tenant in writing by Landlord to be shared
by Landlord and certain tenants, are collectively referred to herein as the
"COMMON AREAS"). Landlord shall maintain and operate the Common Areas in a
manner consistent with Comparable Buildings (as defined in SECTION 6.1).
Landlord reserves the right to close temporarily or permanently, make
alterations or additions to, or change the location of elements of the Project
and the Common Areas, including, without limitation, the right to (a) make
changes in the location, size, shape and number of driveways, entrances, parking
spaces, parking areas, loading and unloading areas, ingress, egress, direction
of traffic, landscaped areas and walkways; (b) to close temporarily any of the
Common Areas for maintenance purposes so long as reasonable access to the
Premises remains available; (c) to add additional improvements to the Common
Areas; (d) to use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Project, or any portion thereof; (e)
to do and perform such other acts and make such other changes in, to or with
respect to the Project, Building and Common Areas as Landlord may deem to be
appropriate; and (f) to remove areas from use as Common Areas; provided,
however, that Landlord's exercise of the foregoing rights shall not materially,
adversely interfere with Tenant's use and occupancy of the Premises or the
Common Areas, other than and excluding the Common Areas of Building 4, any or
all of which may, in Landlord's sole discretion, be closed temporarily or
permanently, or be withdrawn from Common Areas, subject only to the last two
sentences of SECTION 1.3.2. Notwithstanding anything to the contrary in this
SECTION 1.3, during the Lease Term no expansion of the rentable square feet of
space included within the Common Areas (whether or not in connection with future
development of the Project) or removal from service of rentable square feet
which was not part of the Common Areas as of the Lease Commencement Date shall
result in an increase in the load factor included within the calculation of the
size of the Premises for purposes of computing Tenant's Share.
1.3.1 CONFERENCE AND TRAINING ROOMS. Subject to availability, and
prior reservation in accordance with any procedures implemented by Landlord and
provided in writing to Tenant and applied uniformly to all tenants, Tenant shall
have the right to use the meeting and training rooms and the auditorium located
in Building 4 (collectively, the "CONFERENCE FACILITIES") in common with
Landlord and other tenants of the Project, to the extent otherwise permitted by
Landlord. The use of the Conference Facilities shall be subject to such rules
and requirements as Landlord may establish and provide in writing to Tenant in
accordance with Section 5.6, below, and to all other provisions of this SECTION
1.3. Tenant shall have the right to use the Conference Facilities without any
additional charge (beyond Tenant's Share of Operating Expenses) so long as its
use does not exceed Tenant's Share of the available days per month, with
Landlord reserving the right to monitor and limit to Tenant's Share Tenant's
utilization during normal working hours (versus other hours) or business days
(versus holiday and/or weekend days), in its reasonable business judgment.
Notwithstanding any other provision in this Lease to the contrary, Landlord
reserves the right, upon written notice to Tenant, to eliminate Tenant's right
to use the Conference Facilities (or portions thereof) if Landlord leases,
assigns, or otherwise transfers or assigns Landlord's rights to use such
portions of the Conference Facilities to another party, provided, however, if
Landlord leases the Conference Facilities to a third party that is not required
to make the Conference Facilities available for use by Tenant, then the portion
of the Conference Facilities that are no longer available to Tenant as set forth
above, shall no longer be considered to be Common Areas, and Tenant's Share
shall be adjusted in accordance with SECTION 4.3, below.
5
1.3.2 CAFETERIA AND FITNESS CENTER. Tenant and its employees,
contractors, visitors and consultants shall have the right to use the cafeteria
(the "CAFETERIA") located in the Project so long as it is operational provided
such parties shall be responsible for payment of all charges for meals and other
items purchased at the cafeteria. Tenant and its employees, contractors and
consultants shall have access to and the right to use the fitness center (the
"FITNESS CENTER") located in the Project so long as it is operational provided
such parties shall be responsible for payment of all charges customarily charged
by Landlord (or the operator of the Fitness Center) for the use of the Fitness
Center (currently $20.00 per month, not to be increased for Tenant's employees
and contractors by more than five percent (5%) per year). The use of such
facilities by Tenant and/or its employees, contractors, visitors and consultants
shall be subject to compliance with the other provisions of this SECTION 1.3.
Landlord shall have the right to require that Tenant's employees sign customary
waivers of claims and comply with all safety and other procedures applicable to
use of the Fitness Center. Notwithstanding any other provision herein to the
contrary, Landlord reserves the right, upon written notice to Tenant, (a) to
eliminate Tenant's right to use the Cafeteria and Fitness Center if Landlord
transfers or assigns its rights to use those facilities to another party and (b)
to otherwise reduce, modify or terminate in whole or in part all or any such
services or access to the Cafeteria or Fitness Center. Landlord shall provide
not less than ninety (90) days prior written notice to Tenant if the fitness
facility will be closed or materially reduced in size. If Landlord discontinues
cafeteria service during the Term, Landlord shall provide an alternative fresh
food (including breakfast items, sandwiches, and salads, but not hot food) and
vending service (not necessarily including any seating area) at the Project
sufficient to reasonably accommodate Tenant's employees, contractors, visitors
and consultants located at the Project.
1.4 FURNITURE. For no additional charge, Landlord hereby leases to Tenant
and Tenant hereby leases from Landlord those items of furniture situated in the
Premises (the "FURNITURE") and described on the inventory list attached hereto
as EXHIBIT C (the "INVENTORY LIST"). Landlord and Tenant acknowledge that Tenant
is currently using said Furniture and Tenants accepts the Furniture in its
"as-is" condition, without any representation or warranty by Landlord. LANDLORD
SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS AND/OR WARRANTIES, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE FURNITURE. During the Term of this Lease, Tenant
shall maintain and repair the Furniture as reasonably necessary; provided,
however, that Tenant shall be entitled to remove and store and/or reconfigure
the Furniture (e.g., cubicle density and design). Upon the expiration or earlier
termination of this Lease, Tenant shall surrender the Furniture to Landlord in
substantially the same condition and repair as on the Lease Commencement Date,
reasonable wear and tear and damage by casualty excepted; provided, however,
that Tenant shall not be required to relocate the Furniture to the same location
within the Premises (but shall relocate the Furniture to the Premises if it has
been stored outside the Premises) nor restore the Furniture to the configuration
and design as existed on the Lease Commencement Date. Any new or replacement
furniture purchased by Tenant and placed into service in the Premises during the
Lease Term shall remain the personal property of Tenant and shall not be
surrendered to Landlord on the expiration or earlier termination of this Lease.
1.5 CARD KEY ACCESS. As of the Lease Commencement Date, the Premises are
equipped with a portion of the Project-wide card key access system, Tenant's use
of which shall
6
be subject to the Rules and Regulations (as defined in Section 5.6, below).
Within sixty (60) days after the Lease Commencement Date, or such longer time as
shall be reasonably required by Landlord (not to exceed six months after the
Lease Commencement Date), Landlord shall remove all equipment relating to the
Project-wide card key system from Building 2 (excluding the equipment which
pertains only to Building 2) and relocate the same outside the Premises at
Landlord's sole cost. At any time during the Lease Term, Tenant shall have the
right to separate the card key access system for the Premises from the system
for the remainder of the Project at Tenant's sole cost. Except as expressly
provided herein, Tenant shall not have access to those portions of the Building
not comprising the Common Areas or the Premises, which shall remain subject to
Landlord's sole and exclusive control. Nothing herein shall preclude Landlord
from accessing the Premises, subject to the requirements of ARTICLE 27, for
purposes of undertaking maintenance or repairs or as otherwise provided in this
Lease. Landlord makes no representations or warranties (AND HEREBY EXPRESSLY
DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF
MERCHANTABILITY) regarding the suitability of any key card access system for
Tenant's particular purposes. In no event shall Landlord be responsible or
liable to Tenant or its employees for any unauthorized entry upon the Premises
or for any failure of the access system to prevent such entry.
ARTICLE 2
LEASE TERM
2.1 LEASE TERM. The TCCs of this Lease shall be effective as of the date
of this Lease as set forth in SECTION 1 of the Summary (the "EFFECTIVE DATE").
The initial term of this Lease (the "INITIAL TERM") shall be as set forth in
SECTION 3.1 of the Summary, shall commence on the date set forth in SECTION 3.2
of the Summary (the "LEASE COMMENCEMENT DATE"), and shall terminate on the date
set forth in SECTION 3.3 of the Summary (the "LEASE EXPIRATION DATE") unless
this Lease is sooner terminated as hereinafter provided. As used herein, "Lease
Term" shall refer to the Initial Term and to any Option Term(s) which have been
duly exercised.
2.2 OPTION TO EXTEND. Provided Tenant is not in default under this Lease
(beyond applicable notice and cure periods) and has not been in default in the
payment of recurring monthly payments of Base Rent, AP Rent, Tenant's
Electricity Cost and/or Tenant's Share of the Estimated Excess (beyond
applicable notice and cure periods, as set forth in SECTION 19.1.1, below) under
this Lease more than three (3) times in the prior twelve month period, at the
time it exercises the option or at commencement of the applicable Option Term,
Tenant shall have the right and option to extend this lease ("Option to Extend")
for two additional option periods of three years each (each, an "Option Term")
upon the same terms and conditions herein set forth except that the Base Rent
shall be adjusted in accordance with SECTION 4 of the Summary. To exercise its
Option to Extend, Tenant must give Landlord notice in writing sent so as to be
received at least twelve (12) months but not more than eighteen (18) months
prior to the expiration of the initial Lease Term or the then current Option
Term, as applicable. At Landlord's election, Tenant's exercise of its Option(s)
shall be void and of no effect if Tenant is in default under this Lease (beyond
applicable notice and cure periods) or has been in default of any monetary
obligation (beyond applicable notice and cure periods) under this Lease more
than
7
three times in the prior twelve month period on the date it exercises its
Option(s) to Extend or on the expiration of the Lease Term or Option Term
immediately preceding such Option Term, as applicable. Notwithstanding anything
to the contrary, in no event shall Tenant be allowed to exercise an Option to
Extend if Tenant has assigned the Lease to a Transferee other than pursuant to
SECTION 14.7, below, or if the Tenant and/or its Affiliates are not in
possession of at least forty-five percent (45%) of the Premises (free of any
subleases, other than subleases pursuant to SECTION 14.7, below).
ARTICLE 3
BASE RENT
3.1 BASE RENT. Commencing on the Lease Commencement Date, Tenant shall
pay, without prior notice or demand, to Landlord or Landlord's agent at the
management office of the Project, or, at Landlord's option, at such other place
as Landlord may from time to time designate in writing, by a check for currency
which, at the time of payment, is legal tender for private or public debts in
the United States of America, base rent ("BASE RENT") as set forth in SECTION 4
of the Summary, payable in equal monthly installments as set forth in SECTION 4
of the Summary in advance on or before the first day of each and every calendar
month during the Lease Term, without any setoff or deduction whatsoever, but
subject to abatement as expressly provided in SECTIONS 6.3, 11.1 AND 13.1, to
the extent applicable, and subject to adjustment in accordance with Section 4.3,
to the extent applicable. The Base Rent for the first full month of the Lease
Term shall be paid on the Commencement Date. If any Rent payment date (including
the Lease Commencement Date) falls on a day of the month other than the first
day of such month or if any payment of Rent is for a period which is shorter
than one month, the Rent for any fractional month shall accrue on a daily basis
for the period from the date such payment is due to the end of such calendar
month or to the end of the Lease Term at a rate per day which is equal to l/365
of the applicable annual Rent. All other payments or adjustments required to be
made under the TCCs of this Lease that require proration on a time basis shall
be prorated on the same basis.
ARTICLE 4
ADDITIONAL RENT
4.1 GENERAL TERMS. In addition to paying the Base Rent specified in
ARTICLE 3 of this Lease, Tenant shall pay "TENANT'S SHARE" of the annual "DIRECT
EXPENSES," as those terms are defined in SECTIONS 4.2.6 and 4.2.2 of this Lease,
respectively, which are in excess of the amount of Direct Expenses applicable to
the "Base Year," as that term is defined in SECTION 4.2.1, below; provided,
however, that in no event shall any decrease in Direct Expenses for any Expense
Year below Direct Expenses for the Base Year entitle Tenant to any decrease in
Base Rent or any credit against sums due under this Lease. In addition to the
foregoing obligations, Tenant shall also pay "TENANT'S ELECTRICITY COST," as
defined in Section 4.7 of this Lease, separately from any increases in Direct
Expenses. Such payments by Tenant, together with any and all other amounts
payable by Tenant to Landlord pursuant to the TCCs of this Lease, are
hereinafter collectively referred to as the "ADDITIONAL RENT," and the Base Rent
and the Additional Rent are herein collectively referred to as "RENT." All
amounts due under this ARTICLE 4 as Additional
8
Rent shall be payable for the same periods and in the same manner as the Base
Rent. The obligations of Tenant to pay the Additional Rent provided for in this
ARTICLE 4 shall survive the expiration or earlier termination of the Lease for
such period of time as is required to reconcile the Estimated Excess and
Overpayment Amount of Direct Expenses pursuant to SECTION 4.4.1 hereof;
provided, however, that any other contingent or unliquidated contractual claims
of Landlord or Tenant (e.g., indemnity) shall survive the expiration or earlier
termination of this Lease only for so long as any applicable statute of
limitations would permit such actions under
Massachusetts law.
4.2 DEFINITIONS OF KEY TERMS RELATING TO ADDITIONAL RENT. As used in this
ARTICLE 4, the following terms shall have the meanings hereinafter set forth:
4.2.1 "BASE YEAR" shall mean the period set forth in SECTION
5 of the Summary.
4.2.2 "DIRECT EXPENSES" shall mean "Operating Expenses" and
"Tax Expenses".
4.2.3 "EXPENSE YEAR" shall apply only to Operating Expenses
and shall mean each calendar year in which any portion of the Lease Term falls,
through and including the calendar year in which the Lease Term expires,
provided that Landlord, upon notice to Tenant, may change the Expense Year from
time to time to any other twelve (12) consecutive month period, and, in the
event of any such change, Tenant's Share of Operating Expenses shall be
equitably adjusted for any Expense Year involved in any such change.
4.2.4 "OPERATING EXPENSES" shall mean, except as otherwise
provided in this SECTION 4.2.4 or otherwise in this Lease, all expenses, costs
and amounts of every kind and nature which Landlord pays or accrues during any
Expense Year because of or in connection with the ownership, management,
maintenance, security, repair, replacement, restoration or operation of the
Project, or any portion thereof, subject to the allocation thereof as set forth
in SECTION 4.3, below. Without limiting the generality of the foregoing,
Operating Expenses shall specifically include any and all of the following: (i)
the cost of supplying utilities (excepting Tenant's Electricity Cost),
operating, repairing, maintaining, and renovating the utility, telephone, and
all other systems and equipment and components thereof of the Buildings and the
Project, and the cost of maintenance and service contracts in connection
therewith and payments under any equipment rental agreements; (ii) the cost of
all insurance carried by Landlord in connection with the Project and any
deductibles; (iii) the cost of landscaping the Project, or any portion thereof;
(iv) costs incurred in connection with repairs, replacements, resurfacing, and
sealing of the parking areas servicing the Project; (v) actual fees and other
costs including management fees (not to exceed three percent (3%) of gross
receipts, or, if payable to Landlord or an affiliate of Landlord, not to exceed
the lesser of three percent (3%) of gross receipts or the prevailing management
fees charged by third parties for Comparable Buildings), consulting fees, legal
fees and accounting fees in connection with the management, operation,
maintenance and repair of the Project; (vi) wages, salaries and other
compensation and benefits, including taxes levied thereon, of all persons
engaged in the operation, maintenance and security of the Project; provided,
however, that wages and/or benefits attributable to personnel above the level of
Project manager or Project engineer shall not be included in Operating Expenses;
and provided further,
9
if such persons are employees of Landlord or an affiliate of Landlord and also
work at projects other than the Property, such costs shall be allocated based on
the percentage of time spent at each project; (vii) the cost of janitorial,
alarm, security and other services, replacement of wall and floor coverings,
ceiling tiles and fixtures in Common Areas, maintenance and replacement of curbs
and walkways, repair to roofs and re-roofing; (viii) costs, fees, charges or
assessments imposed by, or resulting from any mandate imposed on Landlord by,
any federal, commonwealth, state or local government for fire and police
protection, trash removal, community services, or other services which are not
duplicative of "Tax Expenses" as that term is defined in SECTION 4.2.5, below;
(ix) any expenses incurred in repair, restoration or other work necessitated by
fire or other casualty to the extent of the deductible, and (x) any operating
expenses and/or deficits from the operation of the Fitness Facility and/or
Cafeteria. Parking lot expenses for resurfacing and replacement under SUBSECTION
4.2.4(iv), above, replacement of wall and floor covering and all roof repair and
resurfacing (including membrane) under SUBSECTION 4.2.4(vii), above, and all
other repairs or replacements and other costs incurred in connection with the
Project that are capital in nature under generally accepted accounting
principles shall be amortized (with interest at a commercially reasonable rate)
over the useful life of such items (determined in accordance with Treasury
Regulations) and the amortized portion and interest applicable to the respective
Expense Year shall be included in Operating Expenses.
Notwithstanding anything in this SECTION 4.2.4 to the contrary, for
purposes of this Lease, Operating Expenses shall not, however, include the
following:
(A) marketing costs, costs of leasing commissions, renovations,
attorneys' fees and other costs and expenses incurred in connection with
negotiations, disputes or litigation with present or prospective tenants or
other occupants of the Project;
(B) any expense resulting from the gross negligence or willful
misconduct of Landlord, its agents, contractors or employees;
(C) interest, principal, points and fees on debts or amortization on
any mortgage or mortgages or any other debt instrument encumbering the
Building or the Project;
(D) the original costs of constructing the Building and the Project,
any capital additions thereto and expenses incurred in converting any
Common Areas to useable square feet intended for the exclusive use of other
occupants of the Project, and depreciation of any of the foregoing
expenses;
(E) expenses to the extent Landlord will be reimbursed by another
source (excluding Operating Expense reimbursements by tenants), including
without limitation replacement of any items covered by warranties;
(F) costs incurred to benefit (or resulting from) a specific tenant
or items and services selectively supplied to any tenant other than Tenant
(e.g., excess utilities);
(G) expenses for the defense of Landlord's title to the Project;
(H) expenses that are at Landlord's sole cost under SECTION 7.1;
10
(I) charitable or political contributions;
(J) expenses incurred to comply with governmental regulations
(including without limitation all environmental laws and the Americans with
Disabilities Act), court order, decree or judgment in effect prior to the
Effective Date, except to the extent any noncompliance results from
Tenant's use and occupancy of the Premises;
(K) costs to correct any latent defects in the design, construction
or equipment of the Building or the Project;
(L) rental on ground leases or other underlying leases;
(M) cost of the initial stock of tools and equipment for operation,
repair and maintenance of the Building;
(N) costs associated with maintaining Landlord's existence as a
corporation or other legal entity; and
(O) all electrical charges included in Tenant's Electricity Cost.
4.2.5 TAXES.
4.2.5.1 "TAX EXPENSES" shall mean all federal, state,
commonwealth, county, or local governmental or municipal taxes, fees, charges or
other impositions of every kind and nature, whether general, special, ordinary
or extraordinary, (including, without limitation, real estate taxes, general and
special assessments, transit taxes, leasehold taxes or taxes based upon the
receipt of rent, measured as if the Project were the only property owned by
Landlord, including gross receipts, service tax, value added tax or sales taxes
applicable to the receipt of rent or services provided herein, and unless
required to be paid by Tenant, personal property taxes imposed upon the
fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances,
furniture and other personal property used in connection with the Project, or
any portion thereof), which shall be paid or accrued during any Tax Year (as
defined in SECTION 4.2.5.4) because of or in connection with the ownership,
leasing and operation of the Project, or any portion thereof.
4.2.5.2 Tax Expenses shall include, without limitation:
(i) any tax on the rent, right to rent or other income from the Project, or any
portion thereof, or as against the business of leasing the Project, or any
portion thereof (measured as if the Project were the only property owned by
Landlord); (ii) any assessment, tax, fee, levy, or charge allocable to or
measured by the area of the Premises or the Rent payable hereunder, including,
without limitation, any business or gross income tax or excise tax with respect
to the receipt of such rent, or upon or with respect to the possession, leasing,
operating, management, maintenance, alteration, repair, use or occupancy by
Tenant of the Premises, or any portion thereof (measured as if the Project were
the only property owned by Landlord); (iii) any assessment, tax, fee, levy or
charge, upon this transaction; and (iv) the amount of any payments or other
consideration (in cash or otherwise) that Landlord is required to make to any
taxing authority in connection with any tax abatement agreements benefiting the
Project.
11
4.2.5.3 Any costs and expenses (including, without
limitation, reasonable attorneys' fees) incurred in attempting to protest,
reduce or minimize Tax Expenses shall be included in Tax Expenses in the Tax
Year such expenses are paid. Tenant's Share of any refunds of Tax Expenses in
excess of the Base Year Tax Expenses shall be credited against Tenant's Tax
Expenses and any excess shall be refunded to Tenant regardless of when received,
based on the Tax Year to which the refund is applicable, provided that in no
event shall the amount to be refunded to Tenant for any such Tax Year exceed the
total amount paid by Tenant as Additional Rent under this ARTICLE 4 for such Tax
Year. If Tax Expenses for any period during the Lease Term are increased after
payment thereof for any reason, including, without limitation, error or
reassessment by applicable governmental or municipal authorities, Tenant shall
pay Landlord within fifteen (15) business days after receipt of Landlord's
written demand Tenant's Share of any such increased Tax Expenses included by
Landlord as Tax Expenses pursuant to the TCCs of this Lease. Notwithstanding
anything to the contrary contained in this SECTION 4.2.5 (except as set forth in
SECTION 4.2.5.1, above), there shall be excluded from Tax Expenses (i) all
excess profits taxes, franchise taxes, gift taxes, capital stock taxes,
inheritance and succession taxes, estate taxes, federal and commonwealth/state
income taxes, and other taxes to the extent applicable to Landlord's general or
net income (as opposed to rents, receipts or income attributable to operations
at the Project), (ii) any items included as Operating Expenses, (iii) any items
paid by Tenant under SECTION 4.5 of this Lease.
4.2.5.4 Landlord and Tenant agree that the Base Year for
the purposes of calculating Tenant's Additional Rent liability for Tax Expenses
shall be the calendar year 2003 (which shall be the sum of one-half of the Tax
Expenses for the period from July 1, 2002 through June 30, 2003 and one-half of
the Tax Expenses for the period from July 1, 2003 through June 30, 2004). Each
subsequent twelve (12) month calendar year period (i.e., January 1 - December
31) during the Lease Term shall be referred to as a "TAX YEAR", prorated for any
partial Tax Year at the end of the Lease Term. At Landlord's election, Tenant
shall pay Tenant's Share of any Tax Excess (as defined in SECTION 4.4) pursuant
to SECTIONS 4.4.1 and 4.4.2, or within fifteen (15) business days after receipt
of Landlord's written demand following the expiration or earlier termination of
the Lease Term. Landlord shall provide copies of any invoices or other notices
from the taxing authorities evidencing the Tax Expenses to Tenant with
Landlord's annual Statement (as defined in Section 4.4.1) or after receipt of
Tenant's written request for such documentation.
4.2.6 "TENANT'S SHARE" of Operating Expenses and Tax Expenses
shall mean the percentage set forth in SECTION 6 of the Summary, subject to
adjustment as set forth in SECTION 4.3.
4.3 ALLOCATION OF DIRECT EXPENSES. The parties acknowledge that the
Building is a part of a multi-building project and that the costs and expenses
incurred in connection with the Project (i.e. the Direct Expenses) will be
shared between the tenants and occupants of the Building and the tenants and
occupants of the other buildings in the Project. Accordingly, as set forth in
SECTION 4.2 above, Direct Expenses shall be determined for the Project as a
whole, and Tenant shall be responsible for paying Tenant's Share of the Direct
Expenses, provided, however, Landlord in its sole discretion, may determine and
allocate some or all Direct Expenses for each Building, in which case Tenant's
Share of such Direct Expenses shall be based on the percentage equal to its
proportionate share of the building in question. To the extent the entire
12
Project is not fully occupied, Landlord shall adjust the variable components of
Operating Expenses for the Base Year (and at Landlord's option, Landlord may
adjust the variable components of Operating Expenses for any Expense Year if the
Project is not fully occupied in such Expense Year), based on Landlord's
reasonable, good faith estimate based on historical operating expense
information for the Project or other reasonable data available to Landlord, to
determine the amount of Operating Expenses that would have been incurred in the
Project had the Project been one hundred percent (100%) occupied; and the amount
so determined shall be deemed to have been the amount of Operating Expenses for
such year attributable to the Project. If, during the Lease Term: (a) any
portion of rentable square feet of the Common Areas is converted for exclusive
use by occupants of the Project other than Tenant, such that Tenant no longer
has use thereof as contemplated by the terms of this Lease, the rentable square
feet of the Premises shall be recalculated according to the BOMA Standard, and
Base Rent for the Premises and Tenant's Share shall be reduced accordingly as of
the date such areas are no longer available for use by Tenant as contemplated by
this Lease, and /or (b) additional rentable square feet of improvements which
are not Common Areas are added to the Project, Tenant's Share shall be reduced
accordingly as of the date such rentable square feet are occupied by a tenant or
occupant that is entitled to the exclusive use thereof. In no event shall
Tenant's Share be increased. In no event shall Landlord be entitled to collect
from tenants more than 100% of Direct Expenses.
4.4 CALCULATION AND PAYMENT OF ADDITIONAL RENT. With respect to Operating
Expenses, if for any Expense Year ending or commencing within the Lease Term,
Tenant's Share of Operating Expenses for such Expense Year exceeds the
annualized amount of Tenant's Share of Operating Expenses applicable to the Base
Year, then Tenant shall pay to Landlord, in the manner set forth in SECTIONS
4.4.1 AND 4.4.2, below, and as Additional Rent, an amount equal to the excess
(the "OE EXCESS"). With respect to Tax Expenses, if for any Tax Year ending or
commencing within the Lease Term, Tenant's Share of Tax Expenses for such Tax
Year exceeds the annualized amount of Tenant's Share of Tax Expenses applicable
to the Base Year, then Tenant shall pay to Landlord, in the manner set forth in
SECTIONS 4.4.1 AND 4.4.2, below, and as Additional Rent, an amount equal to the
excess (the "TAX EXCESS"). The OE Excess plus the Tax Excess are sometimes
referred to herein collectively as the "EXCESS".
4.4.1 STATEMENT OF ACTUAL DIRECT EXPENSES AND PAYMENT BY TENANT.
Within one hundred fifty (150) days after the end of each applicable Expense
Year, Landlord will deliver to Tenant a statement (the "STATEMENT"), which shall
state the Direct Expenses incurred or accrued for such preceding Expense Year,
and which shall indicate the amount of the Excess, if any. Upon receipt of the
Statement for each applicable Expense Year, if an Excess is present, Tenant
shall pay, with its next installment of Base Rent due, the full amount of the
Excess for such Expense Year, less the amounts, if any, paid during such Expense
Year as "ESTIMATED EXCESS," as that term is defined in SECTION 4.4.2, below. In
the event the Statement shows that the amount paid by Tenant under SECTION
4.4.2, below, exceeded Tenant's Share of Direct Expenses for the Expense Year in
question (the "OVERPAYMENT AMOUNT"), then Landlord shall credit the Overpayment
Amount against the next due installments of Base Rent and Additional Rent;
provided, however, that with respect to the final Expense Year of the Lease
Term, Landlord shall pay to Tenant the Overpayment Amount, if any, on or before
fifteen (15) business days after Tenant's receipt of such Statement. The failure
of Landlord to timely furnish the Statement for any Expense Year shall not
prejudice Landlord or Tenant from enforcing its rights under this ARTICLE 4.
Even though the Lease Term has expired and Tenant has vacated the
13
Premises, when the final determination is made of Tenant's Share of Direct
Expenses for the Expense Year in which this Lease terminates, if an Excess if
present, Tenant shall pay such amount to Landlord within fifteen (15) business
days after Tenant's receipt of such final determination. If Tenant provides a
written request to Landlord within one (1) year after receipt of the Statement
provided in this SECTION 4.4.1, Tenant shall be entitled, during reasonable
business hours, to review Landlord's books and records on which Landlord has
calculated all Direct Expenses and shall promptly thereafter provide its written
analysis of Direct Expenses to Landlord. If Tenant's review discloses any
overpayment by Tenant, Landlord shall refund such amounts within fifteen (15)
business days after receipt of Tenant's calculations; if Tenant's review
discloses any underpayment by Tenant, Tenant shall pay such amounts at the time
it provides its calculations to Landlord. Tenant's audit shall be conducted by
either Tenant or a certified public accountant. Tenant's audit may not be
conducted by an individual or entity that is retained by Tenant primarily on a
contingent fee basis, other than PricewaterhouseCoopers, Deloitte & Touche,
Ernst & Young, or KPMG. The results of the audit shall be kept confidential by
Tenant and shall remain a private matter between Landlord and Tenant. Any
dispute between Landlord and Tenant concerning any item of Direct Expenses shall
not relieve Tenant of liability for payment of all other Excess amounts of
Direct Expenses. The provisions of this SECTION 4.4.1 shall survive the
expiration or earlier termination of the Lease.
4.4.2 STATEMENT OF ESTIMATED DIRECT EXPENSES. In addition,
Landlord shall cause to be delivered from time to time, at least annually, an
expense estimate statement (the "ESTIMATE STATEMENT") which shall set forth
Landlord's reasonable estimate (the "ESTIMATE") of what the total amount of
Direct Expenses for the then-current Expense Year shall be and the estimated
Excess (the "ESTIMATED EXCESS") as calculated by comparing the Direct Expenses
for such Expense Year, which shall be based upon the Estimate, over the amount
of Direct Expenses for the Base Year. The failure of Landlord to furnish an
Estimate Statement for any Expense Year shall not preclude Landlord from
enforcing its rights to collect any Estimated Excess under this ARTICLE 4, nor
shall Landlord be prohibited from revising any Estimate Statement or Estimated
Excess theretofore delivered to the extent necessary in Landlord's reasonable
business judgment. Upon receipt of any Estimate Statement, Tenant shall pay,
with its next installment of Base Rent due, the monthly amount of the Estimated
Excess for the then-current Expense Year indicated on the Estimate Statement.
Until a new Estimate Statement is furnished (which Landlord shall have the right
to deliver to Tenant at any time), Tenant shall continue to pay monthly, with
the monthly Base Rent installments, the monthly amount of the Estimated Excess
set forth in any previous Estimate Statement delivered by Landlord to Tenant.
4.5 TAXES AND OTHER CHARGES FOR WHICH TENANT IS DIRECTLY RESPONSIBLE.
4.5.1 Tenant shall be liable for and shall pay before delinquency
taxes levied against Tenant's equipment, furniture, fixtures and any other
personal properly located in or about the Premises (including without limitation
taxes levied against the Furniture, if any). If any such taxes on Tenant's
equipment, furniture, fixtures and any other personal property are levied
against Landlord or Landlord's property or if the assessed value of Landlord's
property is increased by the inclusion therein of a value placed upon such
equipment, furniture, fixtures or any other personal property and if Landlord
pays any properly assessed taxes based upon such increased assessment, which
Landlord shall have the right to do upon fifteen (15) business days prior
written notice to Tenant, including reasonably satisfactory backup documentation
14
evidencing such expenses, Tenant shall upon fifteen (15) business days notice to
Tenant repay to Landlord the taxes so levied against Landlord or the proportion
of such taxes resulting from such increase in the assessment, as the case may
be.
4.5.2 If the Alterations in the Premises, whether installed and/or
paid for by Landlord or Tenant and whether or not affixed to the real property
so as to become a part thereof, are assessed for real property tax purposes at a
valuation higher than the valuation at which tenant improvements conforming to
Landlord's standard tenant improvements in other space in the Building leased to
or offered to lease to other tenants, which improvements are substantially
similar to those in the Premises as of the Lease Commencement Date (the
"BUILDING STANDARD"), are assessed (as reasonably determined by Landlord), then
the Tax Expenses levied against Landlord or the property by reason of such
excess assessed valuation shall be deemed to be taxes levied against personal
property of Tenant and shall be governed by the provisions of SECTION 4.5.1,
above. Landlord shall reciprocally enforce this provision against other tenants
in the Project.
4.6 LANDLORD'S BOOKS AND RECORDS. Subject to Tenant's right to review as
provided in SECTION 4.4.1, Landlord's books and records evidencing Operating
Expenses will be conclusive absent manifest error.
4.7 TENANT'S ELECTRICITY COST. The Premises are currently not separately
metered and, to account for Tenant's electrical use in the Premises, Tenant
shall pay to Landlord as Additional Rent an initial flat monthly fee of Fourteen
Thousand Twenty-six and 26/100 Dollars ($14,026.00), which amount is calculated
based on the rate of One Dollar ($1.00) per year per rentable square foot of the
Premises ("TENANT'S ELECTRICITY COST"), and is subject to adjustment based on
Landlord's reasonable estimate of Tenant's electrical usage based on comparison
of actual invoices and/or check metering. Tenant's Electricity Cost shall
include all electricity used by Tenant for lights, light fixtures and electrical
usage for Tenant's personal property and equipment in the Premises.
4.7.1 Notwithstanding anything to the contrary contained in this
Lease, Landlord shall have the right to separately meter (or install a sub-meter
or check meter for) the Premises and/or for certain systems or equipment in the
Building, at Landlord's sole cost, any time during the Lease Term and thereafter
charge Tenant for its electrical use as measure by such meter(s).
4.7.2 In the event that Landlord, in its sole discretion, installs
meters (direct, submeters or checkmeters) which enable Landlord to measure the
electricity usage for the air handlers and chillers which service the Lab Areas
(as defined in SECTION 6.1.1, below) of the Premises, then, in addition to
Tenant's Electricity Cost, Tenant shall pay to Landlord, as Additional Rent,
seventy percent (70%) of the electrical expenses attributable to the chillers
and air handlers which service the labs within the Premises and such costs shall
thereafter not be included in the calculation of Operating Expenses.
4.8 ADDITIONAL RENT FOR ADDITIONAL PREMISES. Notwithstanding anything to
the contrary contained herein, in addition to all other sums payable pursuant to
this Lease, until such time as this Lease has been terminated with respect to
the Additional Premises and Tenant has
15
vacated the Additional Premises in accordance with the provisions of SECTION
1.1.3, above, Tenant shall pay to Landlord, as Additional Rent, the sum of $4.00
per square foot times the number of square feet of space contained in the
Additional Premises per annum (the "AP RENT"), payable in equal monthly
installments, (along with Tenant's payment of Base Rent and Tenant's Share of
the Estimated Excess for the Premises other than the Additional Premises). In
the event that Landlord, in its sole discretion, installs meters (direct,
submeters or checkmeters) or otherwise reasonably estimates the utility usage
for the Additional Premises then, at Landlord's option, Tenant shall pay to
landlord, in lieu of the AP Rent, the actual cost of utilities utilized in the
Additional Premises.
ARTICLE 5
USE OF PREMISES
5.1 PERMITTED USE. Tenant shall use the Premises solely for the Permitted
Use set forth in SECTION 7 of the Summary, and Tenant shall not use or permit
the Premises or the Project to be used for any other purpose or purposes
whatsoever without the prior written consent of Landlord, which may be withheld
in Landlord's sole discretion.
5.2 PROHIBITED USES. The uses prohibited under this Lease shall include,
without limitation, use of the Premises or a portion thereof for (i) offices of
any agency or bureau of the United States or any commonwealth or state or
political subdivision thereof; (ii) offices or agencies of any foreign
governmental or political subdivision thereof; (iii) offices of any health care
professionals or service organization; (iv) schools or other training facilities
which are not ancillary to corporate, executive or professional office use; (v)
retail or restaurant uses; (vi) commercial broadcast radio or television
stations; (vii) marketing or call center if it would increase the parking
requirements for the Premises beyond the parking spaces allocated pursuant to
Section 9 of the Summary of Basic Lease Information; or (viii) collection
agency. Tenant further covenants and agrees that Tenant shall not use, or suffer
or permit any person or persons to use, the Premises or any part thereof for any
use or purpose contrary to the provisions of the Rules and Regulations (as
defined in Section 5.6, below), or in violation of the laws of the United States
of America, the Commonwealth of
Massachusetts, or the ordinances, regulations or
requirements of the local municipal or county governing body or other lawful
authorities having jurisdiction over the Project) including, without limitation,
any such laws, ordinances, regulations or requirements relating to Hazardous
Materials as defined in SECTION 29.31.1 below. Tenant shall not do or permit
anything to be done in or about the Premises which will in any material way
interfere with the rights of other tenants or occupants of the Building, or use
or allow the Premises to be used for any unlawful purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises.
5.3 CC&Rs. Tenant shall comply with all recorded covenants, conditions,
and restrictions currently affecting the Project to the extent they apply to the
Premises or the Common Areas. Additionally, Tenant acknowledges that the Project
may be subject to any future covenants, conditions, and restrictions (the
"CC&Rs"), to the extent that Landlord, in its reasonable discretion, deems
reasonably necessary or appropriate, and Tenant agrees that this Lease shall be
subject and subordinate to such CC&Rs to the extent they apply to the Premises
or the Common Areas; provided, however, that this Lease shall only be
subordinate to any future
16
CC&Rs if such CC&Rs do not materially interfere with Tenant's use and occupancy
of the Premises and Common Areas.
5.4 CONDITION OF PREMISES. Landlord shall deliver the Premises
(including, but not limited to HVAC (as hereinafter defined), electrical,
plumbing, sewer and other Building systems, and the exterior walls, roof,
parking area, landscaping and walkways) to Tenant on the Lease Commencement Date
and Tenant shall accept the Premises in their "AS IS" condition. Tenant
acknowledges that Tenant, not Landlord was responsible for the construction of
the Project, and Landlord makes no representation or warranty, and specifically
disclaims any representation or warranty concerning the following: (a) whether
the Project was constructed in compliance with all Applicable Laws (as defined
in ARTICLE 24), and whether any written notice of noncompliance with Applicable
Laws concerning the Project was issued by any governmental authorities prior to
the Lease Commencement Date; (b) whether the Project and the Premises are free
of Hazardous Materials (as defined in SECTION 29.31) that are required to be
reported to governmental authorities under Applicable Laws, or which would be in
violation of any Applicable Laws; and (c) whether the Building's electrical,
plumbing, heating and ventilation systems are of a type, design, quality and
capacity as commensurate with Comparable Buildings (as defined in SECTION 6.1),
and whether they are in good working condition and repair as of the Lease
Commencement Date. Other than as expressly set forth in this Lease, Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Premises or with respect to the
present or future suitability of any part of the Premises for the conduct of
Tenant's business or the uses proposed by Tenant. Tenant hereby accepts the
Premises, the Building, and all improvements thereon, in their existing
condition, subject to all applicable zoning, municipal, county and state
(commonwealth) laws, ordinances and regulations governing and regulating the use
of the Premises, and any covenants or restrictions of record, and accepts this
Lease subject to all of the foregoing and to all matters disclosed in this
Lease. Notwithstanding the foregoing, Landlord shall be responsible for
repairing or replacing, as necessary, any latent or other defect or change of
condition in the Premises or the Project which materially and adversely affects
Tenant's use or occupancy of the Premises; provided, however, the Rent hereunder
shall in no case be withheld or diminished because of any such latent or other
defect, any change in the condition thereof or the existence with respect
thereto of any violations of Applicable Laws. Tenant shall have no right to any
abatement of Rent except as expressly provided in SECTIONS 6.3, 11.1 and 13.1.
5.5 DEMISING PLAN. The Premises are shown on the space plan attached
hereto as EXHIBIT A and hereby made a part hereof. Tenant shall pay its costs
associated with the installation of Tenant's network and other cabling,
telecommunications infrastructure, and all of its moving costs incurred in
connection with Tenant's occupancy of the Premises. Within sixty (60) days after
the Lease Commencement Date, subject to force majeure, Landlord, at its sole
cost, shall demise the Premises by constructing: (A) a secure doorway between
the Premises and the access provided by Landlord under Section 1.1(i), above,
and (B) a secure doorway between the Building 2 loading dock area shown on
EXHIBIT A (the "LOADING DOCK") and the Premises, together with card key access
controls for both of the foregoing doorways integrated with the existing,
Project-wide card key access system (such work, collectively, the "DEMISING
WORK"). Attached hereto as EXHIBIT A-1 is a plan for the Building 2 Loading Dock
area, which indicates an existing caged holding area which shall be deemed to be
part of the Premises (but shall not be counted as useable square footage for the
purposes of calculating the number of rentable square
17
feet in the Premises) and available for Tenant's exclusive use; Tenant shall pay
all costs associated with the demising and securing of said holding area. The
use of the Loading Dock by Tenant and other occupants or tenants of the Project
shall be subject to the Rules and Regulations (as defined in Section 5.6, below)
respecting the use of the Loading Dock. Within sixty (60) days after the Lease
Commencement Date, or such longer time as shall be reasonably required by
Landlord (not to exceed six months after the Commencement Date), Landlord shall
remove the energy management equipment for the Project located within the
Premises and relocate the same outside the Premises, at Landlord's sole cost.
5.6 RULES AND REGULATIONS. Tenant shall comply with Landlord's rules and
regulations respecting the management, care, use and safety of the Premises,
Building and Project, including without limitation, parking areas, landscaped
areas, walkways, elevators, loading docks, hallways and other Common Areas and
facilities provided for the common use and convenience of tenants. Such rules
and regulations are attached hereto as EXHIBIT D and may be amended from time to
time at Landlord's reasonable discretion, upon written notice to Tenant (as
amended from time to time, the "RULES AND REGULATIONS"). Landlord agrees that
any enforcement of the Rules and Regulations shall be done in a reasonable,
uniform and non-discriminatory manner.
ARTICLE 6
SERVICES AND UTILITIES
6.1 STANDARD TENANT SERVICES. Landlord shall maintain and operate the
Building in a manner consistent with other Comparable Buildings (as defined
below), and provide ingress and egress control services to the Building in a
first-class manner consistent with the Comparable Buildings, shall keep the
Building Structure and Building Systems in first-class condition and repair
consistent with the Comparable Buildings, and all of such expenses shall be
included in Operating Expenses. (As used in this Lease, the term "COMPARABLE
BUILDINGS" means buildings which are comparable to the Building in terms of age,
quality of construction, level of service and amenities, size and appearance and
located in a comparable geographical area, as reasonably determined by
Landlord.) During the Lease Term, Landlord shall provide the following services:
6.1.1 Subject to limitations imposed by all governmental rules,
regulations guidelines applicable thereto, (a) from Monday through Friday from 8
a.m. to 6 p.m. (but excluding Holidays, as defined below) (such dates and times
herein called "BUILDING HOURS"), Landlord shall provide heating and air
conditioning ("HVAC") to the office portion of the Premises, and (b) subject to
the provisions of SECTIONS 4.7.2 AND 7.1, Landlord shall provide continuous HVAC
to the "LAB AREAS" designated on EXHIBIT A. Tenant may request and Landlord
shall provide HVAC service at times other than during Building Hours at the rate
of $50.00 per hour, with a minimum charge of $100.00; provided, however, that
Tenant shall only be charged for after hours HVAC actually requested by Tenant.
Landlord reserves the right reasonably to increase the cost for after hours air
conditioning in accordance with increases in Comparable Buildings, not to exceed
the increase in actual costs, including, without limitation, utility costs and
depreciation for equipment.
18
6.1.2 Landlord shall provide city water from the regular Building
outlets for drinking, lavatory and toilet purposes in the Common Areas within
the Building.
6.1.3 On weekdays during the Lease Term, Landlord shall provide
janitorial services to the Premises, except the date of observation of the
Holidays, in and about the Premises and window washing services in a manner
consistent with Comparable Buildings.
6.1.4 Landlord shall provide nonexclusive, non-attended automatic
passenger elevator service for all elevators in the Building during Building
Hours and, subject to closures for routine maintenance or repair, shall have one
(1) elevator available at all other times to provide service to the Premises;
provided, however, Landlord shall use reasonable efforts to schedule the timing
of such routine maintenance or repair, and shall otherwise use commercially
reasonable efforts to minimize any interference with Tenant's Permitted Use and
enjoyment of the Premises.
6.1.5 Landlord shall provide electricity for lights and electrical
outlets within the Premises, subject to Tenant's obligation to pay Tenant's
Electricity Charge.
For the purposes of this Lease the term "HOLIDAY" shall mean and refer to
New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, day
after Thanksgiving Day and Christmas Day.
6.2 REQUIREMENTS OF TENANT. At all times during the Lease Term, Tenant
shall cooperate with Landlord and abide by all regulations and requirements that
Landlord may reasonably prescribe and provide to Tenant in writing for the
proper functioning and protection of the Building HVAC, electrical, mechanical
and plumbing systems.
6.3 INTERRUPTION OF USE. Except as expressly provided herein, Tenant
agrees that Landlord shall not be liable for damages, by abatement of Rent or
otherwise, for failure to furnish or delay in furnishing any service (including
telephone and telecommunication services), or for any diminution in the quality
or quantity thereof, when such failure or delay or diminution is occasioned, in
whole or in part, by breakage, repairs, replacements, or improvements, by any
strike, lockout or other labor trouble, by inability to secure electricity, gas,
water, or other fuel at the Building or Project after reasonable effort to do
so, by any riot or other dangerous condition, emergency, accident or casualty
whatsoever, by act or default of Tenant or other parties, or by any other cause;
and such failures or delays or diminution shall never be deemed to constitute an
eviction or disturbance of Tenant's use and possession of the Premises or
relieve Tenant from paying Rent or performing any of its obligations under this
Lease. Furthermore, Landlord shall not be liable under any circumstances for a
loss of, or injury to, property or for injury to, or interference with, Tenant's
business, including, without limitation, loss of profits, however occurring,
through or in connection with or incidental to a failure to furnish any of the
services or utilities as set forth in this ARTICLE 6. Landlord may comply with
voluntary controls or guidelines promulgated by any governmental entity relating
to the use or conservation of energy, water, gas, light or electricity or the
reduction of automobile or other emissions without creating any liability of
Landlord to Tenant under this Lease, provided that (i) the Premises are not
thereby rendered untenantable, and (ii) the same does not materially adversely
interfere with Tenant's Permitted Use of the Premises. Notwithstanding the
foregoing, in the event any utility services or other
19
services provided to or appurtenant to the Premises are interrupted for a period
of more than three (3) consecutive business days, and such interruption (a)
prevents Tenant from operating in the Premises for its Permitted Use, and (b) is
caused solely by the negligent act or omission or willful misconduct of
Landlord, its employees, agents and contractors with respect to any facilities
or equipment located on the Project and used in providing such utilities to the
Premises, then Tenant shall be entitled to an abatement of Rent for each day
such interruption continues beyond the initial period of three (3) consecutive
business days.
ARTICLE 7
REPAIRS
7.1 LANDLORD'S OBLIGATIONS. Landlord shall maintain, repair and replace
as necessary the structural portions of the Building, including the foundation,
floor/ceiling slabs, roof structure, exterior walls, columns, beams and shafts
(including elevator shafts) (collectively, "BUILDING STRUCTURE") at its sole
cost and expense. Landlord shall also maintain, repair and replace as necessary
the parking areas, sidewalks and access roads (including snow and ice removal),
landscaping, fountains, water falls, exterior Project signage, exterior glass
and mullions, stairs and stairwells, elevator cabs and equipment, plazas, art
work, sculptures, men's and women's washrooms, Building mechanical, electrical
and telephone closets, and all common and public areas and the Building
security, mechanical, electrical, life safety, plumbing, sprinkler systems and
HVAC systems (collectively, the "BUILDING SYSTEMS") and all other Common Areas
within the Project, and the cost of such maintenance and repair shall be
included in Operating Expenses. In addition, as requested by Tenant and as
Landlord reasonably deems necessary, Landlord shall maintain, repair and replace
all damaged, broken, or worn fixtures, floor covering, mechanical and electrical
systems and appurtenances (including without limitation light fixtures, light
bulbs and fans) within the Premises (subject to the provisions of ARTICLE 27
regarding Landlord's access to the Premises), excepting any Alterations (as
defined in ARTICLE 8) or personal property within the Premises, and excluding
damage caused by Tenant (other than ordinary wear and tear and damage covered by
insurance, to the extent of such coverage) and shall include the costs thereof
in Operating Expenses. Landlord shall undertake reasonable efforts to perform
all maintenance, repairs and replacements pursuant to this SECTION 7.1 promptly
after Landlord learns of the need for such maintenance, repairs and
replacements, but in any event within thirty (30) days after Tenant provides
written notice to Landlord of the need for such maintenance, repairs and
replacements; provided, however, that in cases of "EMERGENCY" (i.e.,
circumstances which, if not addressed promptly, could result in material damage
to persons and property, and/or damage or destruction to or of a structural
component or any electrical, plumbing, mechanical or telecommunications systems
in or providing service to the Building which materially impairs Tenant's
ability to utilize the Premises as intended for more than 24 consecutive hours
or more than 24 hours within any five (5) day period), Landlord shall perform
any maintenance, repairs and replacements as soon as reasonably practicable
after it learns of the need for such maintenance, repairs and replacements.
Notwithstanding anything herein to the contrary, Tenant shall reimburse
Landlord as Additional Rent, within thirty (30) days after receipt of Landlord's
invoice, for seventy percent (70%) of all costs paid to third parties associated
with the repair, maintenance and replacement of the air handlers and chillers
which service the Lab Areas (as defined in SECTION 6.1.1, above)
20
of the Premises and such costs shall thereafter not be included in the
calculation of Operating Expenses. Notwithstanding the foregoing, with respect
to all costs for replacements of the air handlers and chillers (or components
thereof) which service the Lab Area that are capital in nature under generally
accepted accounting principles, at Tenant's option, to be exercised within
thirty days after receipt of Landlord's first invoice for such costs, in lieu of
reimbursing Landlord within thirty days, such costs shall be amortized (with
interest at ten percent (10%) per annum) over the lesser of (i) the remaining
Term of the Lease, or (ii) the useful life of the item being replaced, and
Tenant shall pay Landlord, as Additional Rent, on a monthly basis, the amortized
portion and interest applicable thereto.
In the event that Tenant is dissatisfied with the quality or cost of
repairs, maintenance and/or replacement of the air handlers and chillers which
service the Lab Areas, then upon thirty (30) days advance written notice to
Landlord, Tenant may elect to repair, maintain and replace said air handlers and
chillers, in which case, Tenant shall provide Landlord with a copy of any
maintenance contract(s), and all invoices, receipts, statements, guaranties and
warranties for such repair, maintenance or replacement, and Landlord shall
reimburse Tenant, within thirty (30) days after receipt of Tenant's invoice for
thirty percent (30%) of all costs paid to third parties associated with the
repair, maintenance and replacement of said air handlers and chillers, provided
that the cost to Landlord shall in no event exceed the amount which would have
been payable by Landlord if Landlord had retained responsibility for such work.
7.2 TENANT'S OBLIGATIONS. Notwithstanding anything in this Lease to the
contrary, Tenant shall be required to repair any damage to the Building
Structure and/or the Building Systems to the extent caused due to Tenant's use
of the Premises for other than its Permitted Use, unless and to the extent such
damage is covered by insurance carried by Landlord pursuant to ARTICLE 10 and to
which the waiver of subrogation is applicable. Tenant shall, at Tenant's own
expense, pursuant to the TCCs of this Lease, including without limitation
ARTICLE 8 hereof, maintain the Furniture and all Alterations and other personal
property of Tenant within the Premises in good order, repair and condition at
all times during the Lease Term. Tenant hereby waives any and all rights to
terminate this Lease, complete repairs, and offset the rent as may be provided
under the laws of the Commonwealth of
Massachusetts, now or hereafter in effect.
ARTICLE 8
ADDITIONS AND ALTERATIONS
8.1 LANDLORD'S CONSENT TO ALTERATIONS. Tenant may not make any
improvements, alterations, additions or changes to the Premises or any
mechanical, plumbing or HVAC facilities or systems pertaining to the Premises
which affect the Building Structure, Building Systems or exterior appearance of
the Building (collectively, the "ALTERATIONS") without first procuring the prior
written consent of Landlord to such Alterations, which consent shall be
requested by Tenant not less than ten (10) days prior to the commencement
thereof, and which consent shall not be unreasonably withheld, conditioned or
delayed by Landlord, provided it shall be deemed reasonable for Landlord to
withhold its consent to any Alteration which materially or adversely affects the
Building Structure, Building Systems or exterior appearance of the Building.
Tenant shall have the right to make interior modifications to the Premises
without Landlord's consent provided that such alterations do not materially or
adversely affect
21
the mechanical, electrical, plumbing or structural systems in the Building, and
provided further that Tenant shall give Landlord notice of such modifications at
least ten (10) days prior to the commencement of such modifications.
Notwithstanding the foregoing, Landlord's consent shall not be required, and
Tenant shall be deemed to have provided notice to Landlord, of the following
Alterations: (a) installation in the Premises of the personal property removed
from Building 1 pursuant to SECTION 1.1.1; (b) changes in the card key security
system as provided in SECTION 1.5 provided that (i) ten days advance written
notice is provided to Landlord together with a detailed description of the work
to be done and (ii) such work does not adversely affect the Project-wide card
key security system; and (c) installation of and upgrades to communications and
electrical equipment connecting the Premises to the Conference Facilities
provided that (i) ten days advance written notice is provided to Landlord
together with a detailed description, and plans and specifications if
applicable, of the work to be done; (ii) such work does not adversely affect the
use of the Conference Facilities or any other Common Area by Landlord and/or
other occupants of the Project; (iii) the Conference Facilities are Common Areas
at the time said work is done.
8.2 MANNER OF CONSTRUCTION. Tenant shall utilize only competent
contractors, subcontractors, materials, mechanics and materialmen reasonably
approved by Landlord for the construction of any Alterations, which approval
shall not be unreasonably withheld, conditioned or delayed; provided, however,
that Tenant shall be entitled to use its employees to make Alterations which do
not affect the mechanical or structural portions of the Premises or the Building
Structure so long as Tenant complies with all other provisions of this ARTICLE
8. Upon Landlord's request (unless Landlord waived, at the time of Landlord's
approval of any Alterations pursuant to the provisions of SECTION 8.5, below,
its right to make such request), Tenant shall, at Tenant's expense, remove such
Alterations upon the expiration or any early termination of the Lease. If such
Alterations will involve the use of or disturb Hazardous Materials or substances
existing in the Premises, Tenant shall comply with Landlord's rules and
regulations concerning, and all Applicable Laws pertaining to, Hazardous
Materials or substances with respect to such Alterations. Tenant shall construct
such Alterations and perform such repairs in a good and workmanlike manner, in
conformance with any and all applicable federal, commonwealth, county or
municipal laws, rules and regulations and pursuant to a valid building permit,
issued by the City of Marlborough, and in conformance with Landlord's
construction rules and regulations, if any, provided to Tenant in writing prior
to construction of such Alterations. In the event Tenant performs any
Alterations in the Premises which require or give rise to governmentally
required changes to the "Base Building," as that term is defined below, then
Landlord shall, at Tenant's expense, make such changes to the Base Building. The
"BASE BUILDING" shall include the Building Structure, and the public restrooms
and the systems and equipment located in the internal core of the Building on
the floor or floors on which the Premises are located. In performing the work of
any such Alterations, Tenant shall have the work performed in such manner so as
not to obstruct access to the Project or any portion thereof, by any other
tenant of the Project, and so as not to obstruct the business of Landlord or
other tenants in the Project. Tenant shall not use (and promptly after notice
from Landlord shall cease using) contractors, services, workmen, labor,
materials or equipment that, in Landlord's reasonable judgment, would disturb
labor harmony with the workforce or trades engaged in performing other work,
labor or services in or about the Building or the Common Areas. In addition to
Tenant's obligations under ARTICLE 9 of this Lease, upon completion of any
Alterations which affect the Building Systems and Building Structures, Tenant
agrees to cause
22
such notices as may be necessary to evidence completion of any work undertaken
by Tenant to be recorded in the office of the Recorder of the County of
Middlesex in accordance with the laws of the Commonwealth of
Massachusetts or
any successor statute, and Tenant shall deliver to the Project management office
a reproducible copy of the "as built" drawings of the Alterations as well as all
permits, approvals and other documents issued by any governmental agency in
connection with the Alterations.
8.3 PAYMENT FOR IMPROVEMENTS. If payment is made directly to contractors,
Tenant shall comply with all Applicable Laws relating to final lien releases and
waivers in connection with Tenant's payment for work to contractors. Whether or
not Tenant orders any work directly from Landlord, Tenant shall reimburse
Landlord for Landlord's reasonable out-of-pocket costs and expenses reasonably
incurred in connection with Landlord's review of any Alterations, not to exceed
One Thousand Dollars ($1,000).
8.4 CONSTRUCTION INSURANCE. In addition to the requirements of ARTICLE 10
of this Lease, in the event that Tenant makes any Alterations, prior to the
commencement of such Alterations, Tenant shall provide Landlord with evidence
that Tenant carries "BUILDER'S ALL RISK" insurance in an amount reasonably
related to the value of such Alterations, it being understood and agreed that
all of such Alterations shall be insured by Tenant pursuant to ARTICLE 10 of
this Lease immediately upon completion thereof.
8.5 LANDLORD'S PROPERTY. All Alterations, improvements, fixtures,
equipment and/or appurtenances other than Tenant's trade fixtures and equipment
which may be installed or placed in or about the Premises, from time to time,
shall be and become the property of Landlord upon the expiration of this Lease,
subject to the requirements of SECTION 8.2 and Landlord's right to require
Tenant to remove such items as provided in this SECTION 8.5. Upon the expiration
or earlier termination of this Lease, Tenant may remove any equipment or
fixtures installed by Tenant, provided Tenant repairs any damage to the Premises
and Building caused by such removal and returns the affected portion of the
Premises to Building Standard condition. Furthermore, Landlord may, by written
notice to Tenant prior to the end of the Lease Term, or given following any
earlier termination of this Lease, require Tenant, at Tenant's expense, to
remove any Alterations in the Premises and to repair any damage to the Premises
and Building caused by such removal (reasonable wear and tear excepted) and
return the affected portion of the Premises to Building Standard condition;
provided, however, if, in connection with its request for Landlord's approval
for particular Alterations, (1) Tenant requests Landlord's decision with regard
to the removal of such Alterations, and (2) Landlord thereafter agrees in
writing to waive the removal requirement when approving such Alterations, then
Tenant shall not be required to so remove such Alterations; provided further,
however, that if Tenant requests such a determination from Landlord and
Landlord, in its approval of any Alterations, fails to address the removal
requirement with regard to such Alterations, Landlord shall be deemed to have
agreed to waive the removal requirement with regard to such Alterations. If
Tenant fails to complete such removal and/or to repair any damage caused by the
removal of any Alterations in the Premises and return the affected portion of
the Premises to Building Standard condition, then, after written notice and a
reasonable period in which to complete such removal and repairs, Landlord may do
so and may charge the cost thereof to Tenant, and Tenant shall reimburse
Landlord for such costs within ten (10) days after receipt of Landlord's invoice
therefore. Tenant hereby protects, defends, indemnifies and holds Landlord
harmless from any liability,
23
cost, obligation, expense or claim of lien in any manner relating to the
Tenant's installation, placement, removal or financing of any such Alterations,
improvements, fixtures and/or equipment in, on or about the Premises, which
obligations of Tenant shall survive the expiration or earlier termination of
this Lease for one (1) year following such expiration or earlier termination. At
all times during the Term of this Lease, Tenant shall be entitled to remove, and
Landlord shall have no interest in, Tenant's trade fixtures, equipment and other
personal property in the Premises.
ARTICLE 9
COVENANT AGAINST LIENS
Tenant shall keep the Project and Premises free from any liens or
encumbrances arising out of the work performed, materials furnished or
obligations incurred by or on behalf of Tenant, and shall protect, defend,
indemnify and hold Landlord harmless from and against any claims, liabilities,
judgments or costs (including, without limitation, reasonable attorneys' fees
and costs) arising out of same or in connection therewith. Tenant shall give
Landlord notice at least ten (10) business days prior to the commencement of any
such work on the Premises (or such additional time as may be necessary under
Applicable Laws) to afford Landlord the opportunity of posting and recording
appropriate notices of non-responsibility. Tenant shall remove any such lien or
encumbrance by bond or otherwise within ten (10) business days after notice by
Landlord, and if Tenant shall fail to do so, Landlord may pay the amount
necessary to remove such lien or encumbrance, without being responsible for
investigating the validity thereof. The amount so paid shall be deemed
Additional Rent under this Lease payable upon demand, without limitation as to
other remedies available to Landlord under this Lease. Nothing contained in this
Lease shall authorize Tenant to do any act which shall subject Landlord's title
to the Building or Premises to any liens or encumbrances whether claimed by
operation of law or express or implied contract.
ARTICLE 10
INSURANCE
10.1 INDEMNIFICATION AND WAIVER. Tenant hereby assumes all risk of damage
to property or injury to persons in, upon or about the Premises from any cause
whatsoever and agrees that Landlord, its partners, subpartners and their
respective officers, agents, servants, employees, and independent contractors
(collectively, "LANDLORD PARTIES") shall not be liable for, and are hereby
released from any responsibility for, any damage either to person or property or
resulting from the loss of use thereof, which damage is sustained by Tenant or
by other persons claiming through Tenant, except to the extent such damage
results from the negligent acts or omissions or willful misconduct of Landlord,
its agents, employees and contractors or from Landlord's failure to perform its
obligations under this Lease, and in such event, only to the extent not covered
by Tenant's insurance required to be carried hereunder. Tenant shall indemnify,
defend, protect, and hold harmless the Landlord Parties from any and all loss,
cost, damage, expense and liability (including without limitation court costs
and reasonable attorneys' fees) incurred in connection with or arising from any
cause in the Premises, and to the extent arising from the negligent act or
omission of Tenant or of any person claiming by, through or
24
under Tenant, or of the contractors, agents, servants, employees, invitees,
guests or licensees of Tenant or any such person, in, on or about the Project,
either prior to, during, or after the expiration or earlier termination of the
Lease, except to the extent such damage results from the negligent acts or
omissions or willful misconduct of Landlord, its agents, employees and
contractors or from Landlord's failure to perform its obligations under this
Lease, and in such event, only to the extent not covered by Landlord's insurance
required to be carried hereunder. Landlord shall indemnify, defend, protect, and
hold harmless Tenant and its officers, agents, employees and contractors from
any and all loss, cost damage, expense and liability (including without
limitation court costs and reasonable attorneys' fees) to the extent arising
from the negligent acts or omissions or willful misconduct of Landlord, its
agents, employees and contractors in, on or about the Project, either prior to,
during, or after the expiration or earlier termination of the Lease except to
the extent such damage results from the negligent acts or omissions or willful
misconduct of Tenant, its agents, employees and contractors or from Tenant's
failure to perform its obligations under this Lease, and in such event, only to
the extent not covered by Landlord's insurance required to be carried hereunder.
Further, Landlord's and Tenant's agreements to indemnify pursuant to this
SECTION 10.1 are not intended and shall not relieve any insurance carrier of its
obligations, to the extent such policies cover the matters subject to the
foregoing indemnification obligations; nor shall they supersede any inconsistent
agreement of the parties set forth in any other provision of this Lease. The
provisions of this SECTION 10.1 shall survive the expiration or sooner
termination of this Lease with respect to any claims or liability arising in
connection with any event occurring prior to such expiration or termination.
10.2 TENANT'S COMPLIANCE WITH LANDLORD'S FIRE AND CASUALTY INSURANCE.
Tenant shall, at Tenant's expense, comply with all insurance company
requirements pertaining to the use of the Premises to the extent such
requirements are provided by Landlord to Tenant in writing. If Tenant's conduct
or use of the Premises causes any increase in the premium for such insurance
policies then Tenant shall reimburse Landlord for any such increase within
fifteen (15) business days after receipt of Landlord's written demand; provided,
however, that Landlord shall provide reasonably sufficient documentation or
other evidence to Tenant that its use and occupancy of the Premises caused such
increase in connection with any demand for payment. Tenant, at Tenant's expense,
shall comply with all rules, orders, regulations or requirements of the American
Insurance Association (formerly the National Board of Fire Underwriters) and
with any similar body.
10.3 TENANT'S INSURANCE. Tenant shall maintain the following coverages in
the following amounts.
10.3.1 Commercial General Liability Insurance covering the insured
against claims of bodily injury, personal injury and property damage (including
loss of use thereof) arising out of Tenant's operations, and contractual
liabilities (covering the performance by Tenant of its indemnity agreements)
including the equivalent of the coverage provided by a Broad Form endorsement
covering the insuring provisions of this Lease and the performance by Tenant of
the indemnity agreements set forth in SECTION 10.1 of this Lease, for limits of
liability not less than:
25
Bodily Injury and $5,000,000 each occurrence
Property Damage Liability $5,000,000 annual aggregate
Personal Injury Liability $5,000,000 each occurrence
$5,000,000 annual aggregate
10.3.2 Physical Damage Insurance covering any Alterations made to
the Premises in accordance with ARTICLE 8 of this Lease and property insurance
covering the Furniture and Tenant's personal property, trade fixtures and
equipment in the Premises at 100% replacement cost. Such insurance shall be
written on an "all risks" of physical loss or damage basis, for the full
replacement cost value (subject to reasonable deductible amounts) new without
deduction for depreciation of the covered items and in amounts that meet any
co-insurance clauses of the policies of insurance and shall include coverage for
damage or other loss caused by fire or other peril including, but not limited
to, vandalism and malicious mischief, theft, water damage of any type, including
sprinkler leakage, bursting or stoppage of pipes, and explosion.
10.3.3 Worker's Compensation and Employer's Liability or other
similar insurance pursuant to all applicable commonwealth, state and local
statutes and regulations.
10.4 FORM OF POLICIES. The minimum limits of policies of insurance
required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease. Tenant's liability insurance shall (i) name Landlord,
Landlord's lender and Landlord's managing agent, if any, as an additional
insured; (ii) specifically cover the liability assumed by Tenant under this
Lease, including, but not limited to, Tenant's obligations under SECTION 10.1 of
this Lease; (iii) be issued by an insurance company having a rating of not less
than A-VII in Best's Insurance Guide and licensed to do business in the
Commonwealth of
Massachusetts; (iv) be primary insurance as to all claims
thereunder and provide that any insurance carried by Landlord is excess and is
non-contributing with any insurance requirement of Tenant; and (v) provide that
Tenant's insurance carrier shall endeavor to give Landlord ten days' written
notice prior to such insurance being canceled or coverage reduced. Tenant shall
deliver evidence of such coverage to Landlord on or before the Lease
Commencement Date and at the time of any renewal thereof. In the event Tenant
shall fail to procure such insurance, or to deliver such evidence, including a
certificate of insurance, Landlord may, at its option, if Tenant fails to
provide evidence of such insurance within five (5) business days after notice
from Landlord, procure such policies for the account of Tenant, and the cost
thereof shall be paid to Landlord within five (5) business days after delivery
to Tenant of bills therefor.
10.5 SUBROGATION. Landlord and Tenant shall cause their insurers to waive
all rights of subrogation in their respective insurance policies during the
Lease Term. The parties agree that their respective insurance policies, which
include a waiver of subrogation provision, shall not affect the right of the
insured to recover thereunder, and no additional premium is charged therefor.
10.6 LANDLORD'S INSURANCE. Landlord shall insure the Building (including
the Building Structure and Building Systems), the Furniture and the Project
during the Lease Term against loss or damage due to fire and other casualties
covered within the classification of fire and extended coverage at the full
replacement cost of the Buildings and other improvements which
26
constitute the Project (excluding footings and foundations). Such coverage shall
be in such amounts, from such companies, and on such other terms and conditions,
as Landlord may from time to time reasonably determine, consistent with the
practices of landlords of Comparable Buildings, with a deductible not to exceed
$100,000 per occurrence. Additionally, at the sole option of Landlord, such
insurance coverage may include the risk of flood damage and additional hazards,
a rental loss endorsement and one or more loss payee endorsements in favor of
the holders of any mortgages or deeds of trust encumbering the interest of
Landlord in the Building or the ground or underlying lessors of the Building, or
any portion thereof. Landlord shall maintain a Commercial General Liability
Insurance policy covering the insured against claims of bodily injury and
personal injury, for limits of liability not initially less than $5,000,000 each
occurrence and $5,000,000 annual aggregate for each of bodily injury and
personal injury.
ARTICLE 11
DAMAGE AND DESTRUCTION
11.1 REPAIR OF DAMAGE BY LANDLORD. Tenant shall promptly notify Landlord
of any damage to, or affecting, the Premises resulting from fire or any other
casualty. If the Premises, the Building or any Common Areas serving or providing
access to the Premises shall be damaged by fire or other casualty, Landlord
shall promptly and diligently, subject to reasonable delays for insurance
adjustment or other delays due to Force Majeure, and subject to all other TCCs
of this ARTICLE 11, restore the Premises, the Building and such Common Areas.
Such restoration shall be to substantially the same condition as existed prior
to the casualty, except for modifications required by zoning and building codes
and other laws, provided that access to the Premises and any common restrooms
serving the Premises and Tenant's use of the Premises shall not be materially
impaired. Within sixty (60) days after the occurrence of such fire or other
casualty, Landlord shall provide Tenant with a statement setting forth the time
within which Landlord expects such restoration to be substantially completed.
Upon the occurrence of any damage to the Furniture, Landlord shall replace the
Furniture to the extent of such insurance proceeds or, if this Lease is
terminated as a result of such casualty, Landlord shall retain such proceeds.
Upon notice to Tenant from Landlord, and provided this Lease has not terminated
as provided in this ARTICLE 11, Tenant shall proceed to restore and repair any
injury or damage to any Alterations which have been completed or installed by or
on behalf of Tenant in the Premises after the Lease Commencement Date and which
will be retained by Landlord upon the expiration or earlier termination of this
Lease. Tenant shall restore such Alterations to substantially the same condition
as existed immediately prior to the casualty, but Tenant shall otherwise have no
obligation to restore any other Alterations, equipment or trade fixtures within
the Premises. Prior to the commencement of any restoration work in the Premises,
Tenant shall submit to Landlord, for Landlord's review and approval, all plans,
specifications and working drawings relating thereto, and Landlord shall approve
such plans and specifications and Tenant's contractors to be used for such work
pursuant to the provisions of ARTICLE 8. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or its visitors, or injury to Tenant's
business resulting in any way from such damage or the repair thereof; provided
however, that if such fire or other casualty shall have damaged the Premises or
Common Areas necessary to Tenant's occupancy, Landlord shall allow Tenant a
proportionate abatement of Rent to the extent Tenant is unable to operate its
business in the Premises (measured by the proportion of square feet of the
Premises in which Tenant is unable to operate as compared to the total size of
the
27
Premises, and continuing until such time as such areas are restored
substantially to their condition prior to the casualty), regardless of whether
Landlord is reimbursed from the proceeds of rental interruption insurance
purchased or required to be purchased by Landlord as part of Operating Expenses,
during the time and to the extent the Premises are unfit for occupancy for the
purposes permitted under this Lease, and not occupied by Tenant as a result
thereof; provided, further, however, that if the damage or destruction is due to
the negligence or intentional misconduct of Tenant, Tenant shall be responsible
for any reasonable, applicable insurance deductible (which shall be payable to
Landlord upon demand).
11.2 LANDLORD'S OPTION TO REPAIR. Notwithstanding the TCCs of SECTION 11.1
of this Lease, Landlord may elect not to rebuild and/or restore the Premises,
Building and/or Project, and instead terminate this Lease (or the applicable
portion thereof), by notifying Tenant in writing of such termination within
sixty (60) days after the date of discovery of the damage, such notice to
include a termination date giving Tenant sixty (60) days to vacate the Premises,
but Landlord may so elect only if the Building or Project shall be damaged by
fire or other casualty or cause, if one or more of the following conditions is
present: (i) in Landlord's reasonable judgment, repairs cannot reasonably be
completed within twelve (12) after the date of discovery of the damage (when
such repairs are made without the payment of overtime or other premiums)
(provided, however, if the repair of Building 2 can be completed within twelve
months, Landlord may not terminate this Lease merely because the repair of other
portions of the Project cannot be completed within said period) ; (ii) the
damage is not fully covered by Landlord's insurance policies (except with regard
to any applicable deductibles); (iii) the damage occurs during the last twelve
(12) months of the Lease Term; or (iv) Landlord's mortgagee does not permit the
insurance proceeds to be applied to the rebuilding or repair of the Building or
Project. If Landlord delivers a termination notice based on the insufficiency of
Landlord's insurance proceeds, Landlord shall provide documentation for the
shortfall in insurance proceeds as compared to Landlord's repair estimates, and
Tenant shall be entitled, at its sole discretion, to void Landlord's termination
notice by agreeing to pay the excess repair and restoration expenses by
providing written notice of such election within thirty (30) days after receipt
of Landlord's termination notice. If Landlord does not elect to terminate this
Lease pursuant to Landlord's termination right as provided above, and if the
repairs to be made by Landlord are not actually completed within twelve (12)
months after the date of discovery of the damage, which period may be extended
up to two (2) additional months for Force Majeure delays and/or delays in
insurance adjustment as reasonably demonstrated by Landlord to Tenant), Tenant
shall have the right to terminate this Lease by providing written notice to
Landlord (the "DAMAGE TERMINATION NOTICE"), such termination to be effective
five (5) business days after Landlord's receipt of the Damage Termination Notice
(the "DAMAGE TERMINATION DATE"); provided, however, that Landlord shall have the
right to suspend the occurrence of the Damage Termination Date for a period of
thirty (30) days after the Damage Termination Date by delivering to Tenant, on
or before the Damage Termination Date, a certificate of Landlord's contractor
responsible for the repair of the damage certifying that it is such contractor's
good faith judgment that the repairs to be made by Landlord shall be completed
within thirty (30) days after the Damage Termination Date. If such repairs shall
be completed prior to the expiration of such thirty-day period, then the Damage
Termination Notice shall be of no force or effect, but if such repairs shall not
be completed within such thirty (30) day period, then this Lease shall terminate
upon the expiration of such thirty (30) day period.
28
11.3 TENANT'S OPTION TO TERMINATE. In the event that the damage or
destruction to the Premises from fire or other casualty either (i) will, in
Landlord's reasonable judgment take more than twelve months to repair, or (ii)
takes place during the last twelve months of the Lease Term and such damage
cannot reasonably be repaired within ninety (90) days after the date of such
damage, Tenant shall have the option, to be exercised by written notice given to
Landlord within twenty (20) days after the date of the damage, to terminate this
Lease effective as of the date of said notice or such later date as shall be
specified in Tenant's notice of termination.
11.4 WAIVER OF STATUTORY PROVISIONS. The provisions of this Lease,
including this ARTICLE 11, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any part
of the Premises, the Building or the Project, and any statute or regulation of
the Commonwealth of
Massachusetts, with respect to any rights or obligations
concerning damage or destruction in the absence of an express agreement between
the parties, and any other statute or regulation, now or hereafter in effect,
shall have no application to this Lease or any damage or destruction to all or
any part of the Premises, the Building or the Project.
ARTICLE 12
NON-WAIVER
No provision of this Lease shall be deemed waived by either party hereto
unless expressly waived in a writing signed thereby. The waiver by either party
hereto of any breach of any term, covenant or condition herein contained shall
not be deemed to be a waiver of any subsequent breach of same or any other term,
covenant or condition herein contained. The subsequent acceptance of Rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular Rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
Rent. No acceptance of a lesser amount than the Rent herein stipulated shall be
deemed a waiver of Landlord's right to receive the full amount due, nor shall
any endorsement or statement on any check or payment or any letter accompanying
such 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 full amount due. No receipt of monies by Landlord from Tenant after the
termination of this Lease shall in any way alter the length of the Lease Term or
of Tenant's right of possession hereunder, or after the giving of any notice
shall reinstate, continue or extend the Lease Term or affect any notice given
Tenant prior to the receipt of such monies, it being agreed that after the
service of notice or the commencement of a suit, or after final judgment for
possession of the Premises, Landlord may receive and collect any Rent due, and
the payment of said Rent shall not waive or affect said notice, suit or
judgment.
ARTICLE 13
CONDEMNATION
13.1 CONDEMNATION. If the whole or any part of the Premises, Building or
Project shall be taken by power of eminent domain or condemned by any competent
authority for any public
29
or quasi-public use or purpose, or if any adjacent property or street shall be
so taken or condemned, or reconfigured or vacated by such authority in such
manner as to require the use, reconstruction or remodeling of any part of the
Premises, Building or Project, and if as a result thereof Tenant cannot conduct
its business operations in substantially the same manner such business
operations were conducted prior to such taking while still retaining
substantially the same material rights and benefits it bargained to receive
under this Lease, or if Landlord shall grant a deed or other instrument in lieu
of such taking by eminent domain or condemnation as a result thereof, Landlord
and Tenant shall each have the option to terminate this Lease on ninety (90)
days notice to the other party effective as of the date possession is required
to be surrendered to the authority. Subject to SECTION 13.2 below, Tenant shall
not because of such taking assert any claim against Landlord or the authority
for any compensation because of such taking and Landlord shall be entitled to
the entire award or payment in connection therewith, except that Tenant shall
have the right to file any separate claim available to Tenant for any taking of
Tenant's personal property and fixtures belonging to Tenant and removable by
Tenant upon expiration of the Lease Term pursuant to the TCCs of this Lease, and
for moving expenses, so long as such claims do not diminish the award available
to Landlord or its ground lessor, if any, with respect to the Building or
Project, or its mortgagee, and such claim is payable separately to Tenant. All
Rent shall be apportioned as of the date of such termination. If any part of the
Premises shall be taken, and this Lease shall not be so terminated, the Rent
shall be proportionately abated. Notwithstanding anything to the contrary
contained in this ARTICLE 13, in the event of a temporary taking of all or any
portion of the Premises for a period of sixty (60) days or less, then this Lease
shall not terminate but the Base Rent and the Additional Rent shall be abated
for the period of such taking in proportion to the ratio that the amount of
rentable square feet of the Premises taken bears to the total rentable square
feet of the Premises. Subject to SECTION 13.2 below, Landlord shall be entitled
to receive the entire award made in connection with any such temporary taking.
Landlord and Tenant hereby waive the provisions of any statutes or other laws
relating to the termination of leases in the event of condemnation, and agrees
that the rights and obligations of the parties in such event shall be governed
by the terms of this Lease.
13.2 TENANT'S RIGHT TO AWARD. Subject to the provisions of SECTION 13.1
above, Tenant shall have the right to claim and recover (i) the fair market
value of the Alterations to the extent paid for solely by Tenant, (ii) any sum
awarded to Tenant for damages to or loss of Tenant's business, and (iii) such
compensation as may be separately awarded or recoverable by Tenant on account of
any and all costs or losses related to removing Tenant's merchandise, furniture,
fixtures, leasehold improvements, and equipment to a new location.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 TRANSFERS. Tenant shall not: (A) mortgage, pledge, hypothecate,
encumber, or permit any lien to attach to this Lease or any interest hereunder
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld; nor (B) without the prior written consent (except as
otherwise provided in SECTION 14.7, below) of Landlord, which consent will not
be unreasonably withheld, conditioned or delayed, assign, or otherwise transfer,
this Lease or any interest hereunder, permit any assignment, or other transfer
of this Lease or any interest
30
hereunder by operation of law, sublet the Premises or any part thereof, or enter
into any license or concession agreements or otherwise permit the occupancy or
use of the Premises or any part thereof by any persons other than Tenant and its
employees and contractors; (all of the foregoing (in Clauses (A) and (B)) are
hereinafter sometimes referred to collectively as "TRANSFERS" and any person to
whom any Transfer is made or sought to be made is hereinafter sometimes referred
to as a "TRANSFEREE"). If Tenant desires Landlord's consent to any Transfer,
Tenant shall notify Landlord in writing, which notice (the "TRANSFER NOTICE")
shall include (i) the proposed effective date of the Transfer, which shall not
be less than twenty (20) days nor more than sixty (60) days after the date of
delivery of the Transfer Notice, (ii) a description of the portion of the
Premises to be transferred (the "SUBJECT SPACE"), (iii) all of the TCCs of the
proposed Transfer and the consideration therefor, including calculation of the
"TRANSFER PREMIUM," as that term is defined in SECTION 14.3 below, in connection
with such Transfer, (iv) the name and address of the proposed Transferee, and a
copy of all existing executed and/or proposed documentation pertaining to the
proposed Transfer, including all existing operative documents to be executed to
evidence such Transfer or the agreements incidental or related to such Transfer,
(v) current financial statements of the proposed Transferee certified by an
officer, partner or owner thereof, business credit and personal references and
history of the proposed Transferee and any other information required by
Landlord which will enable Landlord to determine the financial responsibility,
character, and reputation of the proposed Transferee, nature of such
Transferee's business and proposed use of the Subject Space and (vi) an executed
estoppel certificate from Tenant in the form attached hereto as EXHIBIT E-1. Any
Transfer made without Landlord's prior written consent shall, at Landlord's
option, be null, void and of no effect, and shall, at Landlord's option,
constitute a default by Tenant under this Lease. Whether or not Landlord
consents to any proposed Transfer, Tenant shall, within thirty (30) days after
written request by Landlord, reimburse Landlord for all reasonable and actual
out-of-pocket third-party costs and expenses incurred by Landlord in connection
with its review of a proposed Transfer; provided that such costs and expenses
shall not exceed One Thousand and No/100 Dollars ($1,000.00) for a Transfer in
the ordinary course of business.
14.2 LANDLORD'S CONSENT. Landlord shall not unreasonably withhold,
condition or delay its consent to any proposed Transfer under clause 14.2(B) of
the Subject Space to the Transferee on the terms specified in the Transfer
Notice. Without limitation as to other reasonable grounds for withholding
consent, the parties hereby agree that it shall be reasonable under this Lease
and under any Applicable Law for Landlord to withhold consent to any proposed
Transfer where one or more of the following apply:
14.2.1 Landlord reasonably determines that the Transferee is of a
character or reputation or engaged in a business which is not consistent with
the quality of the Building or the Project;
14.2.2 The Transferee intends to use the Subject Space for purposes
which are not permitted under this Lease;
14.2.3 The Transferee is either a governmental agency or
instrumentality thereof;
14.2.4 Tenant has defaulted in the payment of rent (beyond
applicable notice and cure provisions) more than three times in the prior twelve
month period;
31
14.2.5 Landlord reasonably determines that the Transferee's
financial worth and/or financial stability is insufficient to meet the proposed
financial obligations on the date consent is requested;
14.2.6 The Transferee is an existing tenant of the Project and
Landlord has other comparable space available in the Project;
14.2.7 The parking requirements of the Transferee are in excess of
the proportionate share of parking which would be allocable to the Subject Space
based on the rentable square footage of the Subject Space compared to the total
rentable square footage of the Project;
14.2.8 There is an uncured event of default under the Lease (beyond
any applicable notice and cure provisions).
If Landlord consents to any Transfer pursuant to the TCCs of this SECTION
14.2 (and does not exercise any Landlord's Option (as defined in SECTION 14.4,
below) Landlord may have under SECTION 14.4 of this Lease), Tenant may within
one (1) month after Landlord's consent, but not later than the expiration of
said one-month period, enter into such Transfer of the Premises or portion
thereof, upon substantially the same terms and conditions as are set form in the
Transfer Notice furnished by Tenant to Landlord pursuant to SECTION 14.1 of this
Lease, provided that if there are any material changes in the terms and
conditions from those specified in the Transfer Notice (i) such that Landlord
would initially have been entitled to refuse its consent to such Transfer under
this SECTION 14.2, or (ii) which would cause the proposed Transfer to be
materially more favorable to the Transferee than the terms set forth in Tenant's
original Transfer Notice, Tenant shall again submit the Transfer to Landlord for
its approval and other action under this ARTICLE 14 (including Landlord's Option
rights, if any, under SECTION 14.4 of this Lease). Notwithstanding anything to
the contrary in this Lease, if Tenant or any proposed Transferee claims that
Landlord has unreasonably withheld or delayed its consent under SECTION 14.2 or
otherwise has breached or acted unreasonably under this ARTICLE 14, their
remedies shall be restricted to a declaratory judgment and an injunction for the
relief sought, and shall exclude money damages. Tenant shall indemnify, defend
and hold harmless Landlord from any and all liability, losses, claims, damages,
costs, expenses, causes of action and proceedings involving any third party or
parties (including without limitation Tenant's proposed subtenant or assignee)
who claim they were damaged by Landlord's wrongful withholding or conditioning
of Landlord's consent.
14.3 TRANSFER PREMIUM. If Landlord consents to a Transfer, as a condition
thereto which the parties hereby agree is reasonable, Tenant shall pay to
Landlord fifty percent (50%) of any "Transfer Premium," as that term is defined
in this SECTION 14.3, received by Tenant from such Transferee. "TRANSFER
PREMIUM" shall mean all rent, additional rent or other consideration payable by
such Transferee in connection with the Transfer in excess of the Rent and
Additional Rent payable by Tenant under this Lease during the term of the
Transfer on a per rentable square foot basis if less than all of the Premises is
transferred, after deducting all expenses incurred by Tenant (i) in making any
changes, alterations and improvements to the Premises in connection with the
Transfer, (ii) any free base rent provided to the Transferee, and (iii) any
brokerage commissions in connection with the Transfer. "Transfer Premium" shall
also include, but not be
32
limited to, bonus money or other cash consideration paid by Transferee to Tenant
in connection with such Transfer, and any payment in excess of fair market value
for services rendered by Tenant to Transferee or for assets, fixtures,
inventory, equipment, or furniture transferred by Tenant to Transferee in
connection with such Transfer. In the calculations of the Rent (as it relates to
the Transfer Premium calculated under this SECTION 14.3), and the Transferee's
Rent, the Rent paid during each annual period for the Subject Space, and the
Transferee's Rent shall be computed after adjusting such rent to the actual
effective rent to be paid, taking into consideration any and all leasehold
concessions granted in connection therewith, including, but not limited to, any
rent credit and tenant improvement allowance. For purposes of calculating any
such effective rent all such concessions shall be amortized on a straight-line
basis over the relevant term.
14.4 LANDLORD'S OPTION AS TO SUBJECT SPACE.
14.4.1 ASSIGNMENTS. In the event that a proposed Transfer, if
consented to, would cause this Lease to be assigned to a party other than
Original Tenant and/or its Affiliates, then notwithstanding anything to the
contrary contained in this ARTICLE 14, Landlord shall have the option
("LANDLORD'S RECAPTURE OPTION"), by giving written notice to Tenant (the
"Landlord Recapture Notice") within thirty (30) days after receipt of any
Transfer Notice, to recapture the Subject Space. In such case, the Landlord
Recapture Notice shall cancel and terminate this Lease with respect to the
Subject Space as of the date stated in the Transfer Notice (or at Landlord's
option, shall cause the Transfer to be made to Landlord or its agent, in which
case the parties shall execute the Transfer documentation promptly thereafter).
In the event of a recapture by Landlord, if this Lease shall be canceled with
respect to less than the entire Premises, the Rent reserved herein shall be
prorated on the basis of the number of rentable square feet retained by Tenant
in proportion to the number of rentable square feet contained in the Premises,
and this Lease as so amended shall continue thereafter in full force and effect,
and upon request of either party, the parties shall execute written confirmation
of the same. If Landlord declines, or fails to elect in a timely manner to
recapture the Subject Space under this SECTION 14.4, then, provided Landlord has
consented to the proposed Transfer, Tenant shall be entitled to proceed to
transfer the Subject Space to the proposed Transferee, subject to provisions of
this ARTICLE 14. As used in this Article 14, "Original Tenant" shall mean
3Com
Corporation.
14.4.2 SUBLEASES. In the event that a proposed Transfer, if
consented to, would cause more than two floors, or fifty-five percent (55%) or
more of the Premises to be subleased to a party other than Original Tenant
and/or its Affiliates, then notwithstanding anything to the contrary contained
in this ARTICLE 14, Landlord shall have the option ("LANDLORD'S OPTION"), by
giving written notice to Tenant (the "Landlord Option Notice") within thirty
(30) days after receipt of any Transfer Notice, to sublease the Subject Space to
Landlord, or Landlord's nominee or assignee, subject to the terms set forth in
the Transfer Notice, in which case the parties shall execute the Transfer
documentation promptly thereafter. If Landlord declines, or fails to elect in a
timely manner to sublease the Subject Space under this SECTION 14.4, then,
provided Landlord has consented to the proposed Transfer, Tenant shall be
entitled to proceed to transfer the Subject Space to the proposed Transferee,
subject to provisions of this ARTICLE 14.
14.5 EFFECT OF TRANSFER. If Landlord consents to a Transfer, (i) the TCCs
of this Lease shall in no way be deemed to have been waived or modified, (ii)
such consent shall not be
33
deemed consent to any further Transfer by either Tenant or a Transferee, (iii)
Tenant shall deliver to Landlord, promptly after execution, an original executed
copy of all documentation pertaining to the Transfer, and (iv) no Transfer
relating to this Lease or agreement entered into with respect thereto, whether
with or without Landlord's consent, shall relieve Tenant from any liability
under this Lease, including, without limitation, in connection with the Subject
Space. Landlord or its authorized representatives shall have the right at all
reasonable times and upon reasonable prior notice to audit the books, records
and papers of Tenant relating to any Transfer, and shall have the right to make
copies thereof. If the Transfer Premium respecting any Transfer shall be found
understated, Tenant shall, within thirty (30) days after demand, pay the
deficiency, and if understated by more than five percent (5%), Tenant shall pay
Landlord's costs of such audit.
14.6 OCCURRENCE OF DEFAULT. Any Transfer hereunder shall be subordinate
and subject to the provisions of this Lease, and if this Lease shall be
terminated during the term of any Transfer, Landlord shall have the right to:
(i) treat such Transfer as cancelled and repossess the Subject Space by any
lawful means, or (ii) require that such Transferee attorn to and recognize
Landlord as its landlord under any such Transfer. If Tenant shall be in default
under this Lease, Landlord is hereby authorized to direct any Transferee to make
all payments under or in connection with the Transfer directly to Landlord
(which Landlord shall apply towards Tenant's obligations under this Lease) until
such default is cured. Such Transferee shall rely on any representation by
Landlord that Tenant is in default hereunder, without any need for confirmation
thereof by Tenant. Upon any assignment, the assignee shall assume in writing all
obligations and covenants of Tenant thereafter to be performed or observed under
this Lease. No collection or acceptance of rent by Landlord from any Transferee
shall be deemed a waiver of any provision of this ARTICLE 14 or the approval of
any Transferee or a release of Tenant from any obligation under this Lease,
whether theretofore or thereafter accruing. In no event shall Landlord's
enforcement of any provision of this Lease against any Transferee be deemed a
waiver of Landlord's right to enforce any term of this Lease against Tenant or
any other person.
14.7 NON-TRANSFERS. Notwithstanding anything to the contrary contained in
this ARTICLE 14, an assignment or subletting of all or a portion of the Premises
to any entity which is controlled directly or indirectly by Tenant, or which
entity controls, directly or indirectly, Tenant (in each such case, an
"AFFILIATE"), or any entity which owns or is owned by an Affiliate, or any
assignment by operation of law or otherwise resulting from any merger or
consolidation of Tenant or to any entity which purchases all or substantially
all the stock or assets of Tenant, shall not be deemed a Transfer under this
ARTICLE 14, provided that at least thirty (30) days prior to such assignment or
sublease (i) Tenant notifies Landlord of any such assignment or sublease and
certified that the applicable Transfer is to an Affiliate; and (ii) such
assignment or sublease is not a subterfuge by Tenant to avoid its obligations
under this Lease. In the event an assignment or sublease to an Affiliate is made
pursuant to the TCCs of this SECTION 14.7, Tenant shall not be relieved of its
obligations under this Lease. "CONTROL," as used in this SECTION 14.7, shall
mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person or entity, whether by
ownership of voting securities, by contract or otherwise.
34
ARTICLE 15
SURRENDER OF PREMISES; OWNERSHIP AND
REMOVAL OF TRADE FIXTURES
15.1 SURRENDER OF PREMISES. No act or thing done by Landlord or any agent
or employee of Landlord during the Lease Term shall be deemed to constitute an
acceptance by Landlord of a surrender of the Premises unless such intent is
specifically acknowledged in writing by Landlord or its management company. The
delivery of keys to the Premises to Landlord or any agent or employee of
Landlord shall not constitute a surrender of the Premises or effect a
termination of this Lease, whether or not the keys are thereafter retained by
Landlord, and notwithstanding such delivery Tenant shall be entitled to the
return of such keys at any reasonable time upon request until this Lease shall
have been properly terminated. The voluntary or other surrender of this Lease by
Tenant, whether accepted by Landlord or not, or a mutual termination hereof,
shall not work a merger, and at the option of Landlord shall operate as an
assignment to Landlord of all subleases or subtenancies affecting the Premises
or terminate any or all such sublessees or subtenancies.
15.2 REMOVAL OF TENANT PROPERTY BY TENANT. Upon the expiration of the
Lease Term, or upon any earlier termination of this Lease, Tenant shall, subject
to the provisions of this ARTICLE 15, quit and surrender possession of the
Premises to Landlord in as good order and condition as when Tenant took
possession and as thereafter improved by Landlord and/or Tenant, reasonable wear
and tear, damage due to casualty or condemnation, or repairs which are
specifically made the responsibility of Landlord hereunder excepted. Upon such
expiration or termination, Tenant shall, without expense to Landlord, remove or
cause to be removed from the Premises all debris and rubbish, and such items of
furniture (excepting the Furniture), equipment, business and trade fixtures,
free-standing cabinet work, movable partitions and other articles of personal
property owned by Tenant or installed or placed by Tenant at its expense in the
Premises (excluding, however, Tenant's Alterations), and Tenant shall repair at
its own expense all damage to the Premises and Building to the extent resulting
from such removal.
ARTICLE 16
HOLDING OVER
16.1 INTERIM PREMISES. If Tenant holds over in the Interim Premises after
the expiration of Transition Period, with or without the express or implied
consent of Landlord, such tenancy shall be such tenancy shall be from
month-to-month only, and shall not, except as set forth below, constitute a
renewal hereof or an extension for any further term, and in such case Base Rent
shall be payable at a monthly rate equal to the product of (i) the rentable
square footage contained in that portion (each "portion" being one of the
following: (i) the NOC Room and NOC Storage on level one; or (ii) the Server
Room on the second level as shown on EXHIBIT F ) of the Interim Premises which
has not been timely vacated by Tenant, and (ii) $31.50 divided by twelve (12),
prorated for the actual number of days in which Tenant holds over in such
portion of the Interim Premises. Such month-to-month tenancy shall be subject to
every other applicable TCCs contained herein. Nothing contained in this ARTICLE
16 shall be construed as consent by Landlord to any holding over by Tenant, and
Landlord expressly reserves the right to
35
require Tenant to surrender possession of the Interim Premises to Landlord as
provided in this Lease upon the expiration or other termination of this Lease.
The provisions of this ARTICLE 16 shall not be deemed to limit or constitute a
waiver of any other rights or remedies of Landlord provided herein or at law. If
Tenant fails to surrender the Interim Premises upon the expiration of the
Transition Period, in addition to any other liabilities to Landlord accruing
therefrom, Tenant shall protect, defend, indemnify and hold Landlord harmless
from all loss, costs (including reasonable attorneys' fees) and liability
resulting from any claims made by any succeeding tenant founded upon such
failure to surrender.
16.2 ADDITIONAL PREMISES. If Tenant holds over in the Additional Premises
after notice terminating the Lease with respect to the Additional Premises, as
set forth in SECTION 1.1.3, above, with or without the express or implied
consent of Landlord, such tenancy shall be such tenancy shall be from
month-to-month only, and shall not, except as set forth below, constitute a
renewal hereof or an extension for any further term, and in such case Base Rent
shall be payable at a monthly rate equal to the product of (i) the rentable
square footage contained in the Additional Premises, and (ii) $31.50 divided by
twelve (12), prorated for the actual number of days in which Tenant holds over
in such portion of the Additional Premises. Such month-to-month tenancy shall be
subject to every other applicable TCCs contained herein. Nothing contained in
this ARTICLE 16 shall be construed as consent by Landlord to any holding over by
Tenant, and Landlord expressly reserves the right to require Tenant to surrender
possession of the Additional Premises to Landlord as provided in this Lease upon
the expiration or other termination of this Lease. The provisions of this
ARTICLE 16 shall not be deemed to limit or constitute a waiver of any other
rights or remedies of Landlord provided herein or at law. If Tenant fails to
surrender the Additional Premises upon the expiration or earlier termination of
the Term, in addition to any other liabilities to Landlord accruing therefrom,
Tenant shall protect, defend, indemnify and hold Landlord harmless from all
loss, costs (including reasonable attorneys' fees) and liability resulting from
any claims made by any succeeding tenant founded upon such failure to surrender.
16.3 PREMISES. If Tenant holds over after the expiration of the Lease Term
or earlier termination thereof, with or without the express or implied consent
of Landlord, such tenancy shall be from month-to-month only, and shall not,
except as set forth below, constitute a renewal hereof or an extension for any
further term, and in such case Rent shall be payable at a monthly rate equal to
the product of (i) the Rent applicable during the last rental period of the
Lease Term under this Lease, and (ii) one hundred fifty percent (150%). Such
month-to-month tenancy shall be subject to every other applicable TCCs contained
herein. Nothing contained in this ARTICLE 16 shall be construed as consent by
Landlord to any holding over by Tenant, and Landlord expressly reserves the
right to require Tenant to surrender possession of the Premises to Landlord as
provided in this Lease upon the expiration or other termination of this Lease.
The provisions of this ARTICLE 16 shall not be deemed to limit or constitute a
waiver of any other rights or remedies of Landlord provided herein or at law. If
Tenant fails to surrender the Premises upon the expiration or earlier
termination of the Term, in addition to any other liabilities to Landlord
accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord
harmless from all loss, costs (including reasonable attorneys' fees) and
liability resulting from any claims made by any succeeding tenant founded upon
such failure to surrender.
36
ARTICLE 17
ESTOPPEL CERTIFICATES
Within ten (10) business days following a request in writing by either
party hereto, the other party shall execute, acknowledge and deliver to the
requesting party an estoppel certificate, which, as submitted by Landlord to
Tenant, shall be substantially in the form of EXHIBIT E-1 attached hereto, and
which, as submitted by Tenant to Landlord, shall be substantially in the form of
EXHIBIT E-2 attached hereto, or such other substantially similar form containing
such other information as shall be reasonably requested by any party to whom the
estoppel certificate is to be provided, and subject to the mutual agreement of
Landlord and Tenant, indicating therein any exceptions thereto that may exist at
that time. Any such certificate may be relied upon by a third party for whose
benefit the estoppel certificate has been requested.
ARTICLE 18
SUBORDINATION
This Lease shall be subject and subordinate to all present and future
ground or underlying leases of the Building or Project and to the lien of any
mortgage, trust deed or other encumbrances now or hereafter in force against the
Building or Project or any part thereof, if any, and to all renewals,
extensions, modifications, consolidations and replacements thereof, and to all
advances made or hereafter to be made upon the security of such mortgages or
trust deeds, unless the holders of such mortgages, trust deeds or other
encumbrances (collectively, "LIENHOLDERS"), or the lessors under such ground
lease or underlying leases require in writing that this Lease be superior
thereto. Tenant covenants and agrees in the event any proceedings are brought
for the foreclosure of any such mortgage or deed in lieu thereof (or if any
ground lease is terminated), to attorn, without any deductions or set-offs
whatsoever, to the lienholder or purchaser or any successors thereto upon any
such foreclosure sale or deed in lieu thereof (or to the ground lessor), if so
requested to do so by such purchaser or lienholder or ground lessor, and to
recognize such purchaser or lienholder or ground lessor as the lessor under this
Lease. Landlord's interest herein may be assigned as security at any time to any
lienholder. Tenant's foregoing agreements concerning subordination of this Lease
shall be subject to, in each case, Landlord's obtaining from any such lienholder
or lessor, and delivering to Tenant a Subordination, Non-Disturbance and
Attornment Agreement ("SNDA") in commercially reasonably form and substance
(provided, however, that such form shall in no way affect the Term or Rent under
this Lease or otherwise materially, adversely diminish the rights or increase
the obligations of Tenant hereunder) whereby such executing party shall agree
not to disturb the tenancy of the Tenant under, and pursuant to the terms of,
this Lease, so long as Tenant shall not be in default hereunder after any
applicable notice and opportunity to cure, and shall agree to attorn to said
lienholder or lessor and to execute, acknowledge and deliver any reasonable
instrument that has for its purpose and effect the confirmation of such
subordination, non-disturbance and attornment or superiority of this Lease to
any such mortgages, trust deeds, ground leases or underlying leases in
accordance with the TCCs of this ARTICLE 18. Tenant shall execute and deliver to
Landlord, at the time it executes this Lease, and thereafter, upon ten (10) days
advance written request, any SNDA that Landlord may reasonably require on a
commercially reasonable, recordable form as required by the applicable
lienholder or ground
37
lessor, subject to any reasonable revisions requested by Tenant and acceptable
to such lienholder. Tenant waives the provisions of any current or future
statute, rule or law which may give or purport to give Tenant any right or
election to terminate or otherwise adversely affect this Lease and the
obligations of the Tenant hereunder in the event of any foreclosure proceeding
or sale.
ARTICLE 19
DEFAULTS: REMEDIES
19.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute a default of this Lease by Tenant:
19.1.1 Any failure by Tenant to pay any Rent or any other charge
required to be paid under this Lease, or any part thereof, when due unless such
failure is cured within five (5) business days after written notice with respect
to Base Rent, AP Rent, Tenant's Electricity Cost and Tenant's Share of the
Estimated Excess, or within thirty (30) days after written notice with respect
to other items of Additional Rent or other charges required under this Lease,
provided, however, Landlord shall not be required to give written notice more
than three times in any twelve month period; or
19.1.2 Any failure by Tenant to observe or perform any other
provision, covenant or condition of this Lease to be observed or performed by
Tenant where such failure continues for thirty (30) days after written notice
thereof from Landlord to Tenant; provided that if the nature of such default is
such that the same cannot reasonably be cured within a thirty (30) day period,
Tenant shall not be deemed to be in default if it diligently commences such cure
within such period and thereafter diligently proceeds to rectify and cure such
default; or
19.1.3 (a) The making by Tenant of any general arrangement or
general assignment for the benefit of creditors; (b) Tenant becomes a "debtor"
as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in
the case of a petition filed against Tenant, the same is dismissed within sixty
(60) days); (c), the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days; (d) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within sixty (60)
days or the date of any sooner sale of any of such assets; or (e) Tenant shall
become subject to any proceeding in bankruptcy or insolvency.
The notice periods provided herein are in lieu of, and not in addition to,
any notice periods provided by law. As used herein, "default", "event of
default" or "breach" by Tenant means a failure by Tenant referred to above in
this Section 19.1 that has not been cured within the applicable time period
(after notice if so required) provided above. An event of default, default or
breach shall be deemed to have been cured upon removal or cessation of the event
or circumstances giving rise to such event of default, default or breach.
19.2 REMEDIES UPON DEFAULT. Upon the occurrence of any event of default by
Tenant, Landlord shall have, in addition to any other remedies available to
Landlord at law or in equity
38
(all of which remedies shall be distinct, separate and cumulative), the option
to pursue any one or more of the following remedies, each and all of which shall
be cumulative and nonexclusive, without any notice or demand whatsoever.
19.2.1 Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, use any lawful means to expel or remove Tenant
and any other person who may be occupying the Premises or any part thereof,
without being liable for prosecution or any claim or damages therefor; and
Landlord may recover from Tenant the following:
(i) The worth at the time of award of the unpaid
rent which had been earned at the time of such
termination; plus
(ii) The worth at the time of award of the amount
by which the unpaid rent which would have been
earned after termination until the time of award
exceeds the amount of such rental loss that
Tenant proves could have been reasonably
avoided; plus
(iii) The worth at the time of award of the amount
by which the unpaid rent for the balance of the
Lease Term after the time of award exceeds the
amount of such rental loss that Tenant proves
could have been reasonably avoided; plus
(iv) At Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may
be permitted from time to time by applicable
law.
The term "RENT" as used in this SECTION 19.2 shall be deemed to be and to
mean all sums of every nature required to be paid by Tenant pursuant to the TCCs
of this Lease, whether to Landlord or to others. As used in Paragraphs 19.2.1(i)
and (ii), above, the "worth at the time of award" shall be computed by allowing
interest at the rate set forth in ARTICLE 25 of this Lease through the date of
any judgment against Tenant, but in no case greater than the maximum amount of
such interest permitted by law. As used in Paragraph 19.2.l(iii) above, the
"worth at the time of award" shall be computed by discounting future liabilities
after the date of any judgment against Tenant at the discount rate of the
Federal Reserve Bank of New York.
19.2.2 Maintain Tenant's right to possession in which case this
Lease shall continue in effect whether or not Tenant shall have vacated or
abandoned the Premises. In such event, Landlord shall be entitled to enforce all
of Landlord's rights and remedies under this Lease, including the right to
recover the rent as it becomes due hereunder. No action by Landlord shall be
deemed a termination of this Lease except written notice by Landlord delivered
to Tenant expressly declaring a termination of this Lease. If Landlord maintains
Tenant's right to possession, Landlord may thereafter elect to terminate this
Lease.
39
19.2.3 Terminate this Lease and, in addition to any recoveries
Landlord may seek under SECTION 19.2.1, bring an action to reenter and regain
possession of the Premises in the manner provided by the laws of the
Commonwealth of
Massachusetts then in effect.
19.2.4 Pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the Commonwealth of
Massachusetts.
19.2.5 Landlord shall at all times have the rights and remedies
(which shall be cumulative with each other and cumulative and in addition to
those rights and remedies available under SECTIONS 19.2.1 through 19.2.4, above,
or any law or other provision of this Lease), without prior demand or notice
except as required by applicable law, to seek any declaratory, injunctive or
other equitable relief, and specifically enforce this Lease, or restrain or
enjoin a violation or breach of any provision hereof; provided, however, that
Landlord shall use commercially reasonable efforts to mitigate damages.
19.3 SUBLEASES OF TENANT. If Landlord elects to terminate this Lease on
account of any default by Tenant, as set forth in this ARTICLE 19, Landlord
shall have the right to terminate any and all subleases, licenses, concessions
or other consensual arrangements for possession entered into by Tenant and
affecting the Premises or may, in Landlord's sole discretion, succeed to
Tenant's interest in such subleases, licenses, concessions or arrangements. If
Landlord has terminated this Lease and elected to succeed to Tenant's interest
in any such subleases, licenses, concessions or arrangements, Tenant shall, as
of the date of notice by Landlord of such election, have no further right to or
interest in the rent or other consideration receivable thereunder.
19.4 NO RELIEF FROM FORFEITURE AFTER DEFAULT. Tenant waives all rights of
redemption or relief from forfeiture under any present or future laws or
statutes, in the event Tenant is evicted or Landlord otherwise lawfully takes
possession of the Premises by reason of any default by Tenant under this Lease.
19.5 EFFORTS TO RELET. No re-entry or repossession, repairs, maintenance,
changes, alterations and additions, reletting, appointment of a receiver to
protect Landlord's interests hereunder, or any other action or omission by
Landlord shall be construed as an election by Landlord to terminate this Lease
or Tenant's right to possession, or to accept a surrender of the Premises, nor
shall same operate to release Tenant in whole or in part from any of Tenant's
obligations hereunder, unless express written notice of such intention is sent
by Landlord to Tenant. Tenant hereby irrevocably waives any right otherwise
available under any law to redeem or reinstate this Lease.
19.6 LANDLORD DEFAULT. Notwithstanding anything to the contrary set forth
in this Lease, Landlord shall be in default in the performance of any obligation
required to be performed by Landlord pursuant to this Lease if Landlord fails to
perform such obligation within thirty (30) days after the receipt of notice from
Tenant specifying in detail Landlord's failure to perform, or in the case of
emergency (as defined in Section 7.1 above), sufficiently promptly to prevent
avoidable material damage to persons and property, subject in all cases to force
majeure; provided, however, if the nature of Landlord's obligation is such that
more than thirty (30) days are required for its performance, then Landlord shall
not be in default under this Lease if it shall promptly commence such
performance within such thirty (30) day period and thereafter
40
diligently pursues the same to completion, subject to force majeure. Upon any
such default by Landlord under this Lease, Tenant may, except as otherwise
specifically provided in this Lease to the contrary, take such action as may be
reasonably required to cure said default, and/or exercise any of its rights
provided at law or in equity, and Landlord shall reimburse Tenant for its
reasonable out-of-pocket costs to third parties in effecting such cure within
thirty (30) days after receipt of Tenant's invoice therefore accompanied by
copies of all invoices and statements detailing such costs and such other
information as may reasonably be requested by Landlord. Tenant shall have no
right to offset or withhold the payment or Rent as a result of Landlord's
default, and except as expressly provided in SECTIONS 6.3, 11.1 and 13.1, Tenant
shall have no right to an abatement of rent or to terminate this Lease as the
result of Landlord's default.
ARTICLE 20
COVENANT OF QUIET ENJOYMENT
Landlord covenants that subject to Tenant's performance of its obligations
under this Lease Tenant shall, during the Lease Term, peaceably and quietly
have, hold and enjoy the Premises subject to the terms, covenants, conditions,
provisions and agreements hereof without interference by any persons lawfully
claiming by or through Landlord. The foregoing covenant is in lieu of any other
covenant express or implied.
ARTICLE 21
INTENTIONALLY OMITTED
ARTICLE 22
SATELLITE DISH
22.1 SATELLITE DISH. Subject to the provisions and conditions of this
Article 22, Landlord hereby consents to (i) Tenant's continued operation of the
satellite dish located on the roof of Building 4 (the "BUILDING 4 DISH"), in its
current location, size and configuration; and (ii) the installation of an
additional satellite dish antenna in a portion of the roof of the Building (the
"NEW DISH"; collectively with the Building 4 Dish, the "SATELLITE DISHES"), in
such location as may be designated by Landlord, for the sole use of Tenant.
Tenant agrees and hereby covenants to Landlord as follows:
22.1.1. The New Dish shall not be visible from ground level, and
shall not exceed thirty inches in diameter and shall not project more than five
feet above the roof surface of the Building, unless otherwise approved by
Landlord which approval shall not be unreasonably withheld;
22.1.2. Installation, service, repair, maintenance and removal of
the Satellite Dishes shall be performed by a reputable contractor that has been
approved by Landlord in writing. Installation, service, repair and maintenance
of the Satellite Dishes shall be performed during normal office hours (8:00 a.m.
to 5:00 p.m., Monday to Friday). Tenant shall have access
41
to the roof of the Building and to the roof of Building 4 for the purposes of
such maintenance; provided, however, that Tenant shall not have access to the
roof of any building in the Project unless accompanied by Landlord's agent;
22.1.3. The installation, operation and maintenance of the Satellite
Dishes shall not interfere with the peaceful enjoyment by any other tenant of
its respective premises and/or the operation of any other antennae or satellite
dishes which may be permitted by Landlord;
22.1.4. Tenant shall be solely liable for the installation,
maintenance, repair and removal of the Satellite Dishes, and shall remove the
Satellite Dishes and repair any damage caused by such removal prior to the
expiration or earlier termination of the Lease. The installation of the New Dish
and operation, maintenance and removal of the Satellite Dishes shall be
performed (i) in a good and workmanlike manner, so that they would not create a
hazard to life or property; (ii) in compliance with all applicable federal,
state and local laws, regulations and ordinances, (iii) with due care and regard
for safety and in a manner that will not cause injury or death to persons or
damage to property; (iv) so that no lien or other encumbrance shall be placed on
any portion of the Project, and (v) in a way that will not limit or void any
warranty on the roof nor cause nor permit leaking of the roof, nor impair the
structural integrity of any building in the Project;
22.1.5 Tenant shall insure that its use and operation of the
Satellite Dishes does not create a nuisance;
22.1.6 There shall be no penetrations of the roof of any building
in the Project unless specifically approved by Landlord in writing. Whether or
not Landlord approves such penetrations, in the event the roof leaks, or any
other physical damage to the roof occurs as a result of the installation and/or
maintenance of the Satellite Dishes, Landlord shall provide written notice of
such leaks and upon receipt of such notice Tenant shall meet with Landlord or
its agent within twenty-four hours to determine the extent of such damage, and
any required repairs shall be performed by a licensed roofing contractor
approved by Landlord at the sole cost and expense of Tenant. If Tenant fails to
meet with Landlord as set forth above, declines to complete such repairs and/or
to have such repairs completed within seven days (or such shorter time as may be
prudent under the circumstances), Landlord may, but shall not be obligated to,
have the roof repaired, and Tenant shall reimburse Landlord for the cost thereof
as additional rent within ten days after receipt of an invoice from Landlord;
notwithstanding the foregoing, so long as Landlord is able to undertake said
repairs and Tenant reimburses Landlord for the cost thereof as set forth above,
Tenant shall not be deemed to be in default under this Lease for failing to have
undertaken such repairs; and
22.1.7. Tenant's subcontractors for installation, maintenance,
service and repair of the Satellite Dishes shall carry and maintain in force the
following insurance with companies reasonable satisfactory to Landlord, and
Tenant shall provide Landlord with insurance certificates specifying such
coverage within thirty (30) days after the Lease Commencement Date (or prior to
the performance of any work by such contractors, if earlier), and annually
thereafter:
42
Worker's Compensation and Employer's Liability insurance coverage
for all employees engaged in performing services in connection with the
Satellite Dishes, in accordance with all laws which may be applicable to
said employees;
Comprehensive General Liability Insurance in the amount of One
Million Dollars ($1,000,000) for injury, death, or tangible property damage
resulting from each occurrence with a Two Million Dollar ($2,000,000)
aggregate limit; and
Automobile Liability insurance coverage covering owned, non-owned,
and rented automotive equipment providing at least Five Hundred Thousands
Dollars ($500,000) for coverage of injury, death or tangible property
damage resulting from each occurrence.
22.2 INDEMNIFICATION. Tenant shall indemnify, defend and hold Landlord,
and its partners, members, employees, contractors, agents and representatives
from and against all claims, actions, damages, liability, or other expense,
including, without limitation, reasonable attorneys' fees, which arise or are
alleged to arise as a result of (i) the negligence, misfeasance or willful
misconduct of Tenant, its employees, officers, agents, representatives, invitees
or contractors resulting in any accident or injury to any person or damage to
property (including without limitation, damages to the roof of the Building or
the structural integrity thereof, and leaking and damages related to or caused
by leaking related to the installation, operation or maintenance of the
Satellite Dish), (ii) any breach of the agreements, representations and
warranties set forth in this Article 22.
ARTICLE 23
SIGNS
Tenant shall have the right, with Landlord's prior written consent as to
content, size and form, which consent shall not be unreasonably withheld or
delayed, to place a monument sign near the entrance of the Building, and to
place prominent signage on the exterior of the Building. Under no circumstances
shall Tenant place a sign on any roof of the Building. Tenant currently has a
monument sign at the entrance to the Project (the "Existing Monument"). Provided
that Landlord is permitted by the City of Marlborough and any other governmental
authority having jurisdiction, to place a monument sign at the entrance to the
Project (in addition to the Existing Monument), then Tenant may retain the
Existing Monument at the entrance to the Project, provided that Landlord, at
Landlord's election, may relocate the Existing Monument to another position at
the entrance to the Project designated by Landlord, and provided further that
the wording on the Existing Monument shall be changed by Tenant at Tenant's sole
cost and expense so that only Tenant's corporate name and/or logo is included on
the Existing Monument (and any reference to the Project's former name, 3Com
Campus, or similar, is removed from the Existing Monument) within ten (10)
business days after Landlord's request. If the City of Marlborough only permits
one monument sign at or near the entrance to the Project or if the size or
configuration of Landlord's sign would be affected by the existence of the
Existing Monument, then (i) within ten days after Landlord's notice that such
Existing Monument must be removed, Tenant may remove the existing monument; and
(ii) if Tenant does not remove the Existing Monument within said time period,
Tenant will be deemed to have conveyed the Existing Monument to the Landlord and
Landlord may remove, destroy, dispose of, alter and/or
43
re-use the Existing Monument, at Landlord's sole cost and expense; and (iii)
Landlord shall include Tenant's name on Landlord's monument signage in a
prominent manner (as used herein, "prominent" shall mean in a manner which is
consistent with the standards applicable to major tenants in Comparable
Buildings, being first in any list of tenants, and having letters at least as
big as provided for all other major tenants in the Property, subject to the
provisions of the next sentence. All of Tenant's signs (and Landlord's monument
at the entrance to the Project), shall comply with the requirements of the
covenants, conditions and restrictions of record and the requirements of the
City of Marlborough,
Massachusetts, and Tenant shall maintain all of Tenant's
signs in good condition, in accordance with Comparable Buildings. All sign(s)
(excluding Landlord's monument signs) shall be removed by Tenant and the
Premises, Building and/or Project (as the case may be) restored, at the sole
cost and expense of Tenant, upon the expiration or sooner termination of the
Lease.
ARTICLE 24
COMPLIANCE WITH LAW
Tenant shall not do anything or suffer anything to be done in or about the
Premises or the Project which will in any way conflict with any law, statute,
ordinance, decrees, codes (including without limitation building, zoning and
accessibility codes), common law, judgments, orders, rulings, awards or other
governmental or quasi-governmental rule, regulation or requirement now in force
or which may hereafter be enacted or promulgated including any "Environmental
Laws" as that term is defined in SECTION 29.31 of this Lease ("APPLICABLE
LAWS"). Tenant shall promptly provide to Landlord a copy of any written notice
received by Tenant of violation of any federal, state, county or municipal laws,
regulations, ordinances, orders or directives relating to the use or condition
of the Premises. At its sole cost and expense, Tenant shall promptly comply with
all such governmental measures to the extent that such governmental measures
relate to Tenant's particular use of the Premises or any Alterations located in
the Premises. Should any standard or regulation now or hereafter be imposed on
Landlord or Tenant by a commonwealth, state, federal or local governmental body
charged with the establishment, regulation and enforcement of occupational,
health or safety standards for employers, employees, landlords or tenants, then
Tenant agrees, at its sole cost and expense, to comply promptly with such
standards or regulations to the extent such standards or regulations relate to
Tenant's particular use of the Premises or any Alterations located in the
Premises; provided that Landlord shall comply with any standards or regulations
which relate to the Base Building or the Building Systems, unless such
compliance obligations are triggered by the Alterations in the Premises, in
which event such compliance obligations shall be at Tenant's sole cost and
expense; provided further, and notwithstanding the foregoing, that Tenant shall
not be required to make any repair to, modification of, or addition to the Base
Building or the Building Systems except and to the extent required because of
Tenant's particular use of the Premises. The judgment of any court of competent
jurisdiction or the admission by either party hereto in any judicial action,
regardless of whether this other party is a party thereto, that such party has
violated any of said governmental measures, shall be conclusive of that fact as
between Landlord and Tenant. Landlord shall comply in all material respects with
all Applicable Laws relating to the Project, Base Building and Building Systems,
provided that compliance with such Applicable Laws is not the responsibility of
Tenant under this Lease, and provided further that Landlord's failure to comply
therewith would prohibit Tenant from obtaining or maintaining a certificate of
occupancy for the
44
Premises, or would unreasonably and materially affect the safety of Tenant's
Parties or create a significant health hazard for Tenant's Parties or otherwise
materially interfere with or materially affect Tenant's Permitted Use and
enjoyment of the Premises. Landlord shall be permitted to include in Operating
Expenses any costs or expenses incurred by Landlord under this ARTICLE 24 to the
extent consistent with, and amortized to the extent required by, the TCCs of
SECTION 4.2.4 of this Lease. Landlord shall be permitted to include in Operating
Expenses any costs or expenses incurred by Landlord under this ARTICLE 24 to the
extent consistent with, and amortized to the extent required by, the TCCs of
SECTION 4.2.4 of this Lease, subject to the limitations set forth in Section
4.2.4 (J).
ARTICLE 25
LATE CHARGES
If any installment of Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord's designee within five (5) business days
following written notice that Base Rent, AP Rent, Tenant's Electricity Cost
and/or monthly payments of Tenant's Share of any Estimated Excess was not paid
when due (provided, however, that Landlord shall not be required to give Tenant
written notice more than three times in any twelve month period), or within
thirty days following written notice that such amount was not paid when due for
any other item of Additional Rent and other sums which may become due under this
Lease, then Tenant shall pay to Landlord a late charge equal to three percent
(3%) of the overdue amount. The late charge shall be deemed Additional Rent and
the right to require it shall be in addition to all of Landlord's other rights
and remedies hereunder or at law and shall not be construed as liquidated
damages or as limiting Landlord's remedies in any manner. In addition to the
late charge described above, any Rent or other amounts owing hereunder which are
not paid within five (5) business days following the due date for Base Rent, AP
Rent, Tenant's Electricity Cost and/or monthly payments of Tenant's Share of any
Estimated Excess, or within thirty (30) business days following written notice
that such amount was not paid when due for any other item of Additional Rent and
other sums which may become due under this Lease shall bear interest from the
date when due until paid at an annual interest rate equal to the Prime Rate (as
stated under the column "Money Rates" in THE WALL STREET JOURNAL) plus four
percent (4%); provided, however, in no event shall such annual interest rate
exceed the highest annual interest rate permitted by Applicable Law.
ARTICLE 26
LANDLORD'S RIGHT TO CURE DEFAULT: PAYMENTS BY TENANT
26.1 LANDLORD'S CURE. All covenants and agreements to be kept or performed
by Tenant under this Lease shall be performed by Tenant at Tenant's sole cost
and expense and without any reduction of Rent, except to the extent, if any,
otherwise expressly provided herein. If Tenant shall fail to perform any
obligation under this Lease, and such failure shall continue in excess of the
time allowed under SECTION 19.1.2, above, unless a specific time period is
otherwise stated in this Lease, Landlord may, but shall not be obligated to,
make any such payment or perform any such act on Tenant's part without waiving
its rights based upon any default of Tenant and without releasing Tenant from
any obligations hereunder.
45
26.2 TENANT'S REIMBURSEMENT. Except as may be specifically provided to the
contrary in this Lease, Tenant shall pay to Landlord, within ten (10) days
following delivery by Landlord to Tenant of receipts therefor: (i) sums equal to
expenditures reasonably made and obligations incurred by Landlord in connection
with the remedying by Landlord of Tenant's defaults pursuant to the provisions
of SECTION 26.1; and (ii) sums equal to all losses, costs, liabilities, damages
and expenses referred to in ARTICLE 10 of this Lease. All of such sums shall be
deemed Additional Rent and the right to require it shall be in addition to all
of Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner. Tenant's obligations under this SECTION 26.2 shall survive the
expiration or sooner termination of the Lease.
ARTICLE 27
ENTRY BY LANDLORD
Landlord reserves the right during normal business hours, upon no less than
24 hours prior notice to Tenant (except in the case of an emergency), and in
compliance with Tenant's reasonable security measures, to enter the Premises to
(i) inspect them; (ii) show the Premises to prospective purchasers, current or
prospective mortgagees, ground or underlying lessors or insurers or, during the
last six (6) months of the Lease Term, tenants, or prospective tenants; (iii)
post notices of nonresponsibility; or (iv) improve or repair the Premises or the
Building, or for structural alterations, repairs or improvements to the Building
or the Building's systems and equipment. Notwithstanding anything to the
contrary contained in this ARTICLE 27, Landlord may enter the Premises at any
time to (A) perform services required of Landlord, including janitorial service;
(B) take possession due to a breach of this Lease as provided in ARTICLE 19; and
(C) during normal business hours, upon forty-eight (48) hours prior notice,
perform any covenants of Tenant which Tenant fails to perform. Landlord may make
any such entries without the abatement of Rent and may take such reasonable
steps as required to accomplish the stated purposes. In connection with any
entry into the Premises, Landlord agrees to make reasonable efforts to minimize
interference with Tenant's operations in the Premises caused by such entry and
to minimize the duration of any such interference. Tenant hereby waives any
claims for damages or for any injuries or inconvenience to or interference with
Tenant's business, lost profits, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned thereby, except with respect to damage
to Tenant's personal property or the amount of any physical injury, but only to
the extent such damage is caused by the negligent acts or omissions or willful
misconduct of Landlord, its agents, employees and contractors, and in such
event, only the extent not covered by Tenant's insurance required to be carried
hereunder. For each of the above purposes, Landlord shall at all times have a
key or card key with which to unlock all the doors in the Premises, excluding
Tenant's vaults, safes and special security areas designated in advance by
Tenant (the "SECURITY AREAS"). Notwithstanding anything set forth in this
ARTICLE 27 to the contrary, Landlord shall have no access or inspection rights
as to the Security Areas, except in the event of an emergency where such entry
is reasonably required. In an emergency, Landlord and its agents, employees and
contractors shall have the right to use any means that Landlord may deem proper
to open the doors in and to the Premises, provided Landlord has reasonably
attempted, but to no avail, to obtain Tenant's immediate cooperation in
connection therewith. Any entry into the Premises by Landlord in the manner
hereinbefore described shall not be deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an actual
46
or constructive eviction of Tenant from any portion of the Premises. No
provision of this Lease shall be construed as obligating Landlord to perform any
repairs, alterations or decorations except as otherwise expressly agreed to be
performed by Landlord herein. Notwithstanding anything to the contrary contained
in this ARTICLE 27, until such systems have been relocated in accordance with
the provisions of SECTIONS 1.5 AND 5.5, above, Landlord may enter the Premises
at any time, upon oral notice to Tenant, to access the Project security system,
fire alarm (if any), and energy management systems located in Building 2.
ARTICLE 28
TENANT PARKING
Tenant and the Tenant's parties (including Tenant's visitors) shall be
entitled to utilize, without charge, and on a non-exclusive basis, commencing on
the Lease Commencement Date, the amount of unreserved and unassigned parking
spaces set forth in SECTION 9 of the Summary; provided, however, that Landlord
shall permit ten (10) of the spaces to which Tenant is entitled under SECTION 9
of the Summary to be reserved as near as possible to the entrance of the
Building for the exclusive use of Tenant's visitors, and Landlord shall install
and maintain signage restricting parking for such exclusive spaces and Tenant
shall reimburse Landlord for the cost of installing, repairing and maintaining
said signs as Additional Rent. Landlord shall have no obligation to police or
enforce the restrictions on the use of said reserved parking spaces. Tenant
shall cooperate with Landlord to ensure that Tenant's agents, servants,
employees, and contractors (collectively, "TENANT PARTIES") comply with the
Rules and Regulations which are prescribed from time to time by Landlord for the
orderly operation and use of the parking areas where the parking spaces are
located, including Tenant's cooperation in seeing that Tenant's employees and
visitors also comply with such Rules and Regulations and Tenant not being in
default under this Lease beyond any applicable notice and cure period. Landlord
specifically reserves the right to make reasonable changes to the size,
configuration, design, layout and all other aspects of the Project parking areas
and improvements at any time upon thirty (30) days' prior written notice to
Tenant and Tenant acknowledges and agrees that Landlord may, without incurring
any liability to Tenant and without any abatement of Rent under this Lease, from
time to time, temporarily close-off or restrict access to portions of the
Project parking areas only for purposes of permitting or facilitating any such
construction, alteration or improvements, not to exceed, without Tenant's
approval, ten (10) business days in any twelve (12) month period; provided,
however, that Landlord will undertake reasonable efforts to minimize the number
of parking spaces affected by and the duration of any such temporary
restrictions on use of the parking areas. In no event shall Tenant's Share of
parking on the Project be permanently reduced below any minimum parking ratio
required under Applicable Laws or in any manner which would materially,
adversely interfere with Tenant's use and occupancy of the Premises. Landlord
may delegate its responsibilities hereunder to a parking operator in which case
such parking operator shall have all the rights of control attributed hereby to
the Landlord. The parking spaces available to Tenant pursuant to this ARTICLE 28
are provided to Tenant solely for use by the Tenant Parties and such spaces may
not be transferred, assigned, subleased or otherwise alienated by Tenant, except
on a pro-rata basis in connection with an assignment or subletting of the
Premises permitted or approved in accordance with the TCCs of ARTICLE 14. Tenant
shall not utilize any of the Project parking areas for the long term (e.g., over
two weeks) storage of vehicles owned by Tenant, its employees, contractors and
consultants.
47
ARTICLE 29
MISCELLANEOUS PROVISIONS
29.1 TERMS; CAPTIONS. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. The necessary grammatical
changes required to make the provisions hereof apply either to corporations or
partnerships or individuals, men or women, as the case may require, shall in all
cases be assumed as though in each case fully expressed. The captions of
Articles and Sections are for convenience only and shall not be deemed to limit,
construe, affect or alter the meaning of such Articles and Sections.
29.2 BINDING EFFECT. Subject to all other provisions of this Lease, each
of the covenants, conditions and provisions of this Lease shall extend to and
shall, as the case may require, bind or inure to the benefit not only of
Landlord and of Tenant, but also of their respective heirs, personal
representatives, successors or assigns, provided this clause shall not permit
any assignment by Tenant contrary to the provisions of ARTICLE 14 of this Lease.
29.3 NO AIR RIGHTS. No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease. If at any time any windows of the Premises are temporarily
darkened or the light or view therefrom is obstructed by reason of any repairs,
improvements, maintenance or cleaning in or about the Project, the same shall be
without liability to Landlord and without any reduction or diminution of
Tenant's obligations under this Lease.
29.4 TRANSFER OF LANDLORD'S INTEREST. Tenant acknowledges that Landlord
has the right to transfer all or any portion of its interest in the Project or
Building and in this Lease, and Tenant agrees that in the event of any such
transfer, Landlord shall automatically be released from all liability under this
Lease not accrued on or prior to the date of the transfer, and Tenant agrees to
look solely to such transferee for the performance of Landlord's obligations
hereunder for events occurring after the date of transfer and to attorn to such
transferee. Tenant further acknowledges that Landlord may assign its interest in
this Lease to a mortgage lender as additional security. Landlord acknowledges
that to the extent any Landlord obligation or liability under this Lease is
accrued prior to the date of such transfer or assignment which is not assumed by
the transferee or assignee, the same shall remain an obligation of Landlord.
29.5 NOTICE OF LEASE. Prior to the Lease Commencement Date, both parties
shall execute and acknowledge a notice of lease in the form attached hereto as
EXHIBIT G (the "Notice of Lease"), to be recorded on the Lease Commencement Date
at Tenant's sole cost and expense.
29.6 LANDLORD'S TITLE. Landlord's title is and always shall be paramount
to the title of Tenant. Nothing herein contained shall empower Tenant to do any
act which can, shall or may encumber the title of Landlord.
29.7 RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall be
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant.
48
29.8 APPLICATION OF PAYMENTS. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease, regardless of Tenant's
designation of such payments, to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord, in its sole discretion, may elect.
29.9 TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.
29.10 PARTIAL INVALIDITY. If any term, provision or condition contained in
this Lease shall, to any extent, be invalid or unenforceable, the remainder of
this Lease, or the application of such term, provision or condition to persons
or circumstances other than those with respect to which it is invalid or
unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
29.11 NO WARRANTY. In executing and delivering this Lease, Tenant has not
relied on any representations (except as specifically set forth in this Lease),
including, but not limited to, any representation as to the amount of any item
comprising Additional Rent or the amount of the Additional Rent in the aggregate
or that Landlord is furnishing the same services to other tenants, at all, on
the same level or on the same basis, or any warranty or any statement of
Landlord which is not set forth herein or in one or more of the exhibits
attached hereto.
29.12 LANDLORD EXCULPATION. The liability of Landlord or the Landlord
Parties to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with Landlord's operation, management, leasing, repair,
renovation, alteration or any other matter relating to the Project or the
Premises shall be limited solely and exclusively to an amount which is equal to
the interest of Landlord in the Project. Neither Landlord, nor any of the
Landlord Parties shall have any personal liability therefor, and Tenant hereby
expressly waives and releases such personal liability on behalf of itself and
all persons claiming by, through or under Tenant. The limitations of liability
contained in this SECTION 29.12 shall inure to the benefit of Landlord's and the
Landlord Parties' present and future partners, beneficiaries, officers,
directors, trustees, shareholders, agents and employees, and their respective
partners, heirs, successors and assigns. Under no circumstances shall any
present or future partner of Landlord (if Landlord is a partnership), or trustee
or beneficiary (if Landlord or any partner of Landlord is a trust), or member
(if Landlord is a limited liability company) have any liability for the
performance of Landlord's obligations under this Lease. Notwithstanding any
contrary provision herein, neither Landlord nor the Landlord Parties shall be
liable under any circumstances for injury or damage to, or interference with,
Tenant's business, including but not limited to, loss of profits, loss of rents
or other revenues, loss of business opportunity, loss of goodwill or loss of
use, in each case, however occurring.
29.13 ENTIRE AGREEMENT. It is understood and acknowledged that there are no
oral agreements between the parties hereto affecting this Lease and this Lease
constitutes the parties' entire agreement with respect to the leasing of the
Premises and supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between the
parties hereto or displayed by Landlord to Tenant with respect to the subject
matter
49
thereof, and none thereof shall be used to interpret or construe this Lease.
None of the TCCs of this Lease can be modified, deleted or added to except in
writing signed by the parties hereto.
29.14 RIGHT TO LEASE. Landlord reserves the absolute right to effect such
other tenancies in the Project as Landlord in the exercise of its sole business
judgment shall determine to best promote the interests of the Building or
Project. Tenant does not rely on the fact, nor does Landlord represent, that any
specific tenant or type or number of tenants shall, during the Lease Term,
occupy any space in the Building or Project.
29.15 FORCE MAJEURE. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God (including inclement weather), inability
to obtain utilities (subject to the provisions of SECTION 6.3), labor, or
materials or reasonable substitutes therefor, governmental actions, civil
commotions, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, except with respect to the
obligations imposed with regard to Rent and other charges to be paid by Tenant
pursuant to this Lease (collectively, a "FORCE MAJEURE"), notwithstanding
anything to the contrary contained in this Lease, shall excuse the performance
of such party for a period equal to any such prevention, delay or stoppage and,
therefore, if this Lease specifies a time period for performance of an
obligation of either party, that time period shall be extended by the period of
any delay in such party's performance caused by a Force Majeure; provided,
however, such extension shall not exceed sixty (60) consecutive days.
29.16 NOTICES. All notices, demands, statements, designations, approvals or
other communications (collectively, "NOTICES") given or required to be given by
either party to the other hereunder or by law shall be in writing, shall be (A)
sent by United States certified or registered mail, postage prepaid, return
receipt requested ("MAIL"), (B) transmitted by telecopy, if such telecopy is
promptly followed by a Notice sent by Mail, (C) delivered by a nationally
recognized overnight courier, or (D) delivered personally. Any Notice shall be
sent, transmitted, or delivered, as the case may be, to Tenant at the
appropriate address set forth in SECTION 10 of the Summary, or to such other
place as Tenant may from time to time designate in a Notice to Landlord, or to
Landlord at the addresses set forth below, or to such other places as Landlord
may from time to time designate in a Notice to Tenant. Any Notice will be deemed
given (i) three (3) days after the date it is posted if sent by Mail, (ii) the
date the telecopy is transmitted, (iii) the date the overnight courier delivery
is made, or (iv) the date personal delivery is made or attempted to be made. If
Tenant is required under any separate written agreement between Tenant and a
mortgagee or ground lessor to notify such party of any default by Landlord under
this Lease, then Tenant shall give to such mortgagee or ground or underlying
lessor written notice of any default by Landlord under the TCCs of this Lease by
registered or certified mail, and such mortgagee or ground or underlying lessor
shall be given a reasonable opportunity to cure such default prior to Tenant's
exercising any remedy available to Tenant. As of the date of this Lease, any
Notices to Landlord and Tenant must be sent, transmitted, or delivered, as the
case may be, to the following addresses:
50
LANDLORD:
Marlborough Campus Limited Partnership
000 Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
with copies to:
c/o Berwind Property Group, Ltd.
0000 Xxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
General Counsel
TENANT:
3Com Corporation
0000 Xxxxxxxx Xxxxx, Xxxx Xxxx 0000
Xxxxx Xxxxx, XX 00000
Attention: Real Estate Department
with copies to:
3Com Corporation
0000 Xxxxxxxx Xxxxx, Xxxx Xxxx 0000
Xxxxx Xxxxx, XX 00000
Attention: Legal Department
29.17 JOINT AND SEVERAL. If there is more than one Tenant, the obligations
imposed upon Tenant under this Lease shall be joint and several.
29.18 AUTHORITY. Each individual executing this Lease hereby represents and
warrants that Landlord or Tenant, as applicable, is a duly formed and existing
entity qualified to do business in the Commonwealth of Massachusetts and has
full right and authority to execute and deliver this Lease and that each person
signing on behalf of Landlord or Tenant is authorized to do so.
29.19 ATTORNEYS' FEES. In the event that either Landlord or Tenant should
bring suit for the possession of the Premises, for the recovery of any sum due
under this Lease, or because of the breach of any provision of this Lease or for
any other relief against the other, then all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party therein shall be
paid by the other party, which obligation on the part of the other party shall
be deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or not the action is prosecuted to judgment.
51
29.20 GOVERNING LAW. This Lease shall be construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts. Except as
otherwise provided herein, all disputes arising hereunder, and all legal actions
and proceedings related thereto, shall be solely and exclusively initiated and
maintained in the court with the appropriate jurisdiction located in the City of
Marlborough, County of Middlesex, Commonwealth of Massachusetts. IN ANY ACTION
OR PROCEEDING ARISING HEREFROM, LANDLORD AND TENANT HEREBY CONSENT TO (I) THE
JURISDICTION OF ANY COMPETENT COURT WITHIN THE COMMONWEALTH OF MASSACHUSETTS,
AND (II) SERVICE OF PROCESS BY ANY MEANS AUTHORIZED BY MASSACHUSETTS LAW. IN THE
EVENT LANDLORD COMMENCES ANY SUMMARY PROCEEDINGS OR ACTION FOR NONPAYMENT OF
BASE RENT OR ADDITIONAL RENT, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF ANY
NATURE OR DESCRIPTION (UNLESS SUCH COUNTERCLAIM SHALL BE MANDATORY) IN ANY SUCH
PROCEEDING OR ACTION, BUT SHALL BE RELEGATED TO AN INDEPENDENT ACTION AT LAW.
29.21 SUBMISSION OF LEASE. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of, option for or option
to lease, and it is not effective as a lease or otherwise until execution and
delivery by both Landlord and Tenant.
29.22 BROKERS. Landlord and Tenant hereby warrant to each other that they
have had no dealings with any real estate broker or agent in connection with the
negotiation of this Lease, excepting only the real estate brokers or agents
specified in SECTION 12 of the Summary (the "BROKERS"), and that they know of no
other real estate broker or agent who is entitled to a commission in connection
with this Lease. Each party agrees to indemnify and defend the other party
against and hold the other party harmless from any and all claims, demands,
losses, liabilities, lawsuits, judgments, costs and expenses (including without
limitation reasonable attorneys' fees) with respect to any leasing commission or
equivalent compensation alleged to be owing on account of any dealings with any
real estate broker or agent, other than the Brokers, occurring by, through, or
under the indemnifying party.
29.23 INDEPENDENT COVENANTS. This Lease shall be construed as though the
covenants herein between Landlord and Tenant are independent and not dependent
and Tenant hereby expressly waives the benefit of any statute to the contrary
and agrees that if Landlord fails to perform its obligations set forth herein,
Tenant shall not be entitled to make any repairs or perform any acts hereunder
at Landlord's expense except as expressly provided in SECTIONS 7.1 AND 19.6, or
to any setoff of the Rent or other amounts owing hereunder against Landlord, and
Tenant shall have no right to any abatement of Rent except as expressly provided
in SECTIONS 6.3, 11.1 and 13.1.
29.24 PROJECT OR BUILDING NAME AND SIGNAGE. Landlord shall have the right
at any time to change the name of the Project or Building and to install, affix
and maintain any and all signs on the exterior and on the interior of the
Project or Building as Landlord may, in Landlord's sole discretion, desire.
Tenant shall not use the name of the Project or Building or use pictures or
illustrations of the Project or Building in advertising or other publicity or
for any purpose other than as the address of the business to be conducted by
Tenant in the Premises, without the prior written consent of Landlord.
52
29.25 COUNTERPARTS. This Lease may be executed in counterparts with the
same effect as if both parties hereto had executed the same document. Both
counterparts shall be construed together and shall constitute a single lease.
29.26 CONFIDENTIALITY. Tenant hereby acknowledges that the contents of this
Lease and any related documents are confidential information. Tenant shall keep
such confidential information strictly confidential and shall not disclose such
confidential information to any person or entity other than Tenant's partners,
administrators, consultants, financial, legal, and space planning consultants, a
prospective Transferee, and except as required by Applicable Law or in
connection with a dispute or litigation hereunder or as required by subpoena.
29.27 TRANSPORTATION MANAGEMENT. Tenant shall comply with all present or
future programs required by Applicable Law (provided Landlord provides Tenant
with sufficient prior notice of such program's requirements) which are intended
to manage parking, transportation or traffic in and around the Project, and in
connection therewith, Tenant shall take responsible action for the
transportation planning and management of all employees located at the Premises
by working directly with Landlord, any governmental transportation management
organization or any other transportation-related committees or entities.
29.28 BUILDING RENOVATIONS. Except as expressly set forth in SECTION 1.1,
Landlord has no obligation and has made no promises to alter, remodel, improve,
renovate, repair or decorate the Premises, Building, or any part thereof and
Tenant acknowledges that, except as expressly set forth in SECTION 5.4, no
representations or warranties respecting the condition of the Premises or the
Building have been made by Landlord to Tenant. However, Tenant hereby
acknowledges that Landlord may during the Lease Term renovate, improve, alter,
or modify (collectively, the "RENOVATIONS") the Project, the Building and/or the
Premises including without limitation the parking structure, Common Areas,
systems and equipment, roof, and structural portions of the same. Tenant hereby
agrees that such Renovations and Landlord's actions in connection with such
Renovations shall in no way constitute a constructive eviction of Tenant nor
entitle Tenant to any abatement of Rent except as expressly provided in SECTION
6.3. Landlord shall have no responsibility or for any reason be liable to Tenant
for any direct or indirect injury to or interference with Tenant's business
arising from the Renovations, nor shall Tenant be entitled to any compensation
or damages from Landlord for loss of the use of the whole or any part of the
Premises or of Tenant's personal property or improvements resulting from the
Renovations or Landlord's actions in connection with such Renovations, or for
any inconvenience or annoyance occasioned by such Renovations or Landlord's
actions provided the performance of such Renovations does not materially
adversely interfere with Tenant's use or occupancy of the Premises, the Project
or the Common Areas for the Permitted Use.
29.29 NO VIOLATION. Landlord and Tenant hereby warrant and represent that
neither its execution of nor performance under this Lease shall cause either
party to be in violation of any agreement, instrument, contract, law, rule or
regulation by which it is bound, and each party shall protect, defend, indemnify
and hold the other harmless against any claims, demands, losses, damages,
liabilities, costs and expenses, including, without limitation, reasonable
attorneys' fees and costs, arising from Tenant's breach of this warranty and
representation.
53
29.30 COMMUNICATIONS AND COMPUTER LINES. Tenant shall have the use of, and
right of access upon reasonable advance written notice to Landlord to maintain,
any existing communications or computer wires and cables (collectively, the
"LINES") located in the Building and connecting the Building to the Building 4
Dish and the Conference Facilities, and, subject to the provisions of ARTICLE 8
(including, without limitation, Landlord's conditioning its approval upon the
restoration of any portion of the Project disturbed by such installation) shall
have the right at its sole cost and expense to install and maintain its own
additional wires, cables, conduits, auxiliary equipment and other related
equipment and facilities from the public street into the Project, the Building
and the Premises, and between the Building and the Conference Facilities.
29.31 HAZARDOUS SUBSTANCES.
29.31.1 DEFINITIONS. For purposes of this Lease, the following
definitions shall apply: "HAZARDOUS MATERIAL(S)" shall mean any substance or
material that is described as a toxic or hazardous substance, waste, material,
pollutant, contaminant or infectious waste, or any matter that in certain
specified quantities would be injurious to the public health or welfare, or
words of similar import, in any of the "Environmental Laws," as that term is
defined below in this SECTION 29.31.1, or any other words which are intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity or reproductive
toxicity and includes, without limitation, asbestos, petroleum (including crude
oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural
gas, or synthetic gas usable for fuel, or any mixture thereof), petroleum
products, polychlorinated biphenyls, urea formaldehyde, radon gas, radioactive
matter, medical waste, and chemicals which may cause cancer or reproductive
toxicity. "ENVIRONMENTAL LAWS" shall mean all federal, state, commonwealth,
local and quasi-governmental laws (whether under common law, statute or
otherwise), ordinances, decrees, codes, rulings, awards, rules, regulations and
guidance documents now or hereafter be enacted or promulgated as amended from
time to time, in any way relating to or regulating Hazardous Materials.
29.31.2 COMPLIANCE WITH ENVIRONMENTAL LAWS. Tenant covenants
that during the Lease Term, Tenant shall comply with all Environmental Laws
pertaining to its use of the Premises and the Project. Tenant shall not use,
store, handle or dispose of any Hazardous Materials, other than standard office
products in quantities and of types consistent with tenants of Comparable
Buildings, all of which shall be used, stored, handled and disposed of in
accordance with applicable Environmental Laws.
29.31.3 INDEMNIFICATION. Tenant agrees to indemnify, defend,
protect and hold harmless the Landlord Parties from any and all Claims arising
from any Hazardous Materials to the extent placed in, on, under or about the
Premises or the Project by Tenant or Tenant Parties during or after the Lease
Term. Landlord agrees to indemnify, defend, protect and hold harmless the Tenant
Parties from any and all Claims arising from any Hazardous Materials released,
stored, used or discharged by Landlord, its employees, agents and contractors,
prior to the Lease Commencement Date or during the Lease Term.
54
29.32 DEVELOPMENT OF THE PROJECT.
29.32.1 SUBDIVISION. Subject to the requirements of ARTICLE 28,
Landlord reserves the right to further subdivide all or a portion of the Project
and to add to, remove, or otherwise change the parking areas and Common Areas.
In the event of any such change, an equitable adjustment to the Tenant's Share,
if appropriate, shall be made.
29.32.2 OTHER IMPROVEMENTS. If portions of the Project or
property adjacent to the Project (collectively, the "OTHER IMPROVEMENTS") are
owned by an entity other than Landlord, Landlord, at its option, may enter into
an agreement with the owner or owners of any or all of the Other Improvements to
provide (i) for reciprocal rights of access and/or use of the Project and the
Other Improvements, (ii) for the common management, operation, maintenance,
improvement and/or repair of all or any portion of the Project and the Other
Improvements, (iii) for the allocation of a portion of the Direct Expenses to
the Other Improvements and the operating expenses and taxes for the Other
Improvements to the Project, and (iv) for the use or improvement of the Other
Improvements and/or the Project in connection with the improvement,
construction, and/or excavation of the Other Improvements and/or the Project.
Nothing contained herein shall be deemed or construed to limit or otherwise
affect Landlord's right to convey all or any portion of the Project or any other
of Landlord's rights described in this Lease.
29.32.3 CONSTRUCTION OF PROJECT AND OTHER IMPROVEMENTS. Tenant
acknowledges that portions of the Project and/or the Other improvements may be
under construction following Tenant's occupancy of the Premises, and that such
construction may result in levels of noise, dust, obstruction of access, etc.
which are in excess of that present in a fully constructed project. Tenant
hereby waives any and all rent offsets or claims of constructive eviction which
may arise in connection with such construction, provided such construction by
Landlord does not interfere with Tenant's use or occupancy of the Premises, the
Project or the Common Areas for the Permitted Use.
29.33 NO CONSEQUENTIAL DAMAGES. Notwithstanding any provision of this Lease
to the contrary, except as specifically set forth in ARTICLE 16 of this lease,
under no circumstances shall either party hereto be liable to the other party
for any consequential, incidental or special damages.
29.34 WAIVER OF LANDLORD'S LIEN. Landlord understands that Tenant may lease
and/or purchase with purchase money financing certain of the Alterations,
fixtures and equipment which may be installed in or used in connection with the
Premises from time to time during the Lease Term. Landlord hereby agrees, upon
written request of Tenant, to release, waive or subordinate any landlord's lien
to any such equipment leases, retained title contracts, security interest or
other forms of purchase money financing and within ten (10) business days after
Tenant's written request, to execute documents, in form and substance reasonably
satisfactory to Landlord, that permit the equipment lessors, title and lien
holders, as applicable, the right to enter the Premises during the Lease Term
for the sole purpose of exercising their rights to such Alterations, fixtures
and equipment subject to such leases, retained title contracts, security
interest or other forms of purchase money financing and to foreclose upon and
remove such collateral from the Premises, provided that any damage to the
Premises caused by such removal is promptly repaired and restored.
55
29.35 COMPLIANCE WITH TIF AGREEMENT. Landlord and Tenant acknowledge that
there is a Tax Increment Financing Agreement by and between the City of
Marlborough and BNP Leasing Corporation dated January 31, 1997, as amended by an
Agreement by and between the City of Marlborough and
3Com Corporation dated
February 25, 2002, concerning the Property (the "TIF Agreement"). Tenant agrees
to comply with the provisions of the TIF Agreement that pertain to
3COM
Corporation and to provide such information as may reasonably be requested by
Landlord to facilitate Landlord's compliance with any requirements of the TIF
Agreement. Landlord agrees to take reasonably commercial steps, at no cost or
expense to Landlord, to maintain the benefits of the TIF Agreement.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed the day and date first above written.
"LANDLORD":
MARLBOROUGH CAMPUS LIMITED
PARTNERSHIP, a Massachusetts limited
partnership
By: /s/ Signature Illegible
------------------------------
Its: Vice President
-----------------------
"TENANT":
3COM CORPORATION,
a Delaware corporation
Attest:
By: /s/ Xxxx X. Xxxxxxx
--------------------------
By: /s/ Xxxxx xxx Xxxxxxxx Name: Xxxx X. Xxxxxxx
----------------------------
Name: Xxxxx xxx Xxxxxxxx Title: SVP, General Counsel, Secretary
Title: Sr. Mgr. Real Estate and (Corporate Seal)
Site Services
56
(ACKNOWLEDGMENT FOR CORPORATION)
STATE OF CALIFORNIA
SS.:
COUNTY OF SANTA XXXXX
BE IT REMEMBERED, that on this 20th day of Novmeber, 2002, before me, the
subscriber, a Notary Public of the State of California personally appeared Xxxx
X. Xxxxxxx, who, being by me duly sworn on his oath, does depose and make proof
to my satisfaction that he is the Secretary of
3Com Corporation, the Tenant
named in the foregoing Lease; that the execution of the foregoing Lease was duly
authorized; and the seal affixed to said instrument is the corporate seal and
was thereto affixed and said instrument signed and delivered by said Secreary,
as and for his voluntary act and deed and as for the voluntary act and deed of
said corporation, in presence of deponent, who thereupon subscribed his name
thereto as witness.
Subscribed and sworn to
before me on the date aforesaid.
/s/ Xxxxxxx Xxxxxx
------------------
Notary Public
(Notarial Seal)
57
EXHIBIT A
OUTLINE OF PREMISES
EXHIBIT A-1
LOADING DOCK AREA
EXHIBIT B
PROJECT SITE PLAN
EXHIBIT C
INVENTORY LIST
EXHIBIT C-1
EXCLUDED PERSONAL PROPERTY
EXHIBIT D
RULES AND REGULATIONS
BUILDING RULES AND REGULATIONS
The following rules and regulations (collectively, the "Rules") shall apply,
where applicable, to the Premises, the Building, the parking lot, the Project
and the appurtenances thereto:
A. GENERAL
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter, trash,
or material of any nature shall be placed, emptied, or thrown in those
areas. At no time shall Tenant permit Tenant's employees, contractors or
other representatives to loiter in common areas or elsewhere in or about the
Building or Project.
2. Any Tenant or vendor sponsored activity or event in Common Area must be
approved and scheduled through Landlord's representative.
3. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable material
shall be thrown or placed therein. Tenant shall pay for damage resulting to
any such fixtures or appliances from misuse by Tenant or its agents,
employees or invitees, and Landlord shall not in any case be responsible
therefor.
4. Alcoholic beverages (without Landlord's prior written consent), illegal
drugs or other illegal controlled substances are not permitted in the
Building nor will any person under the influence of the same be permitted in
the Building.
5. No firearms or other weapons are permitted in the Building.
6. No fighting or "horseplay" will be tolerated at any time in the Building.
7. Fire protection and prevention practices implemented by Landlord from time
to time, including participation in fire drills, must be observed by Tenant
at all times.
8. Tenant shall not operate or disturb any Building equipment, machinery,
valves or electrical controls.
9. Tenant shall not cause any unnecessary janitorial labor or services by
reason of Tenant's carelessness or indifference in the preservation of good
order and cleanliness.
10. No signs, advertisements or notices shall be painted or affixed on or to any
windows, doors or other parts of the Building unless approved in writing by
Landlord.
11. Landlord shall have the power to prescribe the weight and position of safes
and other heavy equipment or items, which in all cases shall not in the
opinion of Landlord exceed acceptable floor loading and weight distribution
requirements. All damage done to the Building by the installation,
maintenance, operation, existence or removal of any property of Tenant shall
be repaired at the expense of Tenant.
12. No animals, except seeing-eye dogs, shall be brought into or kept in, on or
about the Premises.
13. Tenant shall not take any action which would violate Landlord's labor
contracts affecting the Building or which would cause any work stoppage,
picketing, labor disruption or dispute, or any interference with the
business of Landlord or any other tenant or occupant of the Building or with
the rights and privileges of any person lawfully in the Building. Tenant
shall take any actions necessary to resolve any such work stoppage,
picketing, labor disruption, dispute or interference and shall have pickets
removed and, at the request of Landlord, immediately terminate at any time
any construction work being performed in the Premises giving rise to such
labor problems, until such time as Landlord shall have given its written
consent for such work to resume, which consent shall not be unreasonably
withheld, conditioned or delayed. Tenant shall have no claim for damages of
any nature against Landlord in connection therewith.
14. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's opinion may
tend to impair the reputation of the Building or its desirability for
Landlord or other tenants. Upon written notice from Landlord, Tenant will
refrain from and/or discontinue such publicity immediately.
15. Smoking and discarding of smoking materials are permitted in designated
exterior locations only. No smoking is permitted outside the building
entrances. Tenant will instruct and notify its visitors and employees of
such policy.
16. No awnings or other projections shall be attached to the outside walls
(building perimeter) of the Building. No curtains, blinds, shades, or
screens shall be attached to or hung in, or used in connection with, any
window or door of the Premises, without the prior written consent of
Landlord, in Landlord's sole discretion. Window coverings must be Building
Standard.
17. Tenant shall cooperate with the Landlord to conserve energy. Before closing
and leaving the Premises at any time, Tenant shall exercise reasonable
efforts to minimize energy use by turning off lights and equipment not in
use.
18. There shall not be used in any space, or in the public halls of the
Building, either by any Tenant or by delivery personnel or others, in the
delivery or receipt of merchandise, any hand trucks, except those equipped
with rubber tires and sole guards.
2
19. Tenant shall not use the Premises for housing, lodging or sleeping purposes
or permit preparation or warming of food in the Premises (except in Landlord
provided or approved equipment such as microwave ovens and toaster ovens).
Tenant shall not occupy or use the Premises or permit the Premises to be
occupied or used for any purpose or act that is in violation of any
governmental legal requirement or may be dangerous to persons or property.
20. Tenant shall not make or permit any noise, vibration or odor to emanate from
the Premises, or do anything that will create or maintain a nuisance, or do
any act injuring the reputation of the Building.
21. Tenant shall not disturb any other Building occupants.
22. Tenant shall not install or operate any musical or sound producing
instrument or device, radio receiver or transmitter, TV receiver or
transmitter, or similar device in the Premises, nor install or operate any
antenna, aerial, wires or other equipment inside or outside the Premises,
nor operate any electrical device from which may emanate electrical waves
which may interfere with or impair radio or television broadcasting or
reception from or in the Premises or elsewhere, without in each instance,
the prior written approval of Landlord. The use thereof, if permitted, shall
be subject to control by Landlord to the end that others shall not be
disturbed.
23. Tenant shall provide Landlord in writing the names and contact information
of two (2) representatives authorized by the Tenant to request Landlord
services, either billable or non billable and to act as a liaison for
matters related to the Premises.
B. BUILDING ACCESS & SECURITY
1. No additional locks shall be placed upon any doors, windows or transoms in
or to the Premises, nor shall Tenant change existing locks or the mechanism
thereof, without Landlord's permission, which permission shall not be
unreasonably withheld, conditioned or delayed.
2. Tenant shall not use or occupy the Premises in any manner or for any purpose
which would injure the reputation or impair the present or future value of
the Premises or the Building.
3. Bicycles and other vehicles are not permitted inside or on the walkways
outside the Building, except in those areas specifically designated by
Landlord for such purposes.
4. Landlord may from time to time adopt appropriate systems and procedures for
the security or safety of the Building, its occupants, entry and use, or its
contents, and shall provide Tenant with notice thereof. Tenant, Tenant's
agents, employees, contractors, guests and invitees shall comply with
Landlord's reasonable requirements relative thereto.
5. Canvassing, soliciting, and peddling in or about the Building is prohibited.
Tenant, its employees, agents and contractors shall cooperate with said
policy, and Tenant shall use its best efforts to prevent the same by
Tenant's invitees.
3
6. Tenant and its employees, agents, contractors, invitees and licensees are
limited to the Premises and the Common Areas. Tenant and its employees,
agents, contractors, invitees and licensees may not enter other areas of the
Building or Project (other than the conference rooms) except when
accompanied by an escort from Landlord and shall sign in/out at building
reception.
7. Tenant acknowledges that Building security problems may occur which may
require the employment of extreme security measures in the day-to-day
operation of the Building. Accordingly, Tenant agrees to cooperate and cause
its employees, contractors and other representatives to cooperate fully with
Landlord in the implementation of any reasonable security procedures.
8. Tenant shall comply with all federal, state and local, criminal, civil,
safety, health and environmental codes, laws, and ordinances relating to its
use of leased space.
C. MAINTENANCE & CUSTODIAL
1. All contractors, contractor's representatives, and installation technicians
performing work in the Building shall be subject to Landlord's written prior
approval and shall be required to comply with Landlord's standard rules,
regulations, policies, and procedures, as the same may be revised from time
to time. Tenant shall be solely responsible for complying with all
applicable laws, codes and ordinances pursuant to which said work shall be
performed.
2. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, any electrical equipment which does not bear the
U/L (Underwriters Laboratories) seal of approval, or which would overload
the electrical system or any part thereof beyond its capacity for proper,
efficient and safe operation as determined by Landlord, taking into
consideration the overall electrical system and the present and future
requirements therefor in the Building. Tenant shall not operate personal
electronic devices for individual use such as coffeepots, toasters,
refrigerators, space heaters, etc. without Landlord's prior written
approval, which approval shall not be unreasonably withheld, conditioned or
delayed.
D. SHIPPING/RECEIVING/LOADING DOCKS
1. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which require
the use of elevators, stairways, lobby areas, or loading dock areas, shall
be restricted to the hours between 6 a.m. and 9 p.m., Monday through Friday,
excluding Holidays. Tenant is to assume all risk for damage to articles
moved and injury to any persons resulting from such activity. If any
equipment, property, and/or personnel of Landlord or of any other tenant of
the Building is damaged or injured as a result of or in connection with such
activity, Tenant shall be solely liable for any and all damage or loss to
the extent directly resulting therefrom.
2. All deliveries to or from the Premises shall be made only at such times, in
the areas and through the entrances and exits designated for such purposes
by Landlord. Tenant shall not permit the process of receiving deliveries to
or from the Premises outside of said areas or in a
4
manner that may interfere with the use by any other tenant of its premises
or of any Common Areas, any pedestrian use of such area, or any use that is
inconsistent with good business practice.
3. All Tenant mail and small packages will be scheduled for pick-up and
delivery by carrier or supplier to and from the Premises.
4. Landlord personnel will not load/unload cargo deliveries for Tenant from the
dock.
5. Tenant arranged shipping/receiving location outside the Premises to be
approved by Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed. Dock areas shall not be used for storage or staging
by Tenant.
6. The following rules and regulations apply to all loading docks which are
available for the use of more than one tenant (and shall not apply to
loading docks intended for the exclusive use of any tenant): No tenant shall
park or permit any truck or trailer to be parked in any loading dock area
except during the time actually need to load or unload materials. In no case
shall any truck or trailer be permitted to remain in a loading dock area
overnight. If any tenant has been utilizing the loading dock are for a time
period in excess of one hour and another tenant requires access to the
loading dock area, the first tenant shall vacate the loading dock area and
make it available to the second tenant. No tenant may utilize more than one
loading dock at a time if another tenant requires access to the loading dock
and a loading dock is not available for the second tenant's use.
E. FOOD SERVICE
1. No open flame cooking or competing food service or vending machines will be
permitted in the Premises.
2. Tenant shall not remove food service property from the cafe including trays,
dishes, glasses, cups, utensils. Disposal utensils are provided.
F. RULES FOR USE OF ACCESS CARDS
Each of Tenant's employees and on-site contractors shall be issued an access
card. The access card serves as a "key" that allows access to card reader
controlled doors.
The access card will ONLY act as a key on doors leading to the Premises and
Common Areas. Care should be used to prevent excessive bending or abuse that may
cause damage to the card.
1. Do not allow others to use your card.
2. Report a lost, stolen, or damaged card immediately.
3. If a door is equipped with a card reader - use the reader to access. Do not
"prop" doors open to bypass the system.
4. A "Tailgater" is an individual without an access card who follows an
employee in or out of a
5
door after that employee has used their card to access a door. Tailgating is
not allowed.
5. If Landlord provides Tenant with any access cards or badges, a fee of $20.00
will be charged for each badge or access card issued.
6. In all cases, Tenant agrees to promptly notify Landlord when access badges
are to be deactivated in cases such as termination, non-use, lost badge,
etc.
6
EXHIBIT E-1
TENANT ESTOPPEL CERTIFICATE
Date [Name and Address of Landlord and Third Party or Parties]
It is our understanding that you are purchasing from
_______________________________ ("Landlord"), [and/or are providing financing
in connection with the acquisition or refinancing of the] property located at
_________________, ____________________________, Massachusetts (the "Property")
and in connection therewith have required this certification by the undersigned.
Reference is made to a Lease dated ________________, between Landlord and the
undersigned as Tenant (the "Lease") for certain premises (the "Premises")
located at the Property. The undersigned, as Tenant, hereby certifies that:
1. The term of the Lease commenced on __________, 2002 (the "Commencement
Date") and ends on __________, 20__ (the "Expiration Date"). Tenant has no
right to renew or extend the term of the Lease, except as follows: _______
2. The undersigned has accepted and presently occupies the premises described
in the Lease as Tenant.
3. The Base Rent under the Lease is currently $__________________ per month,
and has been paid through __________________, 20__. Tenant currently pays
$______ per month as its estimated Share of Operating Expenses in excess of
Operating Expenses for ____ (which is the Base Year), and $_______ per month
as its estimated Share of Tax Expenses in excess of Tax Expenses for fiscal
year July, 200__ to June, 20__.
4. The Lease is in full force and effect and has not been assigned, modified,
supplemented or amended in any way and, to the knowledge of the undersigned,
neither party is in default thereunder, and no event has occurred which,
with the giving of notice or passage of time, or both, could result in a
default except as follows: _________
5. The Lease represents the entire agreement between Landlord and the
undersigned.
6. On this date, there are no existing defenses or offsets which the
undersigned has against the enforcement of the Lease by Landlord.
7. The undersigned Tenant is [is not] in occupancy of all or a portion of the
premises described in the Lease and is [is not] actually conducting its
business therein, which business is the use permitted under the Lease.
Tenant has not sublet nor assigned its interest in the Lease except as
follows: _______
8. No rent has been paid more than one month in advance of its due date under
the Lease.
9. Landlord does not hold any security deposit under the Lease.
10. Tenant has no option or right of first refusal to purchase all or any
portion of the Property, no option(s) to expand, nor any option to terminate
the Lease prior to the Expiration Date except as follows: ____________
11. All construction, alterations or improvements required to be performed by
Landlord have been completed and any payments, credits or abatements
required to be given by Landlord to Tenant have been given.
12. To Tenant's knowledge, subject to the provisions of Section 4.4 of the
Lease, no refunds or other credits are due to Tenant for Direct Expenses (as
defined in the Lease) paid to Landlord as additional rent for any calendar
years ending on or before December 31, 200__.
13. No actions have been filed by or are pending against Tenant under the
bankruptcy laws of the United States or any state thereof.
15. The signatory below is authorized to execute this Estoppel Certificate on
behalf of Tenant.
Executed as an instrument under seal on __________, 20__.
Very truly yours,
---------------------------------
Tenant
2
EXHIBIT E-2
LANDLORD ESTOPPEL CERTIFICATE
Date [Name and Address of Tenant and Third Party or Parties]
Reference is made to a Lease dated ________________, between
____________________ as Landlord and 3 Com Corporation as Tenant (the "Lease")
for certain premises (the "Premises") located at _______________________ (the
"Property"). The undersigned, as Landlord, hereby certifies that:
1. The term of the Lease commenced on __________, 20__ and ends on __________,
20__ (the "Expiration Date"). Tenant has no right to renew or extend the
term of the Lease, except as follows: _______
2. The Base Rent under the Lease is currently $__________________ per month,
and has been paid through __________________, 20__. Tenant currently pays
$______ per month as its estimated Share of Operating Expenses in excess of
Operating Expenses for ____ (which is the Base Year), and $_______ per month
as its estimated Share of Tax Expenses in excess of Tax Expenses for the
Base Year.
3. The Lease is in full force and effect and has not been assigned, modified,
supplemented or amended in any way and, to the knowledge of the undersigned,
neither party is in default thereunder, and no event has occurred which,
with the giving of notice or passage of time, or both, could result in a
default except as follows: _________
4. The Lease represents the entire agreement between Landlord and Tenant.
5. Landlord does not hold any security deposit under the Lease
6. The signatory below is authorized to execute this Estoppel Certificate on
behalf of Landlord.
Executed as an instrument under seal on __________, 20__.
Very truly yours,
-------------------------------
Landlord
EXHIBIT F
PLAN OF THE INTERIM PREMISES
EXHIBIT G
RECORDING REQUESTED BY:
WHEN RECORDED, RETURN TO:
Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attention.: Xxxxxx X. Xxxxxxx, Esq.
NOTICE OF LEASE
THIS NOTICE OF LEASE is made as of the __ day of _______, 2002, by and
between ____________________________, a ______________________ ("Landlord"),
having offices at GSB Building, Xxxxx 000, Xxx Xxxxxxx Xxxxxx, Xxxx Xxxxxx, XX
00000, and
3Com Corporation, a Delaware corporation, having an office and place
of business at 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000 ("Tenant").
WITNESSETH:
1. This is a Notice of Lease concerning a Lease entered into as of_______,
2002 between Landlord and Tenant (the "Lease"), pursuant to which, and subject
to the terms of which, Tenant has the right to occupy a portion of the
improvements (the "Premises") located on the real property situated in the Town
of Marlborough, Middlesex County, Massachusetts, as more particularly described
on Exhibit "A" attached hereto and made a part hereof, for a Term of
approximately four (4) years commencing on the date hereof.
2. Tenant has ___ options to extend the Term of the Lease for a period of _
years each.
3. The Term of the Lease shall expire at 11:59 p.m. (local time in
Massachusetts) on __________________, 2006, unless Tenant timely exercises the
option(s) to extend.
4. The purpose of this Notice of Lease is to provide constructive notice of
the Lease and interested parties must refer to the Lease for a full statement of
the respective rights and obligations of the parties. This Notice of Lease shall
not be deemed to change, modify or otherwise affect any of the provisions of the
Lease.
5. This Notice of Lease shall bind and or inure to the benefit not only of
Landlord and of Tenant, but also of their respective heirs, personal
representatives, successors or assigns,
provided this clause shall not permit any assignment by Tenant contrary to the
provisions of ARTICLE 14 of the Lease.
IN WITNESS WHEREOF, Landlord has caused this instrument to be signed by its
duly authorized officer and Tenant has caused this instrument to be executed by
its duly authorized officer as of the day and year first above written.
LANDLORD:
----------------------------
(CORPORATE SEAL) By:
Attest/Witness: --------------------------
By:
------------------------------ -----------------------------
Name:
Title:
TENANT:
3Com Corporation
(CORPORATE SEAL)
Attest/Witness:
By:
------------------------------ ------------------------------------
Name: Name:
Title:
2
STATE OF __________________
SS.:
COUNTY OF _________________
BE IT REMEMBERED, that on this _____ day of ______, 2002, before me, the
subscriber, a Notary Public of the State of ____________________personally
appeared _____________________________, who, being by me duly sworn on his oath,
does depose and make proof to my satisfaction that he is the ______________
Secretary of 3Com Corporation, the Tenant named in the foregoing Notice of
Lease; that _______________________ is ____President of said corporation; that
the execution of the foregoing Notice of Lease was duly authorized; and the seal
affixed to said instrument is the corporate seal and was thereto affixed and
said instrument signed and delivered by said __________________ President, as
and for his voluntary act and deed and as for the voluntary act and deed of said
corporation, in presence of deponent, who thereupon subscribed his name thereto
as witness.
Subscribed and sworn to
before me at ___________,
on the date aforesaid.
--------------------------
Secretary
---------------------------
Notary Public
(Notarial Seal)
3
COMMONWEALTH OF ______________
SS.:
COUNTY OF _________________
BE IT REMEMBERED, that on this _____ day of ______, 2002, before me, the
subscriber, a Notary Public of the State of ____________________personally
appeared _____________________________, who, being by me duly sworn on his oath,
does depose and make proof to my satisfaction that he is the ______________ of
_____________________, the Landlord named in the foregoing Notice of Lease; that
_______________________ is ____of said limited liability company; that the
execution of the foregoing Notice of Lease was duly authorized; and the seal
affixed to said instrument is the corporate seal and was thereto affixed and
said instrument signed and delivered by said __________________ President, as
and for his voluntary act and deed and as for the voluntary act and deed of said
limited liability company, in presence of deponent, who thereupon subscribed his
name thereto as witness.
Subscribed and sworn to
before me at ___________,
on the date aforesaid.
--------------------------
Secretary
---------------------------
Notary Public
(Notarial Seal)
4
EXHIBIT H
PLAN OF ADDITIONAL PREMISES
