Exhibit 10.8
LEXINGTON OFFICE PARK
LEXINGTON, MASSACHUSETTS
LEASE dated July 21, 1999
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in a
certain building (the "Building") known as, and with an address at, 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, being one (1) of two (2) buildings which
together with the land on which said buildings are located and other
improvements thereon constitute the Lexington Office Park (sometimes hereinafter
called the "Complex").
The parties to this Indenture of Lease hereby agree with each other as
follows:
ARTICLE I
REFERENCE DATA
1.1 Subjects Referred To:
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this
Article:
LANDLORD: Trustees of Elandzee Trust under
Declaration of Trust dated March
27, 1972, recorded with the
Middlesex South District
Registry of Deeds in Book 12237,
Page 161 as amended by
instrument dated January 23,
1991 recorded with said Registry
in Book 20987, Page 157 but not
individually.
LANDLORD'S ORIGINAL c/o Boston Properties, Inc. 8
ADDRESS: Xxxxxxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxxxxx 00000
LANDLORD'S Xxxxxx X. Xxxxx
CONSTRUCTION
REPRESENTATIVE:
TENANT: Centra Software. Inc., a
Delaware corporation
TENANT'S ORIGINAL 000 Xxxxxxx Xxxxxx
ADDRESS: Xxxxxxxxx, XX 00000
TENANT'S CONSTRUCTION Xxxxx Xxxxxxx
REPRESENTATIVE:
PREMISES A
COMMENCEMENT DATE: September 1, 1999
PREMISES B
COMMENCEMENT DATE: March 1, 2000
PREMISES C
COMMENCEMENT DATE: August 1, 2001
TERM (SOMETIMES CALLED The Lease Term applicable to
THE "ORIGINAL TERM"): that portion of the Building
Tenant is leasing at any given
time.
PREMISES A LEASE TERM: That period of time commencing
on the Premises A Commencement
Date and expiring on August 31,
2001, unless extended or sooner
terminated as provided in this
Lease.
PREMISES B LEASE TERM: That period of time commencing
on the Premises B Commencement
Date and expiring on August 31,
2001, unless extended or sooner
terminated as provided in this
Lease.
PREMISES C LEASE TERM: That period of time commencing
on the Premises C Commencement
Date and expiring on August 31,
2001, unless extended or sooner
terminated as provided in this
Lease.
EXTENSION OPTION: One (1) period of two (2) years
as provided in and on the terms
set forth in Section 8.20
hereof.
THE SITE: That certain parcel of land
located on the southerly side of
Bedford Street in Lexington,
Middlesex County, Massachusetts,
being more particularly
described in Exhibit A attached
hereto.
THE BUILDING: The Building known as and
numbered 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx, and
being one (1) of two (2)
buildings located in the
"Complex". The Building is
appropriately labeled on Exhibit
A-1 attached hereto and hereby
made a part hereof.
THE BUILDINGS: The two (2) buildings located on
the Site which buildings include
the Building (hereinbefore
referred to) and the building
known as and numbered 000
Xxxxxxx Xxxxxx in said
Lexington. The Buildings as
herein identified by street
number are labeled as such on
the Site Plan attached hereto as
Exhibit A-1.
TENANT'S SPACE That portion of the Building
(SOMETIMES CALLED which Tenant is leasing at any
THE "PREMISES"): time pursuant to the provisions
of this Lease.
PREMISES A: A portion of the second (2nd)
floor of the Building in
accordance with the floor plan
annexed hereto as Exhibit D and
incorporated herein by
reference.
PREMISES B: A portion of the second (2nd)
floor of the Building in
accordance with the floor plan
annexed hereto as Exhibit D and
incorporated herein by
reference.
PREMISES C: A portion of the second (2nd)
floor of the Building in
accordance with the floor plan
annexed hereto as Exhibit D and
incorporated herein by
reference.
NUMBER OF
PARKING SPACES: Twenty-Four (24) during the
period from September 1, 1999
through February 28, 2000;
Thirty-Four (34) during the
period from March 1, 2000
through July 31, 2001; and
Sixty-Four (64) during the
period from August 1, 2001
through the scheduled expiration
date of the Term unless extended
or sooner terminated.
ANNUAL FIXED RENT: The sum of the Annual Fixed
Rents applicable to the Premises
at any given time under lease to
Tenant in the Building.
ANNUAL FIXED RENT FOR PREMISES A: (a) During the Original Tenn of
this Lease at the annual rate of
$198,612.00 (being the product
of (i) $27.00 and (ii) the
"Rentable Floor Area of Premises
A" (hereinafter defined in this
Section 1.1).
(b) During the extension option
period (if exercised), as
determined pursuant to Section
8.20.
ANNUAL FIXED RENT FOR PREMISES B: (a) During the Original Term of
this Lease at the annual rate of
$81,243.00 (being the product of
(i) $27.00 and (ii) the
"Rentable Floor Area of Premises
B" (hereinafter defined in this
Section 1.1).
(b) During the extension option
period (if exercised), as
determined pursuant to Section
8.20.
ANNUAL FIXED RENT FOR PREMISES C: (a) During the Original Term of
this Lease at the annual rate of
$242,568,00 (being the product
of (i) $27.00 and (ii) the
"Rentable Floor Area of Premises
C" (hereinafter defined in this
Section 1.1).
(b) During the extension option
period (if exercised), as
determined pursuant to Section
8.20.
BASE OPERATING EXPENSES: Landlord's Operating Expenses
(as hereinafter defined in
Section 2.6) for calendar year
1999, being January 1, 1999
through December 31, 1999.
BASE TAXES: Landlord's Tax Expenses (as
hereinafter defined in Section
2.7) for fiscal tax year 1999
being July 1, 1998 through June
30, 1999.
TENANT ELECTRICITY: Initially as provided in Section
2.5 subject to adjustment as
provided in Section 2.8.
RENTABLE FLOOR AREA The rentable floor area of all
OF TENANT'S SPACE the space at any given time
(SOMETIMES ALSO CALLED leased to Tenant in the Building
"RENTABLE FLOOR pursuant to this Lease.
AREA OF THE PREMISES" OR
"RENTABLE FLOOR AREA OF
TENANT'S SPACE"):
RENTABLE FLOOR AREA OF
PREMISES A: 7,356 square feet
RENTABLE FLOOR AREA OF
PREMISES B: 3,009 square feet
RENTABLE FLOOR AREA OF
PREMISES C: 8,984 square feet
TOTAL RENTABLE FLOOR AREA
OF THE BUILDING: 84,500 square feet.
TOTAL RENTABLE FLOOR
AREA OF THE BUILDINGS: 169,000 square feet.
PERMITTED USES: Office purposes.
INITIAL MINIMUM LIMITS OF $3,000,000.00 combined single
TENANT'S COMMERCIAL limit per occurrence on a per
GENERAL LIABILITY location basis.
INSURANCE:
BROKER: Fallon, Xxxxx & X'Xxxxxx, Inc.
Xxx Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
1.2 Exhibits. There are incorporated as part of this Lease:
EXHIBIT A Description of Site
EXHIBIT A-1 Site Plan of Complex
EXHIBIT B Intentionally Omitted
EXHIBIT C Landlord's Services
EXHIBIT D Floor Plans
EXHIBIT E. Form of Confidentiality Agreement
1.3 Table of Articles and Sections
ARTICLE I--REFERENCE DATA
1.1 Subjects Referred to
1.2 Exhibits
1.3 Table of Articles and Sections
ARTICLE II--PREMISES, TERM AND RENT
2.1 The Premises
2.2 Rights To Use Common Facilities
2.2.1 Tenant's Parking
2.3 Landlord's Reservations
2.4 Habendum
2.5 Monthly Fixed Rent Payments
2.6 Adjustment for Operating Expenses
2.7 Adjustment for Real Estate Taxes
2.8 Adjustment for Tenant Electricity
ARTICLE III--CONSTRUCTION
3.1 Delivery of Premises
3.2 Intentionally Omitted
3.3 Alterations and Additions
3.3.1 Certain Alterations
3.4 General Provisions Applicable to Construction
ARTICLE IV--LANDLORD'S COVENANTS; INTERRUPTIONS AND
DELAYS
4.1 Landlord's Covenants
4.1.1 Services Furnished by Landlord
4.1.2 Additional Services Available to Tenant
4.1.3 Roof, Exterior Wall, Floor Slab and Common Facility
Repairs
4.1.4 Door Signs
4.1.5 Landlord's Insurance
4.2 Interruptions and Delays in Services and Repairs, etc.
ARTICLE V--TENANT'S COVENANTS
5.1 Payments
5.2 Repair and Yield Up
5.3 Use
5.4 Obstructions; Items Visible From Exterior; Rules and
Regulations
5.5 Safety Appliances; Licenses
5.6 Assignment; Sublease
5.7 Indemnity; Insurance
5.8 Personal Property at Tenant's Risk
5.9 Right of Entry
5.10 Floor Load; Prevention of Vibration and Noise
5.11 Personal Property Taxes
5.12 Compliance with Laws
5.13 Payment of Litigation Expenses
ARTICLE VI--CASUALTY AND TAKING
6.1 Fire and Casualty-Termination or Restoration; Rent Adjustment
6.2 Uninsured Casualty
ARTICLE VII--DEFAULT
7.1 Tenant's Default
7.2 Landlord's Default
ARTICLE VIII--MISCELLANEOUS PROVISIONS
8.1 Extra Hazardous Use
8.2 Waiver
8.3 Cumulative Remedies
8.4 Quiet Enjoyment
8.5 Notice To Mortgagee and Ground Lessor
8.6 Assignment of Rents
8.7 Surrender
8.8 Brokerage
8.9 Invalidity of Particular Provisions
8.10 Provisions Binding, Etc.
8.11 Recording
8.12 Notices
8.13 When Lease Becomes Binding
8.14 Section Headings
8.15 Rights of Mortgagee
8.16 Status Report and Financial Statements
8.17 Self-Help
8.18 Holding Over
8.19 Non-Subrogation
8.20 Extension Option
8.21 Late Payment
8.22 Governing Law
ARTICLE II
PREMISES, TERM AND RENT
2.1 Landlord, hereby demises and leases to Tenant, and Tenant hereby hires
and accepts from Landlord, Tenant's Space in the Building excluding
exterior faces of exterior walls, the common stairways and stairwells,
elevators and elevator xxxxx, fan rooms, electric and telephone
closets, janitor closets, freight elevator vestibules, and pipes,
ducts, conduits, wires and appurtenant fixtures serving exclusively or
in common other parts of the Building and if Tenant's Space includes
less than the entire rentable area of any floor, excluding the common
corridors, elevator lobbies and toilets located on such floor. Tenant's
Space with such exclusions is hereinafter referred to as the
"Premises". The term "Building" means the Building identified on the
first page, and which is the subject of this Lease and being one of the
two (2) Buildings erected on the Site by the Landlord; the term
"Site"means all, and also any part of the Land described in Exhibit A,
upon which the two (2) Buildings are located, plus any additions or
reductions thereto resulting from the change of any abutting street
line. The term "Property" means the two (2) Buildings and the Site.
2.2 Tenant shall have, as appurtenant to the Premises, the non- exclusive
right to use in common with others, subject to reasonable rules of
general applicability to tenants of the Building from time to time made
by Landlord of which Tenant is given notice (a) the common lobbies,
corridors, stairways, elevators and loading platform of the Building,
and the pipes, ducts, conduits, wires and appurtenant meters and
equipment serving the Premises in common with others, (b) common
walkways and driveways necessary for access to the Building, and (c) if
the Premises include less than the entire rentable floor area of any
floor, the common toilets, corridors and elevator lobby of such floor.
2.2.1 In addition, Tenant shall have the right to use in the parking area the
Number of Parking Spaces for the parking of automobiles in common with
use by other tenants of the Complex, provided, however, that Landlord
shall not be obligated to furnish stalls or spaces on the Site
specifically designated for Tenant's use. Tenant covenants and agrees
that it and all persons claiming by, through and under it, shall at all
times abide by all reasonable rules and regulations promulgated by
Landlord with respect to the use of the parking areas on the Site. The
parking privileges granted herein are non-transferable. Further,
Landlord assumes no responsibility whatsoever for loss or damage due to
fire, theft or otherwise to any automobile(s) parked on the Site or to
any personal property therein, however caused, and Tenant covenants and
agrees, upon request from Landlord from time to time, to notify its
officers, employees, agents and invitees of such limitation
of liability. Tenant acknowledges and agrees that a license only is
hereby granted, and no bailment is intended or shall be created.
2.3 Landlord reserves the right from time to time, without unreasonable
interference with Tenant's use: (a) to install, use, maintain, repair,
replace and relocate for service to the Premises and other parts of the
Building, or either, pipes, ducts, conduits, wires and appurtenant
fixtures, wherever located in the Premises or Building, and (b) to
alter or relocate any other common facility, provided that
substitutions are substantially equivalent or better. Installations,
replacements and relocations referred to in clause (a) above shall be
located so far as practicable in the central core area of the Building,
above ceiling surfaces, below floor surfaces or within perimeter walls
of the Premises, and shall not materially reduce the Rentable Floor
Area of the Premises. In the event of any change in the square footage
of the Premises resulting from Landlord's exercise of its rights
pursuant to this Section 2.3, Annual Fixed Rent payable hereunder shall
be adjusted to equal the product of (i) the Rentable Floor Area of the
Premises (as adjusted) and (ii) the Annual Fixed Rent payable per
square foot at the time of such adjustment. Except in the case of
emergencies, Landlord agrees to give Tenant reasonable advance notice
of any of the foregoing activities which require work in the Premises.
2.4 Tenant shall have and hold the Premises for a period commencing on the
applicable Commencement Date as set forth in Section 1.1 hereof, and
continuing for the Term unless sooner terminated as provided in Article
VI or Article VII, or unless extended as provided in Section 8.20.
2.5 Tenant agrees to pay to Landlord, or as directed by Landlord, at
Landlord's Original Address specified in Section 1.1 hereof, or at such
other place as Landlord shall from time to time designate by notice,
(1) (a) on the applicable Commencement Date (defined in Section 1.1
hereof) and thereafter monthly, in advance, on the first day of each
and every calendar month during the Original Term, a sum equal to one
twelfth (1/12th) of the Annual Fixed Rent (sometimes hereinafter
referred to as "fixed rent") and (1) (b) on the applicable Commencement
Date and thereafter monthly, in advance, on the first day of each and
every calendar month during the Original Term, a sum equal to one
twelfth (1/12th) of $.85 per annum for each square foot of Rentable
Floor Area of Tenant's Space for tenant electricity subject to
escalation as provided in Section 2.8 and (2) on the first day of each
and every calendar month during the extension option period (if
exercised), a sum equal to (a) one twelfth (1/12th) of the annual fixed
rent as determined in Section 8.20 for the extension option period plus
(b) then applicable monthly electricity charges (subject to escalation
for electricity as provided in Section 2.8 hereof). Until notice of
some other designation is given, fixed rent and all other charges for
which provision is herein made shall be paid by remittance to or for
the order of Boston Properties, Inc., Agents, at 0 Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, and all remittances received by Boston
Properties, Inc., as Agents as aforesaid, or by any subsequently
designated recipient, shall be treated as payment to Landlord.
Annual Fixed Rent for any partial month shall be paid by Tenant to
Landlord at such rate on a pro rata basis, and, if the Commencement
Date is a day other than the first day of a calendar month, the first
payment which Tenant shall make to Landlord shall be a payment equal to
a proportionate part of such monthly Annual Fixed Rent for the partial
month from the Commencement Date to the first day of the succeeding
calendar month.
Other charges payable by Tenant on a monthly basis, as hereinafter
provided, likewise shall be prorated, and the first payment on account
thereof shall be determined in similar fashion but shall commence on
the Commencement Date; and other provisions of this Lease calling for
monthly payments shall be read as incorporating this undertaking by
Tenant.
The Annual Fixed Rent and all other charges for which provision is
herein made shall be paid by Tenant to Landlord, without offset,
deduction or abatement except as otherwise specifically set forth in
this Lease.
2.6 "Landlord's Operating Expenses" means the cost of operation of the
Building and the Site which shall exclude (a) costs of special services
rendered to tenants (including Tenant) for which a separate charge is
made; (b) all capital expenditures and depreciation, except as
otherwise explicitly provided in this Section 2.6; (c) leasing fees or
brokerage commissions, advertising and promotional expenses, legal
fees, the cost of tenant improvements, build out allowances, moving
expenses, assumption of rent under existing leases and other
concessions incurred in connection with leasing space in the Building;
(d) interest on indebtedness, debt amortization, ground rent, and
refinancing costs for any mortgage or ground lease of the Building or
the Site; (e) any increase in Landlord's insurance premiums resulting
from any unusual tenant activity only to the extent such additional
cost can be identified by the insurer; (f) costs incurred in performing
work or furnishing services for any tenant (including Tenant), whether
at such tenant's or Landlord's expense, to the extent that such work or
services is in excess of any work or service that Landlord is obligated
to furnish to Tenant at Landlord's expense (e.g., if Landlord agrees to
provide extra cleaning to another tenant, the cost thereof would be
excluded since Landlord is not obligated to furnish extra cleaning to
Tenant); (g) the cost of repairs or replacements incurred by reason of
fire or other casualty or condemnation other than costs not in excess
of the deductible on any insurance maintained by Landlord which
provides a recovery for such repair or replacement; (h) payments for
rented equipment, the cost of which equipment would constitute a
capital expenditure if the equipment were purchased; (i) legal fees
paid in order in connection with the enforcement of any lease in the
Building; (j) salaries or other compensation paid to employees above
the grade of building manager (including, without limitation, profit
sharing and bonuses); (k) costs resulting solely from the gross
negligence of Landlord, but shall include, without limitation, the
following: premiums for insurance carried with respect to the Building
and the Site (including, without limitation, liability insurance,
insurance against loss in case of fire or casualty and insurance of
monthly installments of fixed rent and any additional rent which may be
due under this Lease and other leases of space in the Building for not
more than 12 months in the case of both fixed rent and additional rent
and if there be any first mortgage of the Property, including such
insurance as may be required by the holder of such first mortgage);
compensation and all fringe benefits, workmen's compensation insurance
premiums and payroll taxes paid to, for or with respect to all persons
engaged in the operating, maintaining or cleaning of the Building or
Site, water, sewer, electric, gas, oil and telephone charges (excluding
utility charges separately chargeable to tenants for additional or
special services); cost of building and cleaning supplies and
equipment; cost of maintenance, cleaning and repairs (other than
repairs not properly chargeable against income or reimbursed from
contractors under guarantees); cost of snow removal and care of
landscaping; payments under service contracts with independent
contractors; management fees at reasonable rates consistent with the
type of occupancy and the service rendered; and all other reasonable
and necessary expenses paid in connection with the operation, cleaning
and maintenance of the Building and the Site and properly chargeable
against income, provided, however, there shall be included (a)
depreciation for capital expenditures made by Landlord (i) to reduce
operating expenses if Landlord shall have reasonably determined that
the annual reduction in operating expenses shall exceed depreciation
therefor or (ii) to comply with applicable laws, rules, regulations,
requirements, statutes, ordinances, by-laws and court decisions of all
public authorities which are now or hereafter in force (herein
collectively called "Legal Requirements"); plus (b) in the case of both
(i) and (ii) an interest factor, reasonably determined by Landlord, as
being the interest rate then charged for long term mortgages by
institutional lenders on like properties within the locality in which
the Building is located; depreciation in the case of both (i) and (ii)
shall be determined by dividing the original cost of such capital
expenditure by the number of years of useful life of the capital item
acquired and the useful life shall be reasonably determined by Landlord
in accordance with generally accepted accounting principles and
practices in effect at the time of acquisition of the capital item.
"Operating Expenses Allocable to the Premises" means (i) the same
proportion of Landlord's Operating Expenses for and pertaining to the
Building as the Rentable Floor Area of Tenant's Space bears to the
Rentable Floor Area of the Building plus (ii) the same proportion of
Landlord's Operating Expenses for and pertaining to the Site as the
Rentable Floor Area of Tenant's Space bears to the Rentable Floor Area
of the Buildings.
"Base Operating Expenses" is hereinbefore defined in Section 1.1.
"Base Operating Expenses Allocable to the Premises" means (i) the same
proportion of Base Operating Expenses for and pertaining to the
Building as the Rentable Floor Area of Tenant's Space bears to the
Rentable Floor Area of the Building plus (ii) the same proportion of
Base Operating Expenses for and pertaining to the Site as the Rentable
Floor Area of Tenant's Space bears to the Rentable Floor Area of the
Buildings.
If with respect to any calendar year failing within the Term, or
fraction of a calendar year falling within the Term at the beginning or
end thereof, the Operating Expenses Allocable
to the Premises, (a) for a full calendar year exceed Base Operating
Expenses Allocable to the Premises, or for any such fraction of a
calendar year exceed the corresponding fraction of Base Operating
Expenses Allocable to the Premises, or (b) for a full calendar year are
less than Base Operating Expenses Allocable to the Premises, or for any
such fraction of a calendar year are less than the corresponding
fraction of Base Operating Expenses Allocable to the Premises then, in
the case of (a) Tenant shall pay to Landlord, as additional rent, the
amount of such excess, or in the case of (b) Landlord shall credit of
such difference against monthly installments of fixed rent next
thereafter coming due or against any sums then due from Tenant to
Landlord under this Lease (or refund such difference if the Term has
ended and Tenant has no further obligation to Landlord). Such payments
shall be made at the times and in the manner hereinafter provided in
this Section 2.6. (The Base Operating Expenses Allocable to the
Premises do not include the $.85 for tenant electricity to be paid by
Tenant at the time of payment of Annual Fixed Rent and for which
provision is made in Section 2.5 hereof, separate provision being made
in Section 2.8 of this Lease for Tenant's share of increases in
electricity costs.)
Not later than ninety (90) days after the end of the first calendar
year or fraction thereof ending December 31 and of each succeeding
calendar year during the Term or fraction thereof at the end of the
Term, Landlord shall render Tenant a statement in reasonable detail and
according to usual accounting practices certified by a representative
of Landlord, showing for the preceding calendar year or fraction
thereof, as the case may be, Landlord's Operating Expenses and
Operating Expenses Allocable to the Premises. Said statement to be
rendered to Tenant shall also show for the preceding year or fraction
thereof as the case may be the amounts of operating expenses already
paid by Tenant as additional rent, and the amount of operating expenses
remaining due from, or overpaid by, Tenant for the year or other period
covered by the statement. Within thirty (30) days after the date of
delivery of such statement, Tenant shall pay to Landlord the balance of
the amounts, if any, required to be paid pursuant to the above
provisions of this Section 2.6 with respect to the preceding year or
fraction thereof, or Landlord shall credit any amounts due from it to
Tenant pursuant to the above provisions of this Section 2.6 against (i)
monthly installments of fixed rent next thereafter coming due or (ii)
any sums then due from Tenant to Landlord under this Lease (or refund
such portion of the overpayment as aforesaid if the Term has ended and
Tenant has no further obligation to Landlord). Upon no less than three
(3) business days prior notice to Landlord, Tenant, at Tenant's
expense, may examine Landlord's books and records regarding such
statement at any reasonable time specified by Landlord during
Landlord's business hours at a place designated by Landlord, but
Landlord need not retain such books or records for more than three (3)
years after the close of the applicable calendar year. Tenant shall
hold such books and records in confidence and not disclose the same to
any other party, including, without limitation, any other tenant in the
Buildings. If such examination reveals that Landlord's Operating
Expenses for a calendar year have been (a) overstated by Landlord, then
an equitable adjustment shall be made in the amount paid or payable
pursuant to this Section 2.6 for such calendar year, and appropriate
credit shall be made against (i) monthly installments of Annual Fixed
Rent next thereafter coming due or (ii) any other sums due
from Tenant to Landlord under this Lease (or refund such amount if the
Term has ended and Tenant has no further obligation to Landlord other
than an indemnification obligation for which no claim has been made) or
(b) understated by Landlord, then an equitable adjustment shall be made
in the amount paid or payable pursuant to this Section 2.6 for such
calendar year and an appropriate payment shall be made by Tenant to
Landlord within thirty (30) days after Landlord bills Tenant therefor.
In addition, Tenant shall make payments monthly on account of Tenant's
share of increases in operating expenses anticipated for the then
current year at the time and in the fashion herein provided for the
payment of fixed rent. The amount to be paid to Landlord shall be an
amount reasonably estimated annually by Landlord to be sufficient to
cover, in the aggregate, a sum equal to Tenant's share of such
increases in operating expenses for each calendar year during the Term.
Notwithstanding the foregoing provisions, no decrease in Landlord's
Operating Expenses shall result in a reduction of the amount otherwise
payable by Tenant if and to the extent said decrease is attributable to
vacancies in the Buildings rather than to any other causes.
2.7 If with respect to any full Tax Year or fraction of a Tax Year falling
within the Term, Landlord's Tax Expenses Allocable to the Premises as
hereinafter defined (a) for a full Tax Year exceed Base Taxes Allocable
to the Premises, or for any such fraction of a Tax Year exceed the
corresponding fraction of Base Taxes Allocable to the Premises, or (b)
for a full Tax Year subsequent to the date of full assessment are less
than Base Taxes Allocable to the Premises, or for any such fraction of
a Tax Year subsequent to the date of full assessment are less than the
corresponding fraction of Base Taxes Allocable to the Premises; then,
on or before the thirtieth (30th) day following receipt by Tenant of
the certified statement referred to below in this Section 2.7, in the
case of (a) Tenant shall pay to Landlord, as additional rent, the
amount of such excess, or in the case of (b) Landlord shall credit such
difference against monthly installments of fixed rent next thereafter
coming due (or refund such overpayment if the Term has ended and Tenant
has no further obligation to Landlord). In addition, payments by Tenant
on account of increases in real estate taxes anticipated for the then
current year shall be made monthly at the time and in the fashion
herein provided for the payment of fixed rent. The amount so to be paid
to Landlord shall be an amount reasonably estimated by Landlord to be
sufficient to provide Landlord, in the aggregate, a sum equal to
Tenant's share of such increases, at least ten (10) days before the day
on which such payments by Landlord would become delinquent. Not later
than ninety (90) days after Landlord's Tax Expenses Allocable to the
Premises are determined for the first such Tax Year or fraction thereof
and for each succeeding Tax Year or fraction thereof during the Term,
Landlord shall render Tenant a statement in reasonable detail certified
by a representative of Landlord showing for the preceding Tax Year or
fraction thereof, as the case may be, real estate taxes on the Building
and the Site and abatements and refunds of any taxes and assessments.
Expenditures for legal fees and for other expenses incurred in
obtaining the tax refund or abatement may be charged against the tax
refund or abatement before the adjustments are made for the Tax Year.
To
the extent that real estate taxes shall be payable to the taxing
authority in installments with respect to periods less than a Tax Year,
the foregoing statement shall be rendered and payments made on account
of such installments. Notwithstanding the foregoing provisions, no
decrease in Landlord's Tax Expenses with respect to any Tax Year shall
result in a reduction of the amount otherwise payable by Tenant if and
to the extent said decrease is attributable to vacancies in the
Building or partial completion of the Building rather than to any other
causes.
Terms used herein are defined as follows:
(i) "Tax Year" means the twelve-month period beginning
July 1 each year during the Term or if the
appropriate governmental tax fiscal period shall
begin on any date other than July 1, such other date.
(ii) "Landlord's Tax Expenses Allocable to the Premises"
means (i) the same proportion of Landlord's Tax
Expenses for and pertaining to the Building as the
Rentable Floor Area of Tenant's Space bears to the
Total Rentable Floor Area of the Building, plus (ii)
the same proportion of Landlord's Tax Expenses for
and pertaining to the Site as the Rentable Floor Area
of Tenant's Space bears to the Total Rentable Floor
Area of the Buildings.
(iii) "Landlord's Tax Expenses" with respect to any Tax
Year means the aggregate real estate taxes on the
Building and Site with respect to that Tax Year,
reduced by any abatement receipts with respect to
that Tax Year.
(iv) "Base Taxes" is hereinbefore defined in Section 1.1.
(v) "Base Taxes Allocable to the Premises" means (i) the
same proportion of Base Taxes for and pertaining to
the Building as the Rentable Floor Area of Tenant's
Space bears to the Total Rentable Floor Area of the
Building, plus (ii) the same proportion of Base Taxes
for and pertaining to the Site as the Rentable Floor
Area of Tenant's Space bears to the Total Rentable
Floor Area of the Buildings.
(vi) "Real estate taxes" means all taxes and special
assessments of every kind and nature assessed by any
governmental authority on the Building or Site which
the Landlord shall be required to pay because of or
in connection with the ownership, leasing and
operation of the Site, the Building and the Property
(including without limitation, if applicable the
excise prescribed by Mass Gen Laws (Ter Ed) Chapter
121A, Section 10 and amounts in excess thereof paid
to the Town of Lexington pursuant to agreement
between Landlord and the Town) and reasonable
expenses of any proceedings for abatement of taxes.
The amount of special taxes or special
assessments to be included shall be limited to the
amount of the installment (plus any interest, other
than penalty interest, payable thereon) of such
special tax or special assessment required to be paid
during the year in respect of which such taxes are
being determined, Landlord hereby agreeing to elect
to pay any such special tax or special assessment
over the longest period of time permitted by law
without the imposition of penalty. There shall be
excluded from such taxes all income, estate,
succession, inheritance and transfer taxes; provided,
however, that if at any time during the Term the
present system of ad valorem taxation of real
property shall be changed so that in lieu of the
whole or any part of the ad valorem tax on real
property there shall be assessed on Landlord a
capital levy or other tax on the gross rents received
with respect to the Site or Building or Property, or
a federal, state, county, municipal, or other local
income, franchise, excise or similar tax, assessment,
levy or charge (distinct from any now in effect in
the jurisdiction in which the Property is located)
measured by or based, in whole or in part, upon any
such gross rents, then any and all of such taxes,
assessments, levies or charges, to the extent so
measured or based, shall be deemed to be included
within the term "real estate taxes" but only to the
extent that the same would be payable if the Site and
Buildings were the only property of Landlord.
2.8 If with respect to any calendar year falling within the Term or
fraction of a calendar year falling within the Term at the beginning or
end thereof, the cost of furnishing electricity to the Building,
including common areas and facilities and space occupied by tenants,
(but expressly excluding utility charges separately chargeable to
tenants for additional or special services for a full calendar year)
exceeds $.85 per square foot of Rentable Floor Area of the Building, or
for any such fraction of a calendar year exceeds the corresponding
fraction of $.85 per square foot of Rentable Floor Area of the
Building, then Tenant shall pay to Landlord, as additional rent, on or
before the thirtieth (30th) day following receipt by Tenant of the
statement referred to below in this Section 2.8, its proportionate
share of the amount of such excess. Payments by Tenant on account of
Tenant's share of such excess (i.e. the same ratio of such excess as
the Rentable Floor Area of Tenant's Space bears to the Total Rentable
Floor Area of the Building) shall be made monthly at the time and in
the fashion herein provided for the payment of Annual Fixed Rent. The
amount so to be paid to Landlord shall be an amount from time to time
reasonably estimated by Landlord to be sufficient to cover, in the
aggregate, a sum equal to Tenant's share of such excess for each
calendar year during the Term.
Not later than ninety (90) days after the end of the first calendar
year or fraction thereof ending December 31 and of each succeeding
calendar year during the Term or fraction thereof at the end of the
Term, Landlord shall render Tenant a reasonably detailed accounting
certified by a representative of Landlord showing for the preceding
calendar year, or fraction thereof, as the case may be, the costs of
furnishing electricity to the Building. Said statement to be rendered
to Tenant also shall show for the preceding year
or fraction thereof, as the case may be, the amount already paid by
Tenant on account of electricity, and the amount remaining due from, or
overpaid by, Tenant for the year or other period covered by the
statement.
ARTICLE III
CONSTRUCTION
3.1 Landlord shall deliver each portion of the Premises to Tenant on the
applicable Commencement Date as specified in Section 1.1 hereof in
"as-is" condition. Landlord shall have no obligation to perform any
additions, alterations, improvements or demolition to the Premises nor
shall Landlord be responsible for the installation or connection of
Tenant's computer, telephone or other communications equipment, systems
or wiring.
3.2 Intentionally Omitted.
3.3 This Section 3.3 shall apply before and during the Term. Tenant shall
not make alterations and additions to Tenant's space except in
accordance with plans and specifications therefor first approved by
Landlord, which approval shall not be unreasonably withheld. Landlord
shall not be deemed unreasonable for withholding approval of any
alterations or additions which (a) involve or might affect any
structural or exterior element of the Building, any area or element
outside of the Premises, or any facility serving any area of the
Building outside of the Premises, or (b) will delay completion of the
Premises or Building, or (c) will require unusual expense to readapt
the Premises to normal office use on Lease termination or increase the
cost of construction or of insurance or taxes on the Building or of the
services called for by Section 4.1 unless Tenant first gives assurance
acceptable to Landlord for payment of such increased cost and that such
readaptation will be made prior to such termination without expense to
Landlord. Landlord's review and approval of any such plans and
specifications and consent to perform work described therein shall not
be deemed an agreement by Landlord that such plans, specifications and
work conform with applicable Legal Requirements and requirements of
insurers of the Building (herein called "Insurance Requirements") nor
deemed a waiver of Tenant's obligations under this Lease with respect
to applicable Legal Requirements and Insurance Requirements nor impose
any liability or obligation upon Landlord with respect to the
completeness, design sufficiency or compliance of such plans,
specifications and work with applicable Legal Requirements and
Insurance Requirements. All alterations and additions shall be part of
the Building unless and until Landlord shall specify the same for
removal pursuant to Section 5.2 except for any additions or alterations
which Tenant requests to remain in the Premises in Tenant's notice
seeking Landlord's consent for the installation thereof (which notice
shall specifically refer to this Section 3.3) and for which Landlord
specifically agrees in writing may remain. Notwithstanding the
foregoing, upon the expiration or earlier termination of
the Lease, Tenant may remove its telephone system, however, Tenant may
not remove any wiring without first obtaining Landlord's consent. All
of Tenant's alterations and additions and installation of furnishings
shall be coordinated with any work being performed by Landlord and in
such manner as to maintain harmonious labor relations and not to damage
the Buildings or Site or interfere with construction or operation of
the Buildings and other improvements to the Site and, except for
installation of furnishings, shall be performed by Landlord's general
contractor or by contractors or workmen first approved by Landlord.
Except for work by Landlord's general contractor, Tenant, before its
work is started, shall secure all licenses and permits necessary
therefor; deliver to Landlord a statement of the names of all its
contractors and subcontractors and the estimated cost of all labor and
material to be furnished by them and security satisfactory to Landlord
protecting Landlord against liens arising out of the furnishing of such
labor and material; and cause each contractor to carry workmen's
compensation insurance in statutory amounts covering all the
contractor's and subcontractor's employees and commercial general
liability insurance or comprehensive general liability insurance with a
broad form comprehensive liability endorsement with such limits as
Landlord may reasonably require, but in no event less than $2,000,000
combined single limit per occurrence on a per location basis (all such
insurance to be written in companies approved by Landlord and naming
and insuring Landlord and Landlord's managing agent as additional
insureds and insuring Tenant as well as the contractors), and to
deliver to Landlord certificates of all such insurance. Tenant agrees
to pay promptly when due the entire cost of any work done on the
Premises by Tenant, its agents, employees, or independent contractors,
and not to cause or permit any liens for labor or materials performed
or furnished in connection therewith to attach to the Premises or the
Buildings or the Site and immediately to discharge any such liens which
may so attach. Tenant shall pay, as additional rent, 100% of any real
estate taxes on the Complex which shall, at any time after commencement
of the Term, result from any alteration, addition or improvement to the
Premises made by Tenant.
3.3.1 Notwithstanding the terms of Section 3.3, Tenant shall have the right,
without obtaining the prior consent of Landlord, to make alterations,
additions or improvements to the Premises where:
(i) the same are within the interior of the Premises
within the Building, and do not affect the exterior
of the Premises and the Building (including no signs
on windows);
(ii) the same do not affect the roof, walls, any
structural element of the Building, the mechanical,
electrical, plumbing, heating, ventilating, air
conditioning and fire protection systems of the
Building;
(iii) the cost of any individual alteration, addition or
improvement shall not exceed $2,500.00 and the
aggregate cost of said alterations, additions or
improvements made by Tenant during the Lease Term
shall not exceed $10,000.00 in cost; and
(iv) Tenant shall comply with the provisions of this Lease
and if such work increases the cost of insurance or
taxes or of services, Tenant shall pay for any such
increase in cost;
provided, however, that Tenant shall, within fifteen (15) days after
the making of such changes, send to Landlord plans and specifications
describing the same in reasonable detail and provided further that
Landlord, by notice to Tenant given at least thirty (30) days prior to
the expiration or earlier termination of the Lease Term, may require
Tenant to restore the Premises to its condition prior to such
alteration, addition or improvement at the expiration or earlier
termination of the Lease Term.
3.4 All construction work required or permitted by this Lease shall be done
in a good and workmanlike manner and in compliance with all applicable
Legal Requirements and Insurance Requirements now or hereafter in
force. Each party may inspect the work of the other at reasonable times
and shall promptly give notice of observed defects. Each party
authorizes the other to rely in connection with design and construction
upon approval and other actions on the party's behalf by any
Construction Representative of the party named in Article I or any
person hereafter designated in substitution or addition by notice to
the party relying.
ARTICLE IV
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 Landlord covenants:
4.1.1 To furnish services, utilities, facilities and supplies set forth in
Exhibit C equal to those customarily provided by landlords in high
quality buildings in the Boston West Suburban Market subject to
escalation reimbursement in accordance with Section 2.6.
4.1.2 To furnish, at Tenant's expense, reasonable additional Building
operation services which are usual and customary in similar office
buildings in the Boston West Suburban Market upon reasonable advance
request of Tenant at reasonable and equitable rates from time to time
established by Landlord.
4.1.3 Subject to the escalation provisions of Section 2.6 and except as
otherwise provided in Article VI, (i) to make such repairs and
replacements to the roof, exterior walls, floor slabs and common areas
and facilities including without limitation the plumbing, electrical,
mechanical, heating, ventilating, air-conditioning and other systems
serving the base building (excluding any systems installed by Tenant)
as may be necessary to keep
them in good, working order and condition and (ii) to maintain the
Building (exclusive of Tenant's responsibilities under this Lease) in a
first class manner comparable to the maintenance of similar properties
in the Boston Suburban Market.
4.1.4 To provide and install, at Landlord's expense, letters or numerals on
doors in the Premises to identify Tenant's official name and Building
address; all such letters and numerals shall be in the building
standard graphics and no others shall be used or permitted on the
Premises.
4.1.5 Landlord shall carry at all times during the Term of this Lease (i)
commercial general liability insurance with respect to the Building in
an amount not less than $3,000,000.00 combined single limit per
occurrence and (ii) insurance against loss or damage with respect to
the Buildings covered by the so-called "at risk" type insurance
coverage in an amount equal to at least the replacement value of the
Building. Landlord may also maintain such other insurance as may from
time to time be required by a mortgagee holding a mortgage lien on the
Building. Further, Landlord may also maintain such insurance against
loss of annual fixed rent and additional rent and such other risks and
perils as Landlord deems proper. Any and all such insurance (i) may be
maintained under a blanket policy affecting other properties of
Landlord and/or its affiliated business organizations, (ii) may be
written with deductibles as determined by Landlord and (iii) shall be
subject to escalation reimbursement in accordance with Section 2.6.
4.2 Landlord shall not be liable to Tenant for any compensation or
reduction of rent by reason of inconvenience or annoyance or for loss
of business arising from the necessity of Landlord or its agents
entering the Premises for any of the purposes in this Lease authorized,
or for repairing the Premises or any portion of the Building however
the necessity may occur. In case Landlord is prevented or delayed from
making any repairs, alterations or improvements, or furnishing any
services or performing any other covenant or duty to be performed on
Landlord's part, by reason of any cause reasonably beyond Landlord's
control, including without limitation the causes set forth in Section
3.2 hereof as being reasonably beyond Landlord's control, Landlord
shall not be liable to Tenant therefor, nor, except as expressly
otherwise provided in Section 6.1, shall Tenant be entitled to any
abatement or reduction of rent by reason thereof, nor shall the same
give rise to a claim in Tenant's favor that such failure constitutes
actual or constructive, total or partial, eviction from the Premises.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary
repairs have been completed; provided, however, that in each instance
of stoppage, Landlord shall exercise reasonable diligence to eliminate
the cause thereof. Except in case of emergency repairs, Landlord will
give Tenant reasonable advance notice of any contemplated stoppage and
will use reasonable efforts to avoid unnecessary inconvenience to
Tenant by reason thereof.
ARTICLE V
TENANT'S COVENANTS
Tenant covenants during the term and such further time as Tenant
occupies any part of the Premises:
5.1 To pay when due all fixed rent and additional rent and all charges for
utility services rendered to the Premises and service inspections
therefor (except as otherwise provided in Exhibit C) and, as further
additional rent, all charges for additional services rendered pursuant
to Section 4.1.2.
5.2 Except as otherwise provided in Article VI and Section 4.1.3, to keep
the Premises in good order, repair and condition, reasonable wear and
tear only excepted, and all glass in windows (except glass in exterior
walls unless the damage thereto is attributable to Tenant's negligence
or misuse) and doors of the Premises whole and in good condition with
glass of the same type and quality as that injured or broken, damage by
fire only excepted, and at the expiration or termination of this Lease
peaceably to yield up the Premises all construction, work,
improvements, and all alterations and additions thereto made by Tenant
in good order, repair and condition, reasonable wear and tear excepted,
first removing all goods and effects of Tenant and, to the extent
specified by Landlord by notice to Tenant given at least ten (10) days
before such expiration or termination (unless otherwise specified by
Landlord as set forth in Section 3.3), the wiring for Tenant's
computer, telephone and other communication systems and equipment and
all alterations and additions made by Tenant and all partitions, and
repairing any damage caused by such removal and restoring the Premises
and leaving them clean and neat. Tenant shall not permit or commit any
waste, and Tenant shall be responsible for the cost of repairs which
may be made necessary by reason of damage to common areas in the
Building, to the Site or to the other building by Tenant, Tenant's
independent contractors, Tenant' s employees or Tenant's invitees.
5.3 Continuously from the commencement of the Term to use and occupy the
Premises for the Permitted Uses only, and not to injure or deface the
Premises, Building, the other building or Site nor to permit in the
Premises or on the Site any auction sale, or inflammable fluids or
chemicals, or nuisance, or the emission from the Premises of any
objectionable noise or odor, nor to use or devote the Premises or any
part thereof for any purpose other than the Permitted Uses, nor any use
thereof which is inconsistent with the maintenance of the Building as
an office building of the first class in the quality of its
maintenance, use and occupancy, or which is improper, offensive,
contrary to law or ordinance or liable to invalidate or increase the
premiums for any insurance on the Building or its contents or liable to
render necessary any alteration or addition to the Building. Further,
(i) Tenant shall not, nor shall Tenant permit its employees, invitees,
agents, independent contractors, contractors, assignees or subtenants
to, keep, maintain, store or dispose of (into the sewage or waste
disposal system or otherwise) or engage in
any activity which might produce or generate any substance which is or
may hereafter be classified as a hazardous material, waste or substance
(collectively "Hazardous Materials"), under federal, state or local
laws, rules and regulations, including, without limitation, 42 U.S.C.
Section 6901 et seq., 42 U.S.C. Section 9601 et seq., 42 U.S.C. Section
2601 et seq., 49 U.S.C. Section 1802 et seq. and Massachusetts General
Laws, Chapter 21E and the rules and regulations promulgated under any
of the foregoing, as such laws, rules and regulations may be amended
from time to time (collectively "Hazardous Materials Laws"), (ii)
Tenant shall immediately notify Landlord of any incident in, on or
about the Premises, the Building or the Site that would require the
filing of a notice under any Hazardous Materials Laws, (iii) Tenant
shall comply and shall cause its employees, invitees, agents,
independent contractors, contractors, assignees and subtenants to
comply with each of the foregoing and (iv) Landlord shall have the
right to make such inspections (including testing) as Landlord shall
elect from time to time to determine that Tenant is complying with the
foregoing.
5.4 Not to obstruct in any manner any portion of the Building not hereby
leased or any portion thereof or of the other building or of the Site
used by Tenant in common with others; not without prior consent of
Landlord to permit the painting or placing of any signs, curtains,
blinds, shades, awnings, aerials or flagpoles, or the like, visible
from outside the Premises; and to comply with all reasonable Rules and
Regulations now or hereafter made by Landlord of uniform application to
all occupants of the Building, of which Tenant has been given notice,
for the care and use of the Building and Site and their facilities and
approaches; Landlord shall not be liable to Tenant for the failure of
other occupants of the Buildings to conform to such Rules and
Regulations.
5.5 To keep the Premises equipped with all safety appliances required by
any public authority because of any use made by Tenant other than
normal office use, and to procure all licenses and permits so required
because of such use and, if requested by Landlord, to do any work so
required because of such use, it being understood that the foregoing
provisions shall not be construed to broaden in any way Tenant's
Permitted Uses.
5.6 Except as otherwise expressly provided herein, Tenant covenants and
agrees that it shall not assign, mortgage, pledge, hypothecate or
otherwise transfer this Lease and/or Tenant's interest in this Lease or
sublet (which term, without limitation, shall include granting of
concessions, licenses or the like) the whole or any part of the
Premises. Any assignment, mortgage, pledge, hypothecation, transfer or
subletting not expressly permitted in or consented to by Landlord under
Sections 5.6.1-5.6.5 shall be void, ab initio; shall be of no force and
effect; and shall confer no rights on or in favor of third parties. In
addition, Landlord shall be entitled to seek specific performance of or
other equitable relief with respect to the provisions hereof.
5.6.1 Notwithstanding the foregoing provisions of Section 5.6 above and the
provisions of Section 5.6.2 below, but subject to the provisions of
Sections 5.6.3, 5.6.4 and 5.6.5 below, Tenant shall have the right to
assign this Lease or to sublet the Premises (in whole
or in part) to any parent or subsidiary corporation of Tenant or to any
corporation into which Tenant may be converted or with which it may
merge, provided that the entity to which this Lease is so assigned or
which so sublets the Premises has a credit worthiness (e.g. assets on a
pro forma basis using generally accepted accounting principles
consistently applied and using the most recent financial statements)
which is the same or better than the Tenant as of the date of this
Lease.
5.6.1.1 Notwithstanding the provisions of Section 5.6.1 above but subject to
the provisions of this Section 5.6.1.1 and the provisions of Sections
5.6.3, 5.6.4 and 5.6.5, Tenant may sublease less than twenty percent
(20%) of the Rentable Floor Area of the Premises in the aggregate
provided that in each instance Tenant first obtains the express prior
written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. Landlord shall not be deemed to be unreasonably
withholding its consent to such a proposed subleasing if:
(a) the proposed subtenant is not of a character
consistent with the operation of a first class office
building (by way of example, Landlord shall not be
deemed to be unreasonably withholding its consent to
an assignment or subleasing to any governmental
agency), or
(b) the proposed subtenant is not of good character or
reputation, or
(c) the proposed subtenant does not possess adequate
financial capability to perform the Tenant
obligations as and when due or required, or
(d) the subtenant proposes to use the Premises (or part
thereof) for a purpose other than the purpose for
which the Premises may be used as stated in Section
1.1 hereof, or
(e) the character of the business to be conducted or the
proposed use of the Premises by the proposed
subtenant or assignee shall (i) be likely to increase
Landlord's Operating Expenses beyond that which
Landlord incurs for use by Tenant; (ii) be likely to
increase the burden on elevators or other Building
systems or equipment over the burden prior to such
proposed subletting; or (iii) violate or be likely to
violate any provisions or restrictions contained
herein relating to the use or occupancy of the
Premises, or
(f) there shall be existing an Event of Default (defined
in section 7.1).
5.6.2 Notwithstanding the provisions of Section 5.6.1 above, but subject to
the provisions of this Section 5.6.2 and the provisions of Sections
5.6.3, 5.6.4 and 5.6.5 below, Tenant covenants and agrees not to assign
this Lease or to sublet twenty percent (20%) or more
of the Rentable Floor Area of the Premises (which shall be deemed to
include, without limitation, any proposed subleasing which together
with prior subleasings would result in an area equal to or greater than
twenty (20%) percent of the Rentable Floor Area of the Premises in the
aggregate being the subject of one or more subleases) without, in each
instance, having first obtained the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. Landlord
shall not be deemed to be unreasonably withholding its consent to such
a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is not of a
character consistent with the operation of a first
class office building (by way of example, Landlord
shall not be deemed to be unreasonably withholding
its consent to an assignment or subleasing to any
governmental agency), or
(b) the proposed assignee or subtenant is not of good
character or reputation, or
(c) the proposed assignee or subtenant does not possess
adequate financial capability to perform the Tenant
obligations as and when due or required, or
(d) the assignee or subtenant proposes to use the
Premises (or part thereof) for a purpose other than
the purpose for which the Premises may be used as
stated in Section 1.1 hereof, or
(e) the character of the business to be conducted or the
proposed use of the Premises by the proposed
subtenant or assignee shall (i) be likely to increase
Landlord's Operating Expenses beyond that which
Landlord incurs for use by Tenant; (ii) be likely to
increase the burden on elevators or other Building
systems or equipment over the burden prior to such
proposed subletting or assignment; or (iii) violate
or be likely to violate any provisions or
restrictions contained herein relating to the use or
occupancy of the Premises, or
(f) there shall be existing an Event of Default (defined
in Section 7.1), or
(g) in the case of a proposed assignment, Landlord
elects, at its option, by notice given within thirty
(30) days after receipt of Tenant's notice given
pursuant to Section 5.6.3 below, to terminate this
Lease as of a date which shall be not earlier than
sixty (60) days nor later than one hundred twenty
(120) days after Landlord's notice to Tenant;
provided, however, that upon the termination date as
set forth in Landlord's notice, all of Landlord's and
Tenant's obligations relating to the period after
such termination date (but not those relating to the
period before such termination date) shall cease, or
(h) in the case of a proposed subleasing which together
with prior subleasings would result in an area equal
to twenty percent (20%) or more of the Rentable Floor
Area of the Premises being the subject of one or more
subleases, Landlord elects, at its option, by notice
given within thirty (30) days after receipt of
Tenant's notice given pursuant to Section 5.6.3
below, to terminate this Lease as to such portions of
the Premises proposed to be sublet which would, if
made, result in an area greater than twenty percent
(20%) of the Rentable Floor Area of the Premises
being sublet (herein called the "Terminated Portion
of the Premises") as of a date which shall be not
earlier than sixty (60) days nor later than one
hundred twenty (120) days after Landlord's notice to
Tenant; provided, however that upon the termination
date as set forth in Landlord's notice, all of
Landlord's and Tenant's obligations as to the
Terminated Portion of the Premises relating to the
period after such termination date (but not those
relating to the period before such termination date)
shall cease and provided, further, that this Lease
shall remain in full force and effect as to the
remainder of the Premises, except that from and after
the termination date the Rentable Floor Area of the
Premises shall be reduced to the rentable floor area
of the remainder of the Premises and the definition
of Rentable Floor Area of the Premises shall be so
amended and after such termination all references in
this Lease to the "Premises" or the "Rentable Floor
Area of the Premises" shall be deemed to be
references to the remainder of the Premises and
accordingly Tenant's payments for Annual Fixed Rent,
operating costs, real estate taxes and electricity
shall be reduced on a pro rata basis to reflect the
size of the remainder of the Premises, and provided
further that Landlord shall have the right to make
such alterations and improvements as may be required
to separately demise the Terminated Portion of the
Premises.
5.6.3 Tenant shall give Landlord notice of any proposed sublease or
assignment, and said notice shall specify the provisions of the
proposed assignment or subletting, including (a) the name and address
of the proposed assignee or subtenant, (b) in the case of a proposed
assignment or subletting pursuant to Section 5.6.2, such information as
to the proposed assignee's or proposed subtenant's net worth and
financial capability and standing as may reasonably be required for
Landlord to make the determination referred to in Section 5.6.2 above
(provided, however, that Landlord shall hold such information
confidential having the right to release same to its officers,
accountants, attorneys and mortgage lenders on a confidential basis),
(c) all of the terms and provisions upon which the proposed assignment
or subletting is to be made, (d) in the case of a proposed assignment
or subletting pursuant to Section 5.6.2, all other information
necessary to make the determination referred to in Section 5.6.2 above
and (e) in the case of a proposed assignment or subletting pursuant to
Section 5.6.1 above, such information as may be reasonably required by
Landlord to determine that such proposed assignment or subletting
complies with the requirements of said Section 5.6.1.
If Landlord shall consent to the proposed assignment or subletting, as
the case may be, then, in such event, Tenant may thereafter sublease
(the whole but not part of the Premises) or assign pursuant to Tenant's
notice, as given hereunder; provided, however, that if such assignment
or sublease shall not be executed and delivered to Landlord within
ninety (90) days after the date of Landlord's consent, the consent
shall be deemed null and void and the provisions of Section 5.6.1.1
shall be applicable.
5.6.4 In addition, in the case of any assignment or subleasing as to which
Landlord may consent (other than an assignment or subletting permitted
under Section 5.6.1 hereof) such consent shall be upon the express and
further condition, covenant and agreement, and Tenant hereby covenants
and agrees that, in addition to the Annual Fixed Rent, additional rent
and other charges to be paid pursuant to this Lease, fifty percent
(50%) of the "Assignment/Sublease Profits" (hereinafter defined), if
any, shall be paid to Landlord.
The "Assignment/Sublease Profits" shall be the excess, if any, of (a)
the "Assignment/ Sublease Net Revenues" as hereinafter defined over (b)
the Annual Fixed Rent and additional rent and other charges provided in
this Lease (provided, however, that for the purpose of calculating the
Assignment/Sublease Profits in the case of a sublease, appropriate
proportions in the applicable Annual Fixed Rent, additional rent and
other charges under this Lease shall be made based on the percentage of
the Premises subleased and on the terms of the sublease). The
"Assignment/Sublease Net Revenues" shall be the fixed rent, additional
rent and all other charges and sums payable either initially or over
the term of the sublease or assignment plus all other profits and
increases to be derived by Tenant as a result of such subletting or
assignment less the reasonable costs of Tenant incurred in such
subleasing or assignment (the definition of which shall include but not
necessarily be limited to rent concessions, brokerage commissions and
alteration allowances) amortized over the term of the sublease or
assignment.
All payments of the Assignment/Sublease Profits due Landlord shall be
made within ten (10) days of receipt of same by Tenant.
5.6.5 (A) It shall be a condition of the validity of any assignment or
subletting of right under Section 5.6.1 above, or consented to under
Section 5.6.2 above, that both Tenant and the assignee or sublessee
agree directly with Landlord in a separate written instrument
reasonably satisfactory to Landlord which contains terms and provisions
reasonably required by Landlord, including, without limitation, the
agreement of the assignee or sublessee to be bound by all the
obligations of the Tenant hereunder, including, without limitation, the
obligation to pay the rent and other amounts provided for under this
Lease (but in the case of a partial subletting, such subtenant shall
agree on a pro rata basis to be so bound) including the provisions of
Sections 5.6 through 5.6.5 hereof, but such assignment or subletting
shall not relieve the Tenant named herein of any of the obligations of
the Tenant hereunder, Tenant shall remain fully and primarily liable
therefor and the liability of Tenant and such assignee (or subtenant,
as the case may be) shall be joint and several. Further, and
notwithstanding the foregoing, the provisions
hereof shall not constitute a recognition of the assignment or the
assignee thereunder or the sublease or the subtenant thereunder, as the
case may be, and at Landlord's option, upon the termination of the
Lease, the assignment or sublease shall be terminated.
(B) As additional rent, Tenant shall reimburse Landlord promptly for
reasonable out of pocket legal and other expenses incurred by Landlord
in connection with any request by Tenant for consent to assignment or
subletting.
(C) If this Lease be assigned, or if the Premises or any part thereof
be sublet or occupied by anyone other than Tenant, Landlord may upon
prior notice to Tenant, at any time and from time to time, collect rent
and other charges from the assignee, sublessee or occupant and apply
the net amount collected to the rent and other charges herein reserved,
but no such assignment, subletting, occupancy or collection shall be
deemed a waiver of this covenant, or a waiver of the provisions of
Sections 5.6 through 5.6.5 hereof, or the acceptance of the assignee,
sublessee or occupant as a tenant or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained, the Tenant herein named to remain primarily liable under
this Lease.
(D) The consent by Landlord to an assignment or subletting under any of
the provisions of Sections 5.6.1 or 5.6.2 shall in no way be construed
to relieve Tenant from obtaining the express consent in writing to
Landlord to any further assignment or subletting.
(E) In addition to the other requirements set forth in this Lease and
notwithstanding any other provision of this Lease, partial sublettings
of the Premises shall only be permitted under the following terms and
conditions: (i) the layout of both the subleased premises and the
remainder of the Premises must comply with applicable laws, ordinances,
rules and/or regulations and be approved by Landlord, including,
without limitation, all requirements concerning access and egress; and
(ii), in the event the subleased premises are separately physically
demised from the remainder of the Premises, Tenant shall pay all costs
of separately physically demising the subleased premises.
5.7 (A) To defend with counsel first approved by Landlord, save harmless,
and indemnify Landlord from any liability for injury, loss, accident or
damage to any person or property, and from any claims, actions,
proceedings and expenses and costs in connection therewith (including
without limitation reasonable counsel fees) (i) arising from or claimed
to have arisen from (a) the omission, fault, willful act, negligence or
other misconduct of Tenant or Tenant's contractors, licensees,
invitees, agents, servants, independent contractors or employees or (b)
any use made or thing done or occurring on the Premises to the extent
not due to the omission, fault, willful act, negligence or other
misconduct of Landlord, or (ii) resulting from the failure of Tenant to
perform and discharge its covenants and obligations under this Lease.
(B) To maintain commercial general liability insurance or comprehensive
general liability insurance written on an occurrence basis with a broad
form comprehensive liability endorsement covering the Premises insuring
Landlord and Landlords managing agent (and such persons as are in
privity of estate with Landlord and Landlords managing agent as may be
set out in notice from time to time) as additional insureds as well as
Tenant with limits which shall, at the commencement of the Tenn, be at
least equal to those stated in Section 1.1 and from time to time during
the Tenn shall be for such higher limits, if any, as are customarily
carried in Greater Boston with respect to similar properties, and
workmen's compensation insurance with statutory limits covering all of
Tenant's employees working in the Premises, and to deposit promptly
with Landlord certificates for such insurance, and all renewals
thereof, bearing the endorsement that the policies will not be canceled
until after ten (10) days' written notice to Landlord. All insurance
required to be maintained by Tenant pursuant to this Lease shall be
maintained with responsible companies qualified to do business, and in
good standing, in the Commonwealth of Massachusetts and which have a
rating of at least "A" and are within a financial size category of not
less than "Class VIII" in the most current Best's Key Rating Guide or
such similar rating as may be reasonably selected by Landlord if such
Guide is no longer published.
5.8 That all of the furnishings, fixtures, equipment, effects and property
of every kind, nature and description of Tenant and of all persons
claiming by, through or under Tenant which, during the continuance of
this Lease or any occupancy of the Premises by Tenant or anyone
claiming under Tenant, may be on the Premises or elsewhere in the
Building or on the Site, shall be at the sole risk and hazard of
Tenant, and if the whole or any part thereof shall be destroyed or
damaged by fire, water or otherwise, or by the leakage or bursting of
water pipes, steam pipes, or other pipes, by theft or from any other
cause, no part of said loss or damage is to be charged to or be borne
by Landlord, except that Landlord shall in no event be indemnified or
held harmless or exonerated from any liability to Tenant or to any
other person, for any injury, loss, damage or liability to the extent
such indemnity, hold harmless or exoneration is prohibited by law.
Further, Tenant, at Tenant's expense, shall maintain at all times
during the Term of this Lease insurance against loss or damage covered
by the so-called "all risk" type insurance coverage with respect to
Tenant's fixtures, equipment, goods, wares and merchandise, tenant
improvements made by or paid for by Tenant, and other property of
Tenant (collectively "Tenant's Property"). Such insurance shall be in
an amount at least equal to the full replacement cost of Tenant's
Property.
5.9 To permit Landlord and its agents to examine the Premises at reasonable
times and, if Landlord shall so elect, to make any repairs or
replacements Landlord may deem necessary; to remove, at Tenant's
expense, any alterations, addition, signs, curtains, blinds, shades,
awnings, aerials, flagpoles, or the like not consented to in writing;
and to show the Premises to prospective tenants during the eighteen
(18) months preceding expiration of the Term and to prospective
purchasers and mortgagees at all reasonable times.
5.10 Not to place a load upon the Premises exceeding an average rate of 70
pounds of live load per square foot of floor area (partitions shall be
considered as part of the live load); and not to move any safe, vault
or other heavy equipment in, about or out of the Premises except in
such manner and at such time as Landlord shall in each instance
authorize; Tenant's business machines and mechanical equipment which
cause vibration or noise that may be transmitted to the Building
structure or to any other space in the Building shall be so installed,
maintained and used by Tenant so as to eliminate such vibration or
noise.
5.11 To pay promptly when due all taxes which may be imposed upon Tenant's
Property in the Premises to whomever assessed.
5.12 To comply with all applicable Legal Requirements now or hereafter in
force which shall impose a duty on Landlord or Tenant relating to or as
a result of the use or occupancy of the Premises; provided that Tenant
shall not be required to make any alterations or additions to the
structure, roof, exterior and load bearing walls, foundation,
structural floor slabs and other structural elements of the Building
unless the same are required by such Legal Requirements as a result of
or in connection with Tenant's use or occupancy of the Premises beyond
normal use of space of this kind. Tenant shall promptly pay all fines,
penalties and damages that may arise out of or be imposed because of
its failure to comply with the provisions of this Section 5.12.
5.13 As additional rent, to pay all reasonable costs, counsel and other fees
incurred by Landlord in connection with the successful enforcement by
Landlord of any obligations of Tenant under this Lease.
ARTICLE VI
CASUALTY AND TAKING
6.1 In case during the Lease Term the Building or the Site are damaged by
fire or other casualty and such fire or casualty damage cannot, in the
ordinary course, reasonably be expected to be repaired within one
hundred twenty (120) days from the time that repair work would
commence, Landlord may, at its election, terminate this Lease by notice
given to Tenant within sixty (60) days after the date of such fire or
other casualty, specifying the effective date of termination. The
effective date of termination specified by Landlord shall not be less
than thirty (30) days nor more than forty-five (45) days after the date
of notice of such termination.
In case during the portion of the Term prior to August 31, 2001 or last
year of the Term during the Extended Tenn referred to in Section 8.20
the Premises are damaged by fire or other casualty and such fire or
casualty damage cannot, in the ordinary course, reasonably be expected
to be repaired within one hundred twenty (120) days (and/or as to
special
work or work which requires long lead time then if such work cannot
reasonably be expected to be repaired within such additional time as is
reasonable under the circumstances given the nature of the work) from
the time that repair work would commence, Tenant may, at its election,
terminate this Lease by notice given to Landlord within sixty (60) days
after the date of such fire or other casualty, specifying the effective
date of termination. The effective date of termination specified by
Tenant shall be not less than thirty (30) days nor more than forty-five
(45) days after the date of notice of such termination.
Unless terminated pursuant to the foregoing provisions, this Lease
shall remain in full force and effect following any such damage
subject, however, to the following provisions.
If the Building or the Site or any part thereof are damaged by fire or
other casualty and this Lease is not so terminated, or Landlord or
Tenant have no right to terminate this Lease, and in any such case the
holder of any mortgage which includes the Building as a part of the
mortgaged premises or any ground lessor of any ground lease which
includes the Site as part of the demised premises allows the net
insurance proceeds to be applied to the restoration of the Building
(and/or the Site), Landlord promptly after such damage and the
determination of the net amount of insurance proceeds available shall
use due diligence to restore the Premises and the Building in the event
of damage thereto (excluding Tenant's Property) into proper condition
for use and occupation and a just proportion of the Annual Fixed Rent,
Tenant's share of Operating Costs and Tenant's share of real estate
taxes according to the nature and extent of the injury to the Premises
shall be abated from the date of damage until the Premises shall have
been put by Landlord substantially into such condition except for punch
list items and long lead items. Notwithstanding anything herein
contained to the contrary, Landlord shall not be obligated to expend
for such repair and restoration any amount in excess of the net
insurance proceeds.
Unless such restoration is completed within eight (8) months from the
date of the casualty or taking, such period to be subject, however, to
extension where the delay in completion of such work is due to causes
beyond Landlord's reasonable control (but in no event beyond fifteen
(15) months from the date of the casualty or taking), Tenant shall have
the right to terminate this Lease at any time after the expiration of
such eight (8) month (as extended) period until the restoration is
substantially completed, such termination to take effect as of the
thirtieth (30th) day after the date of receipt by Landlord of Tenant's
notice, with the same force and effect as if such date were the date
originally established as the expiration date hereof unless, within
thirty (30) days after Landlord's receipt of Tenant's notice, such
restoration is substantially completed, in which case Tenant's notice
of termination shall be of no force and effect and this Lease and the
Lease Term shall continue in full force and effect.
6.2 Notwithstanding anything to the contrary contained in this Lease, if
the Building or the Premises shall be substantially damaged by fire or
casualty as the result of a risk not covered by the forms of casualty
insurance at the time maintained by Landlord and such fire or casualty
damage cannot, in the ordinary course, reasonably be expected to be
repaired within ninety (90) days from the time that repair work would
commence, Landlord may, at its election, terminate the Term of this
Lease by notice to the Tenant given within thirty (30) days after such
loss. If Landlord shall give such notice, then this Lease shall
terminate as of the date of such notice with the same force and effect
as if such date were the date originally established as the expiration
date hereof.
6.3 If the entire Building, or such portion of the Premises as to render
the balance (if reconstructed to the maximum extent practicable in the
circumstances) unsuitable for Tenant's purposes, shall be taken by
condemnation or right of eminent domain, Landlord or Tenant shall have
the right to terminate this Lease by notice to the other of its desire
to do so, provided that such notice is given not later than thirty (30)
days after Tenant has been deprived of possession. If either party
shall give such notice, then this Lease shall terminate as of the date
of such notice with the same force and effect as if such date were the
date originally established as the expiration date hereof.
Further, if so much of the Building shall be so taken that continued
operation of the Building would be uneconomic as a result of the
taking, Landlord shall have the right to terminate this Lease by giving
notice to Tenant of Landlord's desire to do so not later than thirty
(30) days after Tenant has been deprived of possession of the Premises
(or such portion thereof as may be taken), provided, that Landlord
shall terminate all other leases and occupancy agreements in the
Building affected by the taking. If Landlord shall give such notice,
then this Lease shall terminate as of the date of such notice with the
same force and effect as if such date were the date originally
established as the expiration date hereof.
Should any part of the Premises be so taken or condemned during the
Lease Term hereof, and should this Lease not be terminated in
accordance with the foregoing provisions, and the holder of any
mortgage which includes the Premises as part of the mortgaged premises
or any ground lessor of any ground lease which includes the Site as
part of the demised premises allows the net condemnation proceeds to be
applied to the restoration of the Building, Landlord agrees that after
the determination of the net amount of condemnation proceeds available
to Landlord, Landlord shall use due diligence to put what may remain of
the Premises into proper condition for use and occupation as nearly
like the condition of the Premises prior to such taking as shall be
practicable (excluding Tenant's Property). Notwithstanding the
foregoing, Landlord shall not be obligated to expend for such repair
and restoration any amount in excess of the net condemnation proceeds.
If the Premises shall be affected by any exercise of the power of
eminent domain, then the Annual Fixed Rent, Tenant's share of operating
costs and Tenant's share of real estate
taxes shall be justly and equitably abated and reduced according to the
nature and extent of the loss of use thereof suffered by Tenant; and in
case of a taking which permanently reduces the Rentable Floor Area of
the Premises, a just proportion of the Annual Fixed Rent, Tenant's
share of operating costs and Tenant's share of real estate taxes shall
be abated for the remainder of the Lease Term.
6.4 Landlord shall have and hereby reserves to itself any and all rights to
receive awards made for damages to the Premises, the Buildings, the
Complex and the Site and the leasehold hereby created, or any one or
more of them, accruing by reason of exercise of eminent domain or by
reason of anything lawfully done in pursuance of public or other
authority. Tenant hereby grants, releases and assigns to Landlord all
Tenant's rights to such awards, and covenants to execute and deliver
such further assignments and assurances thereof as Landlord may from
time to time request.
Nothing contained herein shall be construed to prevent Tenant from
prosecuting in any condemnation proceeding a claim for the value of any
of Tenant's usual trade fixtures installed in the Premises by Tenant at
Tenant's expense and for relocation and moving expenses, provided that
such action and any resulting award shall not affect or diminish the
amount of compensation otherwise recoverable by Landlord from the
taking authority.
ARTICLE VII
DEFAULT
7.1 If at any time subsequent to the date of this Lease any one or more of
the following events (herein sometimes called an "Event of Default")
shall occur:
(a) Tenant shall fail to pay the fixed rent, additional
rent or other charges for which provision is made
herein on or before the date on which the same become
due and payable, and the same continues for seven (7)
days after notice from Landlord thereof, or
(b) Landlord having rightfully given the notice specified
in subdivision (a) above twice in any calendar year,
Tenant shall thereafter in the same calendar year
fail to pay the fixed rent, additional rent or other
charges on or before the date on which the same
become due and payable, or
(c) Tenant shall fail to perform or observe any other
term or condition contained in this Lease and Tenant
shall not commence to cure such failure within thirty
(30) days after notice from Landlord to Tenant
thereof and promptly and diligently complete the
curing of the same, or
(d) The estate hereby created shall be taken on execution
or by other process of law, or if Tenant shall be
judicially declared bankrupt or insolvent according
to law, or if any assignment or trust mortgage
arrangement, so- called, shall be made of the
property of Tenant for the benefit of creditors, or
if a receiver, guardian, conservator, trustee in
involuntary bankruptcy or other similar officer shall
be appointed to take charge of all or any substantial
part of Tenant's property by a court of competent
jurisdiction, or if a petition shall be filed for the
reorganization of Tenant under any provisions of the
Bankruptcy Act now or hereafter enacted and the same
shall not be fully and finally dismissed within 60
days after institution of the same, or if Tenant
shall file a petition for such reorganization, or for
arrangements under any provisions of the Bankruptcy
Act now or hereafter enacted and providing a plan for
a debtor to settle, satisfy or extend the time for
payment of debts,
then, and in any of said cases (notwithstanding any license of a former
breach of covenant or waiver of the benefit hereof or consent in a
former instance), Landlord lawfully may, immediately or at any time
thereafter, and without demand or further notice terminate this Lease
by notice to Tenant, specifying a date not less than fourteen (14) days
after the giving of such notice on which this Lease shall terminate,
and this Lease shall come to an end on the date specified therein as
fully and completely as if such date were the date herein originally
fixed for the expiration of the Lease Term, and Tenant will then quit
and surrender the Premises to Landlord; and in the event that this
Lease is terminated under any of the provisions contained in Section
7.1 or shall be otherwise terminated by breach of any obligation of
Tenant, Tenant covenants and agrees forthwith to pay and be liable for,
on the days originally fixed herein for the payment thereof, amounts
equal to the several installments of rent and other charges reserved as
they would, under the terms of this Lease, become due if this Lease had
not been terminated or if Landlord had not entered or re-entered, as
aforesaid, and whether the Premises be relet or remain vacant, in whole
or in part, or for a period less than the remainder of the Term, and
for the whole thereof, but in the event the Premises be relet by
Landlord, Tenant shall be entitled to a credit in the net amount of
rent and other charges received by Landlord in reletting, after
deduction of all expenses incurred in reletting the Premises
(including, without limitation, remodeling costs, brokerage fees and
the like), and in collecting the rent in connection therewith, in the
following manner:
Amounts received by Landlord after reletting shall first be applied
against such Landlord's expenses, until the same are recovered, and
until such recovery, Tenant shall pay, as of each day when a payment
would fall due under this Lease, the amount which Tenant is obligated
to pay under the terms of this Lease (Tenant's liability prior to any
such reletting and such recovery not in any way to be diminished as a
result of the fact that such reletting might be for a rent higher than
the rent provided for in this Lease); when and if such expenses have
been completely recovered, the amounts received from reletting by
Landlord as have not previously been applied shall be credited against
Tenant's obligations as of each day when a payment would fall due under
this Lease, and only the net amount thereof shall be payable by Tenant.
Further, amounts received by Landlord from such reletting for any
period shall be credited only against obligations of Tenant allocable
to such period, and shall not be credited against obligations of Tenant
hereunder accruing subsequent or prior to such period; nor shall any
credit of any kind be due for any period after the date when the term
of this Lease is scheduled to expire according to its terms.
At any time after such termination and whether or not Landlord shall
have collected any damages as aforesaid, as liquidated final damages
and in lieu of all other damages beyond the date of notice from
Landlord to Tenant, at Landlord's election, Tenant shall pay to
Landlord such a sum as at the time of the giving of such notice
represents the amount of the excess, if any, of (a) the discounted
present value, at a discount rate of six percent (6%), of the total
rent and other benefits which would have accrued to Landlord under this
Lease from the date of such notice for what would be the then unexpired
Lease Term if the Lease terms had been fully complied with by Tenant
over and above (b) the discounted present value, at a discount rate of
six percent (6%), of the then cash rental value (in advance) of the
Premises for the balance of the Lease Term.
For the purposes of this Article, if Landlord elects to require Tenant
to pay damages in accordance with the immediately preceding paragraph,
the total rent shall be computed by assuming that Tenant's share of
excess taxes, Tenant's share of excess operating costs and Tenant's
share of excess electrical costs would be, for the balance of the
unexpired Term from the date of such notice, the amount thereof (if
any) for the immediately preceding annual period payable by Tenant to
Landlord.
Nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal
to the maximum allowed by any statute or rule of law in effect at the
time when, and governing the proceedings in which, the damages are to
be proved, whether or not the amount be greater, equal to, or less than
the amount of the loss or damages referred to above.
7.2 Landlord shall in no event be in default in the performance of any of
Landlord's obligations hereunder unless and until Landlord shall have
failed to perform such obligations within thirty (30) days, or such
additional time as is reasonably required to correct any such default,
after notice by Tenant to Landlord properly specifying wherein Landlord
has failed to perform any such obligation.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Tenant covenants and agrees that Tenant will not do or permit anything
to be done in or upon the Premises, or bring in anything or keep
anything therein, which shall increase the rate of insurance on the
Premises or on the Building above the standard rate applicable to
premises being occupied for the use to which Tenant has agreed to
devote the Premises; and Tenant further agrees that, in the event that
Tenant shall do any of the foregoing, Tenant will promptly pay to
Landlord, on demand, any such increase resulting therefrom, which shall
be due and payable as additional rent thereunder.
8.2 Failure on the part of Landlord or Tenant to complain of any action or
non-action on the part of the other, no matter how long the same may
continue, shall never be a waiver by Tenant or Landlord, respectively,
of any of its rights hereunder. Further, no waiver at any time of any
of the provisions hereof by Landlord or Tenant shall be construed as a
waiver of any of the other provisions hereof, and a waiver at any time
of any of the provisions hereof shall not be construed as a waiver at
any subsequent time of the same provisions. The consent or approval of
Landlord or Tenant to or of any action by the other requiring such
consent or approval shall not be construed to waive or render
unnecessary Landlord's or Tenant's consent or approval to or of
subsequent similar act by the other.
No payment by Tenant, or acceptance by Landlord, of a lesser amount
than shall be due from Tenant to Landlord shall be treated otherwise
than as a payment on account. The acceptance by Landlord of a check for
a lesser amount with an endorsement or statement thereon, or upon any
letter accompanying such check, that such lesser amount is payment in
full, shall be given no effect, and Landlord may accept such check
without prejudice to any other rights or remedies which Landlord may
have against Tenant.
8.3 The specific remedies to which Landlord may resort under the terms of
this Lease are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which it may be lawfully entitled
in case of any breach or threatened breach by Tenant of any provisions
of this Lease. In addition to the other remedies provided in this
Lease, Landlord shall be entitled to the restraint by injunction of the
violation or attempted or threatened violation of any of the covenants,
conditions or provisions of this Lease or to a decree compelling
specific performance of any such covenants, conditions or provisions.
8.4 Tenant, subject to the terms and provisions of this Lease on payment of
the rent and observing, keeping and performing all of the terms and
provisions of this Lease on Tenant's part to be observed, kept and
performed, shall lawfully, peaceably and quietly have, hold, occupy and
enjoy the Premises during the Term, without hindrance or ejection by
any persons lawfully claiming under Landlord to have title to the
Premises superior to Tenant, subject, however, to the terms of this
Lease; the foregoing covenant of quiet enjoyment is in lieu of any
other covenant, express or implied; and it is understood and agreed
that this covenant and any and all other covenants of Landlord
contained in this Lease shall be binding upon Landlord and Landlord's
successors only with respect to breaches occurring during Landlord's or
Landlord's successors' respective ownership of Landlord's interest
hereunder, as the case may be.
Further, Tenant specifically agrees to look solely to Landlord's then
equity interest in the Building at the time owned, or in which Landlord
holds an interest as ground lessee, for recovery of any judgment from
Landlord; it being specifically agreed that neither Landlord (original
or successor), nor any beneficiary of any Trust of which any person
holding Landlord's interest is Trustee, shall ever be personally liable
for any such judgment, or for the payment of any monetary obligation to
Tenant. The provision contained in the foregoing sentence is not
intended to, and shall not, limit any right that Tenant might otherwise
have to obtain injunctive relief against Landlord or Landlord's
successors in interest, or any action not involving the personal
liability of Landlord (original or successor), any successor Trustee to
the persons named herein as Landlord, or any beneficiary of any Trust
of which any person holding Landlord's interest is Trustee, to respond
in monetary damages from Landlord's assets other than Landlord's equity
interest aforesaid in the Building.
In no event shall Landlord ever be liable to Tenant for any indirect or
consequential damages suffered by Tenant from whatever cause.
8.5 After receiving notice from any person, firm or other entity that it
holds a mortgage which includes the Premises as part of the mortgaged
premises, or that it is the ground lessor under a lease with Landlord,
as ground lessee, which includes the Premises as a part of the demised
premises, no notice from Tenant to Landlord shall be effective unless
and until a copy of the same is given to such holder or ground lessor,
and the curing of any of Landlord's defaults by such holder or ground
lessor within a reasonable time thereafter (including a reasonable time
to obtain possession of the premises if the mortgagee or ground lessor
elects to do so) shall be treated as performance by Landlord. For the
purposes of this Section 8.5 or Section 8.15, the term "mortgage"
includes a mortgage on a leasehold interest of Landlord (but not one on
Tenant's leasehold interest).
8.6 With reference to any assignment by Landlord of Landlord's interest in
this Lease, or the rents payable hereunder, conditional in nature or
otherwise, which assignment is made to the holder of a mortgage or
ground lease on property which includes the Premises, Tenant agrees:
(a) That the execution thereof by Landlord, and the
acceptance thereof by the holder of such mortgage or
the ground lessor, shall never be treated as an
assumption by such holder or ground lessor of any of
the obligations of Landlord hereunder, unless such
holder, or ground lessor, shall, by notice sent to
Tenant, specifically otherwise elect; and
(b) That, except as aforesaid, such holder or ground
lessor shall be treated as having assumed Landlord's
obligations hereunder only upon foreclosure of such
holder's mortgage and the taking of possession of the
Premises, or, in the case of a ground lessor, the
assumption of Landlord's position hereunder by such
ground lessor. In no event shall the acquisition of
title
to the Building and the land on which the same is
located by a purchaser which, simultaneously
therewith, leases the entire Building or such land
back to the seller thereof be treated as an
assumption, by operation of law or otherwise, of
Landlord's obligations hereunder, but Tenant shall
look solely to such seller-lessee, and its successors
from time to time in title, for performance of
Landlord's obligations hereunder subject to the
provisions of Section 8.4 hereof. In any such event,
this Lease shall be subject and subordinate to the
lease to such purchaser. For all purposes, such
seller-lessee, and its successors in title, shall be
the landlord hereunder unless and until Landlord's
position shall have been assumed by such
purchaser-lessor.
8.7 No act or thing done by Landlord during the Lease Term shall be deemed
an acceptance of a surrender of the Premises, and no agreement to
accept such surrender shall be valid, unless in writing signed by
Landlord. No employee of Landlord or of Landlord's agents shall have
any power to accept the keys of the Premises prior to the termination
of this Lease. The delivery of keys to any employee of Landlord or of
Landlord's agents shall not operate as a termination of the Lease or a
surrender of the Premises.
8.8 Tenant warrants and represents that Tenant has not dealt with any
broker in connection with the consummation of this Lease other than the
broker, person or firm, if any, designated in Section 1.1 hereof; and
in the event any claim is made against the Landlord relative to
dealings with brokers other than the Brokers, if any, designated in
Section 1.1 hereof, Tenant shall defend the claim against Landlord with
counsel of Landlord's selection and save harmless and indemnify
Landlord on account of loss, cost or damage which may arise by reason
of such claim. Landlord agrees that it shall be solely responsible for
the payment of brokerage commissions to the broker, person or firm, if
any, designated in Section 1.1 hereof.
8.9 If any term or provision of this Lease, or the application thereof to
any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and
be enforced to the fullest extent permitted by law.
8.10 The obligations of this Lease shall run with the land, and except as
herein otherwise provided, the terms hereof shall be binding upon and
shall inure to the benefit of the successors and assigns, respectively,
of Landlord and Tenant and, if Tenant shall be an individual, upon and
to his heirs, executors, administrators, successors and assigns. Each
term and each provision of this Lease to be performed by Tenant shall
be construed to be both a covenant and a condition. The reference
contained to successors and assigns of Tenant is not intended to
constitute a consent to subletting or assignment by Tenant.
8.11 Tenant agrees not to record the within Lease, but each party hereto
agrees, on the request of the other, to execute a so-called Notice of
Lease or short form lease in form recordable and complying with
applicable law and reasonably satisfactory to Landlord's attorneys. In
no event shall such document set forth rent or other charges payable by
Tenant under this Lease; and any such document shall expressly state
that it is executed pursuant to the provisions contained in this Lease,
and is not intended to vary the terms and conditions of this Lease.
8.12 Whenever, by the terms of this Lease, notice shall or may be given
either to Landlord or to Tenant, such notice shall be in writing and
shall be sent by registered or certified mail postage prepaid:
If intended for Landlord, addressed to Landlord at the address
set forth on the first page of this Lease (or to such other
address or addresses as may from time to time hereafter be
designated by Landlord by like notice).
If intended for Tenant, addressed to Tenant at the address set
forth on the second page of this Lease except that from and
after the Commencement Date the address of Tenant shall be the
Premises (or to such other address or addresses as may from
time to time hereafter be designated by Tenant by like notice)
with a copy to Xxxxxx X. Xxxxxxxx, Esq., Xxxxx, Xxxx & Xxxxx,
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000.
Except as otherwise provided herein, all such notices shall be
effective when received; provided, that (i) if receipt is refused,
notice shall be effective upon the first occasion that such receipt is
refused or (ii) if the notice is unable to be delivered due to a change
of address of which no notice was given, notice shall be effective upon
the date such delivery was attempted.
Where provision is made for the attention of an individual or
department, the notice shall be effective only if the wrapper in which
such notice is sent is addressed to the attention of such individual or
department.
Time is of the essence with respect to any and all notices and periods
for giving notice or taking any action thereto under this Lease.
8.13 Employees or agents of Landlord have no authority to make or agree to
make a lease or any other agreement or undertaking in connection
herewith. The submission of this document for examination and
negotiation does not constitute an offer to lease, or a reservation of,
or option for, the Premises, and this document shall become effective
and binding only upon the execution and delivery hereof by both
Landlord and Tenant. All negotiations, considerations, representations
and understandings between Landlord and Tenant are incorporated herein
and may be modified or altered only by written agreement
between Landlord and Tenant, and no act or omission of any employee or
agent of Landlord shall alter, change or modify any of the provisions
hereof.
8.14 The titles of the Articles throughout this Lease are for convenience
and reference only, and the words contained therein shall in no way be
held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this Lease.
8.15 This Lease shall be subject and subordinate to any mortgage now or
hereafter on the Site or the Building, or both, and to each advance
made or hereafter to be made under any mortgage, and to all renewals,
modifications, consolidations, replacements and extensions thereof and
all substitutions therefor, provided, that the holder of such mortgage
agrees to recognize the right of Tenant to use and occupy the Premises
upon the payment of rent and other charges payable by Tenant under this
Lease and the performance by Tenant of Tenant's obligations hereunder.
In confirmation of such subordination, Tenant shall execute and deliver
promptly such instruments of subordination as such mortgagee may
request. Tenant hereby appoints such mortgagee (from time to time) as
Tenant's attorney-in-fact to execute such subordination upon default of
Tenant in complying with such mortgagee's (from time to time) request.
In the event that any mortgagee or its respective successor in title
shall succeed to the interest of Landlord, then, at the option of such
mortgagee or successor, this Lease shall nevertheless continue in full
force and effect and Tenant shall and does hereby agree to attorn to
such mortgagee or successor and to recognize such mortgagee or
successor as its landlord. If any holder of a mortgage which includes
the Premises, executed and recorded prior to the date of this Lease,
shall so elect, this Lease and the rights of Tenant hereunder, shall be
superior in right to the rights of such holder, with the same force and
effect as if this Lease had been executed, delivered and recorded, or a
statutory Notice hereof recorded, prior to the execution, delivery and
recording of any such mortgage. The election of any such holder shall
become effective upon either notice from such holder to Tenant in the
same fashion as notices from Landlord to Tenant are to be given
hereunder or by the recording in the appropriate registry or recorder's
office of an instrument in which such holder subordinates its rights
under such mortgage to this Lease.
If in connection with obtaining financing for the Building or Complex,
a bank, insurance company, pension trust or other institutional lender
shall request reasonable modifications in this Lease as a condition to
such financing, Tenant will not unreasonably withhold, delay or
condition its consent thereto, provided that such modifications do not
increase the monetary or other obligations of Tenant hereunder or
materially adversely affect the leasehold interest hereby created.
8.16 Recognizing that Landlord may find it necessary to establish to third
parties, such as accountants, banks, potential or existing mortgagees,
potential purchasers or the like, the then current status of
performance hereunder, Tenant, on the request of Landlord made from
time to time, will promptly furnish to Landlord, or any existing or
potential holder of any mortgage encumbering the Premises, the
Building, the Site and/or the Complex or
any potential purchaser of the Premises, the Building, the Site and/or
the Complex, (each an "Interested Party"), a statement of the status of
any matter pertaining to this Lease, including, without limitation,
acknowledgments that (or the extent to which) each party is in
compliance with its obligations under the terms of this Lease. In
addition, Tenant shall deliver to Landlord, or any Interested Party
designated by Landlord, financial statements of Tenant and any
guarantor of Tenant's obligations under this Lease, as reasonably
requested by Landlord, including, but not limited to financial
statements for the past three (3) years, provided, that Landlord and
any such Interested Party first executes Tenant's confidentiality
non-disclosure agreement in the form attached hereto as Exhibit E.. Any
such status statement or financial statement delivered by Tenant
pursuant to this Section 8.16 may be relied upon by any Interested
Party.
8.17 (A) If Tenant shall at any time default in the performance of any
obligation under this Lease, Landlord shall have the right, but shall
not be obligated, to enter upon the Premises and to perform such
obligation notwithstanding the fact that no specific provision for such
substituted performance by Landlord is made in this Lease with respect
to such default. In performing such obligation, Landlord may make any
payment of money or perform any other act. All sums so paid by Landlord
(together with interest at the rate of two and one-half percentage
points over the then prevailing prime rate in Boston as set by Fleet
Boston) and all costs and expenses in connection with the performance
of any such act by Landlord, shall be deemed to be additional rent
under this Lease and shall be payable to Landlord immediately on
demand. Landlord may exercise the foregoing rights without waiving any
other of its rights or releasing Tenant from any of its obligations
under this Lease.
(B) Landlord shall never be liable for any failure to make repairs
which, under the provisions of this Lease, Landlord has undertaken to
make unless:
(a) Tenant has given notice to Landlord of the need to
make such repairs, or of a condition in the Building
or in the Premises requiring any repair for which
Landlord is responsible; and
(b) Landlord has failed to commence to make such repairs
within a reasonable time after receipt of such
notice.
In the event Landlord fails to make such repairs as are required of
Landlord within thirty (30) days after written notice from Tenant to
Landlord and to the holder of any mortgage on the Premises of which
Landlord has given Tenant notice or of which Tenant has actual notice,
specifying the nature of such repairs (or if such repairs are of the
type which cannot be completed within thirty (30) days, then if
Landlord or the holder of any such mortgage (at the option of such
mortgagee) fails to (i) commence making such repairs within thirty (30)
days after such written notice from Tenant and (ii) thereafter
prosecute such repairs to completion with due diligence given the
nature of such repairs), then thereafter at any time prior to
Landlord's or such mortgagee's commencing such repairs or
subsequent to Landlord or such mortgagee commencing such repairs if
Landlord or such mortgagee has not prosecuted such repairs to
completion with due diligence given the nature of such repairs, Tenant
may, but need not, make such repairs and charge the reasonable cost
thereof to Landlord; provided, however, that in the case of emergency
repairs (i) such notice by Tenant to Landlord and such mortgagee need
not be in writing, and (ii) Tenant may make such emergency repairs and
charge the reasonable cost thereof to Landlord if either Landlord or
such mortgagee has not made such emergency repairs within a reasonable
time after such notice. If Landlord fails to reimburse Tenant for such
reasonable costs within thirty (30) days after the submission to
Landlord of documentation describing the nature of such repair work
performed by or for Tenant, Tenant shall have the right to commence and
prosecute suit against Landlord to collect such reasonable costs.
However, in no event shall Tenant have the right to offset against,
withhold or deduct from Annual Fixed Rent or additional rent payable
under this Lease for any reason relating to this Section 8.17(B).
8.18 Any holding over by Tenant after the expiration of the term of this
Lease shall be treated as a tenancy at sufferance at double the rents
and other charges herein (prorated on a daily basis) and shall
otherwise be on the terms and conditions set forth in this Lease, as
far as applicable; provided, however, that neither the foregoing nor
any other term or provision of this Lease shall be deemed to permit
Tenant to retain possession of the Premises or hold over in the
Premises after the expiration or earlier termination of the Lease Term.
8.19 Any insurance carried by either party with respect to the Premises or
property therein or occurrences thereon shall, if it can be so written
without additional premium or with an additional premium which the
other party agrees to pay, include a clause or endorsement denying to
the insurer rights of subrogation against the other party to the extent
rights have been waived by the insured prior to occurrence of injury or
loss. Each party, notwithstanding any provisions of this Lease to the
contrary, hereby waives any rights of recovery against the other for
injury or loss due to hazards covered by such insurance to the extent
of the indemnification received thereunder.
8.20 (A) Provided that at the time of the exercise of the option to extend
(hereinafter referred to) and at the commencement of the option period
(i) no Event of Default exists and (ii) Tenant has not assigned this
Lease or has not subleased the Premises (except for an assignment or
subletting permitted under Section 5.6.1 or the term of which has
expired) and (iii) this Lease is still in full force and effect, Tenant
shall have the right to extend the Term upon all the same terms,
conditions and provisions herein contained (except for the Annual Fixed
Rent which shall be adjusted during the option period as hereinbelow
set forth) for one (1) period of two (2) years as hereinafter set
forth. The option period is sometimes herein referred to as the
"Extended Term".
(B) If Tenant desires to exercise the then option to extend the Term,
then Tenant shall give notice to Landlord, not earlier than twelve (12)
months nor later than six (6) months prior to the expiration of the
then current Term of this Lease of Tenant's request for
Landlord's quotation of the annual fair market rent for the Premises as
of the commencement date of the Extended Term, such quotation to be
based on the use of the Premises as first class office space in the
Boston West Suburban Market (hereinafter called the "Annual Market
Rent"). Within thirty (30) days after Landlord's receipt of Tenant's
notice requesting such a quotation, Landlord shall notify Tenant of
Landlord's quotation of the Annual Market Rent (which in no event shall
be less than the Annual Fixed Rent for the last year of the Lease Term
then in effect). In order to exercise its rights hereunder, Tenant
shall, within fifteen (15) days after receipt by Tenant of Landlord's
quotation of the Annual Market Rent, give written notice that it
exercises its option to extend the Term of this Lease, in which case
the Term of this Lease shall be extended for an additional term of two
(2) years upon all of the same terms, conditions, covenants and
agreements contained in this Lease except that the Annual Fixed Rent
shall be equal to the Annual Market Rent as quoted by Landlord;
provided, however, in no event shall the Annual Fixed Rent payable
during the option period be less than the Annual Fixed Rent for the
last year of the Lease Term then in effect. Upon the giving of such
notice, this Lease and the Lease Term hereof shall be extended, for the
Extended Term, without the necessity for the execution of any
additional documents, except that Landlord and Tenant agree to enter
into an instrument in writing setting forth the Annual Fixed Rent for
the Extended Term but the failure to so enter into such a written
instrument shall not negate the exercise of the option to extend. Upon
the giving of such notice of extension as aforesaid all references
herein to the Lease Term or the term of this Lease shall be construed
as referring to the Lease Term, as so extended, unless the context
clearly otherwise requires. Notwithstanding anything here contained to
the contrary, in no event shall the Lease Tenn hereof be extended for
more than two (2) years after the expiration of the Original Term
hereof.
8.21 If Landlord shall not have received any payment or installment of rent
on or before the date (the "Due Date") on which the same first becomes
payable under this Lease, the amount of such payment or installment
shall bear interest from the Due Date through and including the date
such payment or installment is received by Landlord, at a rate equal to
the lesser of (i) the rate announced by Fleet Boston from time to time
as its prime or base rate (or if such rate is no longer available, a
comparable rate reasonably selected by Landlord), plus two percent
(2%), or (ii) the maximum applicable legal rate, if any. Such interest
shall be deemed additional rent and shall be paid by Tenant to Landlord
upon demand.
8.22 This Lease shall be governed exclusively by the provisions hereof and
by the law of the Commonwealth of Massachusetts, as the same may from
time to time exist.
EXECUTED as a sealed instrument in two or more counterparts each of which shall
be deemed to be an original.
WITNESS: LANDLORD:
/s/ [illegible] Xxxxx Xxxxxxx /s/ X. X. Xxxxx
---------------------------------
XXXXXX X. XXXXX, FOR THE TRUSTEES
OF ELANDZEE TRUST PURSUANT TO
WRITTEN DELEGATION, BUT NOT
INDIVIDUALLY
TENANT:
CENTRA SOFTWARE, INC.
By: /s/ Xxxxxxx X. Xxxx
--------------------------
Name XXXXXXX X. XXXX
-------------------------
Title PRESIDENT (OR VICE
------------------------
PRESIDENT)
------------------------------
HEREUNTO DULY AUTHORIZED
ATTEST:
By By: /s/ Xxxxxxx X. Xxxxxxx
------------------------ ---------------------------
Name Name XXXXXXX X. XXXXXXX
---------------------- -------------------------
Title SECRETARY (OR Title: TREASURER (OR
-------------------- ------------------------
ASSISTANT SECRETARY ASSISTANT TREASURER)
-------------------------- ------------------------------
HEREUNTO DULY AUTHORIZED
(CORPORATE SEAL)
EXHIBIT A
The premises located in Lexington, Middlesex County, Massachusetts,
being shown on that certain plan entitled "Plan Of Land in Lexington, Mass. For
Boston Properties dated February 17, 1984, prepared by Xxxxxx X. Xxxxx Co., Land
Surveyors and Civil Engineers, a Division of Boston Survey consultants, Inc.,
which plan is recorded with the Middlesex South District Registry of Deeds as
Plan No. 400 of 1984. Said premises are more particularly bounded and described
according to said plan, as follows:
Beginning at a point at the Northerly corner of premises at its
intersection with Bedford Street, thence running S 41 DEG. 48' 54" E
by said Bedford Street, One Hundred Ninety-Two and 28/100
(192.28) feet;
Thence running along a curve on said Bedford Street having a radius of
3200.00', a distance of Two Hundred Five and 87/100 (205.87) feet to a
point;
Thence running S 38 DEG. 07' 44" E, along said Bedford Street,
a distance of Seven and 45/100 (7.45) feet;
Thence running S 12 DEG. 52' 18" E a distance of Fifty-Six and 66/100
(56.66) feet to a Mass. Highway Bound (MHB), as shown on said plan;
Thence running S 33 DEG. 33' 25" E a distance of 230.30 feet to a Mass
Highway Bound (MHB), as shown on said plan;
Thence running by a curve of the Northern Circumferential Highway
(Route 128-Ramp) as shown on said plan, which curve has a radius of
300.00 feet, a distance of Three Hundred and 99/100 (300.99).feet to a
point;
Thence running by said curve of said Northern Circumferential Highway
having a radius of 300.00 feet, a distance of One Hundred One and
79/100 (101.79) feet to a point;
Thence running S 43 DEG. 22' 09" W by said Northern Circumferential
Highway, a distance of Two Hundred Thirty-Two and 94/100 (232.94) feet
to a point;
Thence running by a curve of said Northern Circumferential Highway
having a radius of 280.00 feet, a distance of 95.00 feet to a point;
Thence turning and running N 39 DEG. 30' 59" W a distance of
Forty-Seven and 45/100 (47.45) feet to a point;
Thence turning and running S 54 DEG. 29' 48" W by land N/F of
Bean & Xxxxxx a distance of Seven Hundred Eleven and 14/100 (711.14)
feet to a point;
Thence turning and running N 42 DEG. 11' 12" W, by land N/F of Town of
Lexington, a distance of Two Hundred Seventy-Two (272.00) feet to a
point;
Thence turning and running N 42 DEG. 46' 02" E by said land N/F of
Town of Lexington, a distance of Six Hundred Fifty-Five 16/100
(655.16) feet to a point;
Thence turning and running N 63 DEG. 50' 44" E by said land N/F of
Town of Lexington, a distance of Five Hundred Eighty-Seven and 14/100
(587.14) feet to a point;
Thence turning and running N 53 DEG. 59' 18" E by land N/F of
Lexington Chalet, Inc., a distance of Eighty-One Hundredths (0.81) feet
to a point;
Thence running N 49 DEG. 24' 01" E by said land N/F of
Lexington Chalet, Inc., a distance of Six Hundred Sixty-Seven and
51/100 (667.51) feet to a point;
Thence running N 49 DEG. 40' 06" E by said land N/F of
Lexington Chalet, Inc., and by two lines measuring in total
One Hundred Sixty and 89/100 (160.89) feet to a point;
Thence running N 48 DEG. 13' 46" E by said land N/F of
Lexington Chalet, Inc., a distance of Fifty-Four and
49/100 (54.49) feet to a point;
Thence running N 51 DEG. 33' 50" E, by said land N/F of
Lexington Chalet, Inc., a distance of Fifty-Four and
24/100 (54.24) feet to the point and place of beginning.
Portions of said premises are registered Land and are shown as (i) Xxx
0 Xx Xxxx Xxxxx Xxxx 0000X and (ii) Lot 393 on Land Court Plan 9475-2. Said
registered land is more particularly described in Certificates of Title No.
161938 in Registration Book 939, Page 188.
EXHIBIT C
LANDLORD SERVICES
I. CLEANING:
Cleaning and janitor services as provided below:
A. OFFICE AREAS:
DAILY: (Monday through Friday, inclusive, holidays excepted).
1. Empty all waste receptacles and ashtrays and remove
waste material from the Premises; wash receptacles as
necessary.
2. Sweep and dust mop all uncarpeted areas using a
dust-treated mop.
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all
horizontal surfaces including furniture, office
equipment, window xxxxx, door ledges, chair rails,
and convector tops, within normal reach.
5. Wash clean all water fountains and sanitize.
6. Move and dust under all desk equipment and telephones
and replace same (but not computer terminals,
specialized equipment or other materials).
7. Wipe clean all chrome and other bright work.
8. Hand dust grill work within normal reach.
9. Main doors to premises shall be locked and lights shut off
upon completion of cleaning.
WEEKLY:
1. Dust coat racks and the like.
2. Spot clean entrance doors, light switches and doorways.
QUARTERLY:
1. Render high dusting not reached in daily cleaning to
include:
a) dusting all pictures, frames, charts, graphs and
similar wall hangings.
b) dusting of all vertical surfaces, such as walls,
partitions, doors and door
frames, etc.
c) dusting all pipes, ducts and moldings.
d) dusting of all vertical blinds.
e) dust all ventilating, air conditioning, louvers
and grills.
2. Spray buff all resilient floors.
B. LAVATORIES:
DAILY: (Monday through Friday, inclusive, holidays excepted).
1. Sweep and damp mop.
2. Clean all mirrors, powder shelves, dispensers and
receptacles, bright work, flushometers, piping and
toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins, bowls and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal
receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel
dispensers, sanitary dispensers; materials to be
furnished by Landlord.
MONTHLY:
1. Machine scrub lavatory floors.
2. Wash all partitions and tile walls in lavatories.
3. Dust all lighting fixtures and grills in lavatories.
C. MAIN LOBBIES, ELEVATORS, STAIRWELLS AND COMMON CORRIDORS:
DAILY: (Monday through Friday, inclusive, holidays excepted).
1. Sweep and damp mop all floors, empty and clean waste
receptacles, dispose of waste.
2. Clean elevators, wash or vacuum floors, wipe down walls and
doors.
3. Spot clean any metal work inside lobbies.
4. Spot clean any metal work surrounding building entrance
doors.
5. Sweep all stairwells and dust handrails.
MONTHLY:
1. All resilient tile floors in public areas to be spray
buffed.
D. WINDOW CLEANING:
All exterior windows shall be washed on the inside and outside
surfaces no less than three (3) times per year.
II. HVAC:
A. Heating, ventilating and air conditioning equipment will be
provided with sufficient capacity to accommodate a maximum
population density of one (1) person per one hundred fifty
(150) square feet of useable floor area served, and a combined
lighting and standard electrical load of 3.0 xxxxx per square
foot of useable floor area. In the event Tenant introduces
into the Premises personnel or equipment which overloads the
system's ability to adequately perform its proper functions,
Landlord shall so notify Tenant in writing and supplementary
system(s) may be required and installed by Landlord at
Tenant's expense, if within fifteen (15) days Tenant has not
modified its use so as not to cause such overload.
Operating criteria of the basic system are in accordance with
the Massachusetts Energy Code and shall not be less than the
following:
i) Cooling season indoor conditions of not in excess of
78 degrees Fahrenheit when outdoor conditions are 91
degrees Fahrenheit drybulb and 73 degrees Fahrenheit
wetbulb.
ii) Heating season minimum room temperature of 72 degrees
Fahrenheit when outdoor conditions are 6 degrees
Fahrenheit drybulb.
B. Landlord shall provide heating, ventilating and air
conditioning as normal seasonal charges may require during
Normal Building Operating Hours (8:00 a.m. to 6:00 p.m.,
Monday through Friday, and 8:00 a.m. to 1:00 p.m. on
Saturdays, legal holidays in all cases excepted).
If Tenant shall require air conditioning (during the air
conditioning season) or heating or ventilating during any
season outside Normal Building Operating Hours, Landlord shall
use landlord's best efforts to furnish such services for the
area or areas specified by written request of Tenant delivered
to the Building Superintendent or the Landlord before 3:00
p.m. of the business day preceding the extra usage. For such
services, Tenant shall pay Landlord, as additional rent, upon
receipt of billing, a sum equal to the cost incurred by
Landlord.
III. ELECTRICAL SERVICES:
A. Landlord shall provide electric power for a combined load of
3.0 xxxxx per square foot of useable area for lighting and for
office machines through standard receptacles for the typical
office space.
B. Landlord, at its option, may require separate metering and
direct billing to Tenant for the electric power required for
any special equipment (such as computers and reproduction
equipment) that requires either 3-phase electric power or any
voltage other than 120, or for any other usage in excess of
3.0 xxxxx per square foot.
C. Landlord will furnish and install, at Tenant's expense, all
replacement lighting tubes, lamps and ballasts required by
Tenant. Landlord will clean lighting fixtures on a regularly
scheduled basis at Tenant's expense.
IV. ELEVATORS
Provide passenger elevator service.
V. WATER:
Provide hot water for lavatory purposes and cold water for drinking,
lavatory and toilet purposes.
VI. CARD ACCESS SYSTEM:
Landlord will provide a card access system at one entry door of the
building.
EXHIBIT E
CENTRA SOFTWARE, INC.
CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
THIS AGREEMENT, made as of (the "Effective Date"), by and between
Centra Software, Inc., a Delaware Corporation, having its principal place of
business at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 ("Centra"), and Boston
Properties Limited Partnership having its principal place of business at
Prudential Center 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000-0000 (Boston
Properties).
This Confidentiality/Non-Disclosure Agreement ("Agreement") by and between
Centra and Boston Properties states the obligations of the parties hereto with
respect to Centra's disclosure of confidential and proprietary information of a
financial or commercial nature in connection with the lease hereof. Centra will
not make such disclosures without Boston Properties' agreement to maintain
confidential treatment of such information. The Agreement shall commence on the
date Centra executes this Agreement and shall terminate one year therefrom.
The Authorized Company Representative's signature on this Agreement obligates
any and all members of Boston Properties to uphold the terms and conditions of
Agreement, unless otherwise designated by an Officer of Centra.
As such, the parties hereto agree as follows:
1. Boston Properties will not disclose or use any business information
received of Centra designated as "Confidential," or "Proprietary," or
in like words, "Confidential Information," without the prior written
consent of Centra and then only to the extent specified in such
consent.
2. Such Confidential Information is limited to Centra's financial
information, marketing and sales data and plans, and other information
that may be requested by Boston Properties in connection with the lease
hereof. The Confidential Information may be disclosed to Boston
Properties in writing, in other tangible form, or electronically,
orally, or visually.
3. Boston Properties agrees to treat Confidential Information as it would
its own confidential information and to disseminate it within Boston
Properties only to the extent necessary for the purposes hereof and
only to Boston Properties' employees, lenders, attorneys or consultants
bound to maintain confidentiality.
4. Boston Properties shall at no time, either during or after the term of
this Agreement, or for a period of one (1) year after its expiration:
4.1. Publish, disclose, or otherwise divulge any of Centra's
Confidential Information to any person, except its officers
and employees on a need-to-know basis, or
4.2. Permit its officers, lenders, attorneys or employees to
divulge Centra's Confidential Information without the prior
written consent of Centra.
4.3. Not use Confidential Information except in the course of
duties under these terms and conditions.
4.4. Upon request by Centra, Boston Properties agrees to
immediately return to Centra all of Centra's Confidential
Information in its possession, custody, or control, with a
letter confirming that the Confidential Information has in no
way been reproduced or copied or that all copies have been
returned.
5. The Confidential Information restrictions will not apply to information
which is (1) publicly known at the time of its disclosure, (2) lawfully
received from a third party not bound in a confidential relationship to
Centra, (3) published or otherwise made known to the public by Centra,
(4) generated independently before its receipt from Centra, or (5)
required to be disclosed pursuant to court order, duly authorized
subpoena, or governmental authority or any other administrative or
judicial proceeding or as required by law and notice is provided to
Centra prior to such disclosure.
6. In no event shall Boston Properties be liable for any indirect or
consequential damages in connection with this agreement.
7. This Agreement shall be binding on the parties, and their successors
and assigns. The laws of The Commonwealth of Massachusetts, United
States of America, shall govern this Agreement. Any legal action or
proceeding with respect to this Agreement shall be brought in the
Courts of the Commonwealth of Massachusetts or of the United States of
America for the District of Massachusetts. This Agreement shall remain
in effect with respect to any Confidential Information during the
period of the lease hereof.
IN WITNESS WHEREOF, the authorized representatives of the parties acknowledge
that they have read, understood, and agree to be bound by the terms and
conditions of this agreement, and that this Agreement is executed as of the date
set forth below.
Centra Software, Inc. Boston Properties Limited Partnership
By Boston Properties, Inc., its General Partner:
By: By:
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(Printed or typed) (Printed or typed)
Title: Title:
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Date: Date:
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FIRST AMENDMENT TO LEASE
FIRST AMENDMENT TO LEASE dated as of this ____ day of ____________,
1999, by and between Xxxxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxx as TRUSTEES OF
ELANDZEE TRUST under Declaration of Trust dated MARCH 27, 1972, recorded with
the Middlesex South District Registry of Deeds in Book 12237, Page 161 as
amended by instrument dated January 23, 1991 recorded with said Registry of in
Book 20987, Page 157, but not individually ("Landlord") and CENTRA SOFTWARE,
INC., a Delaware corporation ("Tenant").
R E C I T A L S
By Lease dated July 21, 1999, (the "Lease"), Landlord did lease to
Tenant and Tenant did lease from Landlord 19,349 square feet of rentable floor
area (the "Rentable Floor Area of the Initial Premises") on the second floor of
the building (the "Building") known as and numbered 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx (referred to in the Lease as the "Premises" or
"Tenant's Space") and hereinafter sometimes referred to as the "Initial
Premises".
Tenant has determined to Lease from Landlord an additional 3,490 square
feet of rentable floor area (the "Rentable Floor Area of the Additional
Premises") on the first floor of the Building, which space is shown on Exhibit A
attached hereto (the "Additional Premises").
Landlord and Tenant are entering into this instrument to set forth said
leasing of the Additional Premises, to integrate the Additional Premises into
the Lease and to amend the Lease.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good
and valuable consideration in hand this date paid by each of the parties to the
other, the receipt and sufficiency of which are hereby severally acknowledged,
and in further consideration of the mutual promises herein contained, Landlord
and Tenant hereby agree to and with each other as follows:
1. Effective as of September 27, 1999 (the "Additional Premises
Commencement Date") the Additional Premises shall constitute a
part of the "Premises" (and "Tenant's Space") demised to
Tenant under the Lease, so
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that the "Tenant's Space" (as defined in Section 1.1 of the
Lease) and the "Premises" (as defined and used in the Lease),
shall include the Initial Premises and the Additional
Premises. By way of example, the option to extend the Term of
the Lease contained in Section 8.20 of the Lease shall apply
to the Initial Premises and the Additional Premises
collectively, but not to either space independently.
2. The remainder of the Term of the Lease for the Initial
Premises and the Additional Premises shall be coterminous.
Accordingly, the following is hereby added to the definition
of the "Term" of the Lease as set forth in Section 1.1 of the
Lease:
TERM: As to the Additional Premises, a period
beginning on the Additional Premises
Commencement Date and ending on August 31,
2001, unless sooner terminated or extended
as provided in the Lease as amended.
3. (A) Annual Fixed Rent for the Initial Premises shall continue
to be paid by Tenant as provided in the Lease.
(B) Annual Fixed Rent for the Additional Premises from the
Additional Premises Commencement Date through August 31, 2001,
shall be payable at the annual rate of $97,720.00 (being the
product of (i) $28.00 and (ii) the Rentable Floor Area of the
Additional Premises (being 3,490 square feet)); provided,
however, that Tenant shall not be responsible for payments of
Annual Fixed Rent until December 15, 1999 (the "Additional
Premises Rent Commencement Date").
(C) Annual Fixed Rent for the Initial Premises and the
Additional Premises during the extension option period (if
exercised) shall be as provided in Section 8.20 of the Lease.
4. Notwithstanding that, Tenant's payments for Annual Fixed Rent
shall not commence until the Additional Premises Rent
Commencement Date, Tenant shall comply with all other terms of
the Lease with respect to the Additional Premises as and at
the times provided for in the Lease.
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5. For the purposes of computing Tenant's payments for
electricity (as determined pursuant to Sections 2.5 and 2.8 of
the Lease) and Tenant's Payments for operating expenses
pursuant to Section 2.6 of the Lease, for the portion of the
Lease Term on and after the Additional Premises Commencement
Date, the "Rentable Floor Area of the Premises" shall include
the Rentable Floor Area of the Additional Premises (being
3,490 square feet). For the portion of the Lease Term prior to
the Additional Premises Commencement Date, the Rentable Floor
Area of the Premises shall be as provided in the Lease for
such purposes.
6. (A) From and after the Additional Premises Commencement Date,
for the purposes of computing Tenant's payments for real
estate taxes pursuant to Section 2.7 of the Lease with respect
to the Additional Premises, the following is hereby added to
the definition of "Base Taxes" contained in Section 1.1 of the
Lease:
BASE TAXES: With respect to the Additional Premises
only, Landlord's Tax Expenses (as hereinafter defined
in Section 2.7) for fiscal tax year 2000, being the
period from July 1, 1999 through June 30, 2000.
Such definition shall remain unchanged with respect to the
Initial Premises.
(B) Further, for purposes of determining and calculating the
Tenant's obligations to make payment for real estate taxes
pursuant to Section 2.7 of the Lease respecting the Additional
Premises, (i) all references in Section 2.7 of the Lease to
the "Premises" shall be deemed to be references to the
Additional Premises; (ii) all references in Section 2.7 to the
"Rentable Floor Area of Tenant's Space" shall be deemed to be
references to the Rentable Floor Area of the Additional
Premises (being 3,490 square feet); and (iii) in the
definitions of "Landlord's Tax Expenses Allocable to the
Premises" and "Base Taxes Allocable to the Premises" the
reference to the "Rentable Floor Area of Tenant's Space" shall
mean said Rentable Floor Area of the Additional Premises.
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7. As of the Additional Premises Commencement Date, the
definition of "Number of Parking Spaces" contained in Section
1.1 of the Lease, shall be deleted in its entirety and
replaced with the following:
NUMBER OF
PARKING SPACES: Thirty Six (36) during the period from the
Additional Premises Commencement Date
through February 28, 2000; Forty Six (46)
during the period from March 1, 2000 through
July 31, 2001; and Seventy Six (76) during
the period from August 1, 2001 through the
scheduled expiration date of the Term unless
extended or sooner terminated.
8. Landlord agrees at its expense to clean the carpeting in the
Additional Premises and re-lamp the Additional Premises as may
be required. In addition, Landlord shall provide signage
identifying Tenant's name on the Tenant entry and lobby
directory. The failure of Landlord to complete such work prior
to any particular date shall not entitle Tenant to any
abatement or reduction of Annual Fixed Rent or additional rent
or the right to withhold or set off against Annual Fixed Rent
or additional rent nor give rise to any right to terminate the
Lease or this First Amendment.
9. The 3,848 square feet of space located on the second floor of
the Building (the "3,848 Space") shown on Exhibit B attached
hereto is currently leased to Xxxxxxxx-Xxxx, Inc. (successor
to Xxxxxxxxxx Technology Group, Inc.) pursuant to a lease
dated September 20, 1993 as amended (the "Xxxxxxxxxx Lease").
If upon the expiration or earlier termination of the
Xxxxxxxxxx Lease, Landlord and Tenant enter into an amendment
to the Lease for the leasing of the 3,848 Space (the "3,848
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Amendment"), Landlord agrees upon Tenant's written request to
remove the Additional Premises from the space leased to Tenant
pursuant to the Lease as of the commencement of the term for
the 3,848 Space (the "3,848 Commencement Date") and Tenant
shall be relieved of all obligations under the Lease with
respect to the Additional Premises subsequent to the date of
such removal. Any such removal shall be conditioned upon (i)
Tenant actually occupying the 3,848 Space, (ii) Tenant
commencing rental payments for the 3,848 Space, (iii) there
being no "Event of Default" (as defined in Section 7.1) as of
the date of such removal, (iv) Tenant having paid all Annual
Fixed Rent and additional rent due under the Lease through the
date of such reduction and (v) Tenant shall have requested
such reduction as provided in the previous sentence prior to
the 3,848 Commencement Date, time being of the essence. In the
event the Additional Premises are so removed pursuant to this
Section 8, Tenant shall quit, vacate and surrender the
Additional Premises in the condition required by the Lease
upon the expiration or earlier termination of the Lease Term.
10. (A) Tenant warrants and represents that Tenant has not dealt
with any broker in connection with the consummation of this
First Amendment other than Xxxxxx Xxxxx X'Xxxxxx (the
"Recognized Broker"); and in the event any claim is made
against Landlord relative to dealings by Tenant with brokers
other than the Recognized Broker, Tenant shall defend the
claim against Landlord with counsel of Tenant's selection
first approved by Landlord (which approval will not be
unreasonably withheld) and save harmless and indemnify
Landlord on account of loss, cost or damage which may arise by
reason of such claim.
(B) Landlord warrants and represents that Landlord has not
dealt with any broker in connection with the consummation of
this First Amendment other than the Recognized Broker; and in
the event any claim is made against Tenant relative to
dealings by Landlord with brokers, Landlord shall defend the
claim against Tenant with counsel of Landlord's selection and
save harmless and indemnify Tenant on account of loss, cost or
damage which may arise by reason of such claim.
-5-
11. Except as otherwise expressly provided herein, all capitalized
terms used herein without definition shall have the same
meanings as are set forth in the Lease.
12. Except as herein amended the Lease shall remain unchanged and
in full force and effect. All references to the "Lease" shall
be deemed to be references to the Lease as herein amended.
-6-
EXECUTED as a sealed instrument as of the date and year
first above written.
WITNESS: LANDLORD:
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XXXXXX X. XXXXX, FOR THE TRUSTEES OF
ELANDZEE TRUST PURSUANT TO WRITTEN
DELEGATION, BUT NOT INDIVIDUALLY
ATTEST: TENANT:
By CENTRA SOFTWARE, INC.
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Name
---------------------------
Title SECRETARY (OR By
------------------------- ----------------------------
ASSISTANT SECRETARY) Name
------------------------- --------------------------
Title PRESIDENT (OR VICE
-------------------------
PRESIDENT)
-------------------------
HERETO DULY AUTHORIZED
By
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Name
--------------------------
Title TREASURER (OR ASSISTANT
------------------------
TREASURER)
------------------------
HERETO DULY AUTHORIZED
(CORPORATE SEAL)