Exhibit 10.8
00 XXXXXXXX XXXXXX
XXXXXXXXX, XXXXXXXXXXXXX
Lease Dated January 13, 2005
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, 00 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx.
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: Xxxxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxx, Trustees
of 00 Xxxxxxxx Xxxxxx Trust under Declaration of
Trust dated September 28, 1981 filed with the
Middlesex South Registry as Document No. 616455 as
amended by instruments dated December 10, 1984 and
April 17, 1991 respectively filed with said Registry
District as Document Nos. 675674 and 844541 but not
individually.
Landlord's Original Address: c/o Boston Properties Limited Partnership
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Landlord's Construction Representative: Xxxxxxx Xxxxxxxxxx
Tenant: Synta Pharmaceuticals, Inc., a Delaware corporation.
Tenant's Original Address: 00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Tenant's Construction Representative:
------------------------------------
Commencement Date: January 15, 2005
Second Floor Premises Rent February 15, 2005
Commencement Date:
Third Floor Premises Rent July 1, 2005
Commencement Date:
Original Term: Twenty-five (25) calendar months (plus
the partial month, if any, immediately
following the Commencement Date),
unless extended or sooner terminated as
provided in this Lease.
Extension Option: One (1) period of one (1) year as provided in and on
the terms set forth in Section 2.4.1 hereof.
Term or Lease Term: All references in this Lease or to the Term
or Lease Term shall mean the Original Term
and if extended pursuant to Section 2.4.1, the Original
Term as extended by the exercise of the extension option
unless otherwise specifically provided in this Lease.
The Site: That certain parcel of land known as and numbered 00
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxxxxxx,
being more particularly described in Exhibit A attached
hereto. The Building (as defined below) is the only structure
located on the Site.
The Building: The Building known as and numbered 00 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx.
The Complex: The Building together with all surface parking areas,
the Site and all improvements (including landscaping)
thereon and thereto.
Tenant's Space: A portion of the second (2nd) floor of the Building
(the "Second Floor Premises") and a portion of the
third (3rd) floor of the Building (the "Third Floor
Premises"), in
-2-
accordance with the floor plan annexed
hereto as Exhibit D and incorporated herein by
reference.
Number of Parking Spaces: Seventy-six (76) spaces.
Annual Fixed Rent: (a) With respect to the Second Floor Premises, for
the period commencing on the Second Floor Premises
Rent Commencement Date and ending on the last day of
the Original Term of this Lease at the annual rate of
$268,398.00, being the product of (i) $19.50 and (ii)
the "Rentable Floor Area of the Second Floor
Premises" (hereinafter defined in this Section 1.1).
(b) With respect to the Third Floor Premises, for the
period commencing on the Third Floor Premises Rent
Commencement Date and ending on the last day
of the Original Term of this Lease at the annual rate of
$157,326.00, being the product of (i) $19.50
and (ii) the "Rentable Floor Area of the Third Floor
Premises" (hereinafter defined in this Section 1.1).
(c) During the extension option period (if
exercised), as determined pursuant to Section 2.4.1).
Operating Expenses: As provided in Section 2.6 hereof.
Real Estate Taxes: As provided in Section 2.7 hereof.
Tenant Electricity: Initially as provided in Section 2.5 subject to
adjustment as provided in Section 2.8 hereof.
Additional Rent: All charges and other sums payable by Tenant as set
forth in this Lease, in addition to Annual Fixed Rent.
Rentable Floor Area of Tenant's Space 21,832 rentable square feet, consisting of 13,764
(sometimes also called "Rentable Floor square feet of rentable floor area in the Second
Area of the Premises"): Floor Premises (the "Rentable Floor Area of the
Second Floor Premises") and 8,068 square feet of
rentable floor area in the Third Floor Premises (the
"Rentable Floor Area of the Third Floor Premises").
-3-
Total Rentable Floor Area of the Building: 122,328 rentable square feet.
Permitted Use: General office purposes.
Initial Minimum Limits of Tenant's $5,000,000.00 combined single limit per occurrence on
Commercial General Liability Insurance: a per location basis.
Broker: Xxxxxxxx Xxxxx Xxxxx & Partners
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Security Deposit: $35,477.00
1.2 EXHIBITS.
---------
There are incorporated as part of this Lease:
Exhibit A -- Description of Site
Exhibit B -- Intentionally Omitted
Exhibit C -- Landlord's Services
Exhibit D -- Floor Plan
Exhibit E -- Intentionally Omitted
Exhibit F -- Form of Lien Waivers
1.3 TABLE OF ARTICLES AND SECTIONS.
-------------------------------
ARTICLE I.......................................................................................1
REFERENCE DATA..................................................................................1
1.1 SUBJECTS REFERRED TO..........................................................1
1.2 EXHIBITS......................................................................4
1.3 TABLE OF ARTICLES AND SECTIONS................................................4
ARTICLE II......................................................................................6
BUILDING, PREMISES, TERM AND RENT...............................................................6
2.1 THE PREMISES..................................................................6
-4-
2.2 RIGHTS TO USE COMMON FACILITIES...............................................6
2.3 LANDLORD'S RESERVATIONS.......................................................7
2.4 HABENDUM......................................................................8
2.5 FIXED RENT PAYMENTS...........................................................8
2.6 OPERATING EXPENSES............................................................9
2.7 REAL ESTATE TAXES............................................................11
2.8 TENANT ELECTRICITY...........................................................14
ARTICLE III....................................................................................15
CONDITION OF PREMISES; ALTERATIONS.............................................................15
3.1 CONDITION OF PREMISES........................................................15
3.2 QUALITY AND PERFORMANCE OF WORK..............................................15
3.3 SPECIAL ALLOWANCE............................................................15
ARTICLE IV.....................................................................................16
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS.................................................16
4.1 LANDLORD COVENANTS:..........................................................16
4.2 INTERRUPTIONS AND DELAYS IN SERVICES AND REPAIRS, ETC........................17
ARTICLE V......................................................................................18
TENANT'S COVENANTS.............................................................................18
5.1 PAYMENTS.....................................................................18
5.2 REPAIR AND YIELD UP..........................................................18
5.3 USE..........................................................................18
5.4 OBSTRUCTIONS; ITEMS VISIBLE FROM EXTERIOR; RULES AND REGULATIONS.............19
5.5 SAFETY APPLIANCES............................................................19
5.6 ASSIGNMENT; SUBLEASE.........................................................19
5.7 INDEMNITY; INSURANCE.........................................................25
5.8 PERSONAL PROPERTY AT TENANT'S RISK...........................................26
5.9 RIGHT OF ENTRY...............................................................26
5.10 FLOOR LOAD; PREVENTION OF VIBRATION AND NOISE................................27
5.11 PERSONAL PROPERTY TAXES......................................................27
5.12 COMPLIANCE WITH LAWS.........................................................27
5.13 PAYMENT OF LITIGATION EXPENSES...............................................27
5.14 ALTERATIONS..................................................................28
5.15 VENDORS......................................................................29
ARTICLE VI.....................................................................................30
CASUALTY AND TAKING............................................................................30
6.1 DAMAGE RESULTING FROM CASUALTY...............................................30
6.2 UNINSURED CASUALTY...........................................................31
6.3 RIGHTS OF TERMINATION FOR TAKING.............................................31
6.4 AWARD........................................................................32
-5-
ARTICLE VII....................................................................................32
DEFAULT 32
7.1 TENANT'S DEFAULT.............................................................32
7.2 LANDLORD'S DEFAULT...........................................................36
ARTICLE VIII...................................................................................37
MISCELLANEOUS PROVISIONS.......................................................................37
8.1 EXTRA HAZARDOUS USE..........................................................37
8.2 WAIVER.......................................................................37
8.3 CUMULATIVE REMEDIES..........................................................37
8.4 QUIET ENJOYMENT..............................................................38
8.5 NOTICE TO MORTGAGEE AND GROUND LESSOR........................................39
8.6 ASSIGNMENT OF RENTS..........................................................39
8.7 SURRENDER....................................................................40
8.8 BROKERAGE....................................................................40
8.9 INVALIDITY OF PARTICULAR PROVISIONS..........................................40
8.10 PROVISIONS BINDING, ETC......................................................40
8.11 RECORDING....................................................................41
8.12 NOTICES......................................................................41
8.13 WHEN LEASE BECOMES BINDING...................................................42
8.14 SECTION HEADINGS.............................................................42
8.15 RIGHTS OF MORTGAGEE..........................................................42
8.16 STATUS REPORTS AND FINANCIAL STATEMENTS......................................43
8.17 SELF-HELP....................................................................43
8.18 HOLDING OVER.................................................................44
8.19 NON-SUBROGATION..............................................................44
8.20 SECURITY DEPOSIT.............................................................44
8.21 LATE PAYMENT.................................................................45
8.22 TENANT'S PAYMENTS............................................................45
8.23 WAIVER OF TRIAL BY JURY......................................................46
8.24 GOVERNING LAW................................................................46
ARTICLE II
----------
BUILDING, PREMISES, TERM AND RENT
---------------------------------
2.1 THE PREMISES.
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, 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.
-6-
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; the term "Site"
means all, and also any part of the Land described in Exhibit A, plus
any additions or reductions thereto resulting from the change of any
abutting street line and all parking areas and structures. The term
"Property" means the Building and the Site.
2.2 RIGHTS TO USE COMMON FACILITIES.
-------------------------------
Subject to Landlord's right to change or alter any of the following in
Landlord's discretion as herein provided, 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 area 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. Notwithstanding
anything to the contrary herein, Landlord has no obligation to allow
any particular telecommunication service provider to have access to the
Building or to the Premises except as may be required by applicable
law. If Landlord permits such access, Landlord may condition such
access upon the payment to Landlord by the service provider of fees
assessed by Landlord in its sole discretion.
2.2.1 TENANT'S PARKING.
----------------
In addition, Tenant shall have the right to use the Number of
Parking Spaces (referred to in Section 1.1) of the parking
area, in common with use by other tenants from time to time of
the Complex; provided, however, Landlord shall not be
obligated to furnish stalls or spaces in any parking area
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 except to a permitted assignee or
subtenant as provided in Section 5.6 through Section 5.6.6.
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'S RESERVATIONS.
-----------------------
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
-7-
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. Except in the event of an emergency,
Landlord shall provide Tenant with forty-eight (48) hours advance
notice of the above-referenced work if such work shall adversely
affect Tenant's use of or access to the Premises, the common areas of
the Site and/or the parking area.
2.4 HABENDUM.
--------
Tenant shall have and hold the Premises for a period commencing on the
Commencement Date, and continuing for the Term unless sooner terminated
as provided in Article VI or Article VII or unless extended as provided
in Section 2.4.1.
2.4.1 EXTENSION OPTION.
----------------
(A) On the conditions (which conditions Landlord may waive by
written notice to Tenant) that both at the time of exercise of
the option to extend and at the commencement date of the
extension option period (i) there exists no Event of Default
(defined in Section 7.1), (ii) this Lease is still in full
force and effect, and (iii) Tenant has not assigned this
(except for an assignment permitted without Landlord's consent
under Section 5.6.1 hereof), Tenant shall have the right to
extend the Term hereof upon all the same Annual Fixed Rent,
terms, conditions, covenants and agreements herein contained
(except that the only extension option shall be as set forth
in this Section 2.4.1) for one (1) period of one (1) year as
hereinafter set forth. Such option period is sometimes herein
referred to as an "Extended Term." Notwithstanding any
implication to the contrary Landlord has no obligation to make
any additional payment to Tenant in respect of any
construction allowance or the like or to perform any work to
the Premises as a result of the exercise by Tenant of such
option.
(B) If Tenant desires to exercise the 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 Original Term. Upon the giving of such
notice, this Lease and the Term hereof shall be extended for
the option period, 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
fixed rent); and in such event all references herein to the
Term or the term of this Lease shall be construed as referring
to the Term, as so extended, unless the context clearly
otherwise requires.
2.5 FIXED RENT PAYMENTS.
-------------------
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 Second Floor Premises Rent
-8-
Commencement Date with respect to the Second Floor Premises and on the
Third Floor Premises Rent Commencement Date with respect to the Third
Floor Premises, respectively, 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 applicable Annual
Fixed Rent (sometimes hereinafter referred to as "fixed rent") and (b)
on the 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 $1.00 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 2.4.1 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 Limited
Partnership, Agents at X.X. Xxx 0000, Xxxxxx, Xxxxxxxxxxxxx
00000-0000, and all remittances received by Boston Properties Limited
Partnership, 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 Second Floor
Premises Rent Commencement Date and/or the Third Floor Premises Rent
Commencement Date are a day other than the first day of a calendar
month, the first payment of Annual Fixed Rent 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 Second Floor
Premises Rent Commencement Date and/or the Third Floor Premises Rent
Commencement Date, as applicable, to the first day of the succeeding
calendar month.
Additional Rent 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.
Notwithstanding that the payment of Annual Fixed Rent payable by Tenant
to Landlord with respect to the Second Floor Premises shall not
commence until the Second Floor Premises Rent Commencement Date and
with respect to the Third Floor Premises shall not commence until the
Third Floor Premises Rent Commencement Date, respectively, Tenant shall
be subject to, and shall comply with, all other provisions of this
Lease as and at the times provided in this Lease.
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.
-9-
2.6 OPERATING EXPENSES.
------------------
"Landlord's Operating Expenses" means the cost of operation of the
Building and the Site which shall exclude costs of special services
rendered to tenants (including Tenant) for which a separate charge is
made, 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, worker'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 directly
chargeable to other tenants or 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 Landlord's Operating Expenses if Landlord shall have
reasonably determined that the annual reduction in Landlord's 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; 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.
"Tenant's Share" shall mean 17.85%.
"Operating Expenses Allocable to the Premises" shall mean Tenant's
Share of Landlord's Operating Expenses for and pertaining to the
Building and the Site.
"Base Operating Expenses" shall mean Landlord's Operating Expenses for
calendar year 2005 (that is, the period beginning January 1, 2005 and
ending December 31, 2005). Base Operating Expenses shall not include
market-wide cost increases due to extraordinary circumstances, included
but not limited to Force Majeure (as defined in Section 6.1),
conservation surcharges, boycotts, strikes, embargoes or shortages.
-10-
"Base Operating Expenses Allocable to the Premises" shall mean Tenant's
Share of Base Operating Expenses.
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 Operating Expenses Allocable to the Premises 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 (such amount being hereinafter sometimes referred to as the
"Operating Cost Excess") then, Tenant shall pay to Landlord, as
Additional Rent, the amount of such excess. 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 $1.00 for tenant electricity to be paid by Tenant together
with 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 one hundred and twenty (120) 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 generally accepted accounting practices
certified by a representative of Landlord, showing for the preceding
calendar year or fraction thereof, as the case may be, Base Operating
Expenses, 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 on account of the operating expenses and the amount of
the Operating Cost Excess 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 overpaid by Tenant 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).
In addition, Tenant shall make payments monthly on account of Tenant's
share of increases in Landlord's 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 the Operating Cost Excess 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 Building rather than to any other causes.
-11-
2.7 REAL ESTATE TAXES.
-----------------
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) 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 (such
amount being hereinafter sometimes referred to as the "Tax Excess")
then, on or before the thirtieth (30th) day following receipt by Tenant
of the certified statement referred to below in this Section 2.7, then
Tenant shall pay to Landlord, as Additional Rent, the amount of the Tax
Excess. 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 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 seeking the tax refund or abatement may be charged
against the tax refund or abatement before the adjustments are made for
the Tax Year. Said statement to be rendered to Tenant shall also show
for the preceding Tax Year or fraction thereof as the case may be the
amounts of real estate taxes already paid by Tenant as Additional Rent,
and the amount of real estate taxes 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 the foregoing 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
2.7 with respect to the preceding Tax Year or fraction thereof, or
Landlord shall credit any amounts due from it to Tenant pursuant to the
provisions of this Section 2.7 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
over-payment as aforesaid 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.
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.
-12-
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) "Tenant's Tax Share" means 18.79%.
(iii) "Landlord's Tax Expenses Allocable to the Premises" shall mean
Tenant's Tax Share of Landlord's Tax Expenses.
(iv) "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.
(v) "Base Taxes" means Landlord's Tax Expenses (hereinbefore defined)
for fiscal tax year 2006 (that is, the period beginning July 1,
2005 and ending June 30, 2006).
(vi) "Base Taxes Allocable to the Premises" means Tenant's Tax Share
of Base Taxes.
(vii) "Real estate taxes" means all taxes and special assessments of
every kind and nature and user fees and other like fees assessed
by any governmental authority on the Building or Site which the
Landlord shall become obligated to pay because of or in
connection with the ownership, leasing or operation of the Site,
the Building and the Property (including, without limitation, if
applicable the excise prescribed by Mass Gen Laws 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 and fees for any formal or informal
proceedings for negotiation or abatement of taxes (collectively,
"Abatement Expenses"), which Abatement Expenses shall be excluded
from Base 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. There shall be excluded from such
taxes all late fees or penalties, and 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, or in addition
to, 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
-13-
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
Building were the only property of Landlord.
(viii) If during the Lease Term the Tax Year is changed by applicable
law to less than a full 12-month period, the Base Taxes and Base
Taxes Allocable to the Premises shall each be proportionately
reduced.
2.8 TENANT ELECTRICITY.
------------------
The current cost of furnishing electricity to the base building
components of the Building and the Site is approximately $1.36 per
square foot of the Total Rentable Floor Area of the Building and the
current cost of furnishing electricity to the tenant spaces in the
Building is approximately $1.15 per square foot of the Total Rentable
Floor Area of the Building. The costs of electricity consumption
chargeable to the tenants of the Building are based on the costs
charged to Landlord by the local utility company providing service to
the Building and the Site and are passed through to the tenants without
xxxx-up. 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 and
the Site, 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 $1.00 per square foot of Rentable Floor Area of the Building,
or for any such fraction of a calendar year exceeds the corresponding
fraction of $1.00 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 (i.e. the same proportion of such
excess as the Rentable Floor Area of Tenant's Space bears to the Total
Rentable Floor Area of the Building). In no event shall Tenant be
responsible for any increases in the cost of electricity caused by
another tenant's excessive use. Payments by Tenant on account of such
excess 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
such excess for each calendar year during the Term. If the Landlord
shall reasonably determine that the cost of electricity furnished to
the Tenant at the Premises exceeds the amount being paid under Sections
2.5 and 2.8, then the Landlord may charge the Tenant for such excess
and the Tenant shall promptly pay the same upon billing therefor.
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
-14-
other period covered by the statement. Within thirty (30) days after
the date of the 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 2.8 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 2.8 against monthly installments of Annual Fixed Rent or
Additional Rent next thereafter coming due unless the Lease Term has
expired and Tenant has no other or further obligations to Landlord, in
which case Landlord shall promptly refund such amount to Tenant.
ARTICLE III
-----------
CONDITION OF PREMISES; ALTERATIONS
----------------------------------
3.1 CONDITION OF PREMISES.
---------------------
Tenant shall accept the Premises in their As-Is condition without any
obligation on the Landlord's part to perform any additions,
alterations, improvements, demolition or other work therein or
pertaining thereto.
3.2 QUALITY AND PERFORMANCE OF WORK.
-------------------------------
All construction work required or permitted by this Lease shall be done
in a good and workmanlike manner and in compliance with all applicable
laws, ordinances, rules, regulations, statutes, by-laws, court
decisions, and orders and requirements of all public authorities
("Legal Requirements") and all Insurance Requirements (as defined in
Section 5.14 hereof). All of Tenant's work shall be coordinated with
any work being performed by or for Landlord and in such manner as to
maintain harmonious labor relations. 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
Section 1.1 or any person hereafter designated in substitution or
addition by notice to the party relying. Except to the extent to which
Tenant shall have given Landlord notice of respects in which Landlord
has not performed Landlord's construction obligations under this
Article III (if any) (i) not later than the end of the sixth (6th) full
calendar month next beginning after the Commencement Date with respect
to the heating, ventilating and air conditioning systems servicing the
Premises, and (ii) not later than the third (3rd) full calendar month
next beginning after the Commencement Date with respect to Landlord's
construction obligations under this Article III not referenced in (i)
above, Tenant shall be deemed conclusively to have approved Landlord's
construction and shall have no claim that Landlord has failed to
perform any of Landlord's obligations under this Article III (if any).
Landlord agrees to correct or repair at its expense items which are
then incomplete or do not conform to the work contemplated under the
Plans and as to which, in either case, Tenant shall have given notice
to Landlord, as aforesaid.
-15-
3.3 SPECIAL ALLOWANCE.
-----------------
Landlord shall provide to Tenant a special allowance equal to the
product of (i) $6.00 and (ii) the Rentable Floor Area of the Premises
(the "Tenant Allowance"). The Tenant Allowance shall be used and
applied by Tenant solely on account of the cost of work performed by or
on behalf of Tenant ("Tenant's Work"), which such Tenant's Work shall
be performed in accordance with the terms of this Lease. Provided that
the Tenant (i) has opened for business in the Premises, (ii) has
completed all of such Tenant's Work in accordance with the terms of
this Lease, has paid for all of such Tenant's Work in full and has
delivered to Landlord lien waivers from all persons who might have a
lien as a result of such work, in the recordable forms attached hereto
as Exhibit F, (iii) has delivered to Landlord its certificate
specifying the cost of such Tenant's Work and all contractors,
subcontractors and supplies involved with Tenant's Work, together with
evidence of such cost in the form of paid invoices, receipts and the
like, (iv) has satisfied the requirements of (i) through (iii) above
and made request for such payment on or before May 1, 2006, (v) is not
otherwise in default under this Lease, and (vi) there are no liens
(unless bonded to the reasonable satisfaction of Landlord) against
Tenant's interest in the Lease or against the Building or the Site
arising out of Tenant's Work or any litigation in which Tenant is a
party, then within thirty (30) days after the satisfaction of the
foregoing conditions, the Landlord shall pay to the Tenant the lesser
of the amount of such costs so certified or the amount of the Tenant
Allowance. Notwithstanding the foregoing, Tenant shall have the option
to request Landlord to make two separate disbursements of the Tenant
Allowance (one prior to final completion of the Tenant's Work and one
upon completion of the same), provided that in the case of the request
made prior to final completion (1) Tenant has satisfied the
requirements of items (ii) through (vi) above with respect to that
portion of the Tenant's Work completed prior to the date of the request
and (2) the disbursement requested by Tenant equals $21,832.00 or more.
For the purposes hereof, the cost to be so reimbursed by Landlord shall
include (x) the cost of leasehold improvements, engineering fees,
architectural fees and third-party supervision or management fees and
(y) up to $21,832.00 towards the cost of Tenant's voice and data
cabling, personal property, trade fixtures or trade equipment, moving
expenses or any so-called soft costs.
Notwithstanding the foregoing, Landlord shall be under no obligation to
apply any portion of the Tenant Allowance for any purposes other than
as provided in this Section 3.4, nor shall Landlord be deemed to have
assumed any obligations, in whole or in part, of Tenant to any
contractors, subcontractors, suppliers, workers or materialmen.
Further, in no event shall Landlord be required to make application of
any portion of the Tenant Allowance on account of any supervisory fees,
overhead, management fees or other payments to Tenant, or any partner
or affiliate of Tenant. In the event that such cost of Tenant's Work is
less than the Tenant Allowance, Tenant shall not be entitled to any
payment or credit nor shall there be any application of the same toward
Annual Fixed Rent or Additional Rent owed by Tenant under this Lease.
-16-
ARTICLE IV
----------
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
----------------------------------------------
4.1 LANDLORD COVENANTS:
------------------
4.1.1 SERVICES FURNISHED BY LANDLORD.
------------------------------
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 ADDITIONAL SERVICES AVAILABLE TO TENANT.
---------------------------------------
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.
Tenant agrees to pay to Landlord, as Additional Rent, the
reasonable cost of any such additional Building services
requested by Tenant and for the reasonable cost of any
additions, alterations, improvements or other work performed
by Landlord in the Premises at the request of Tenant within
thirty (30) days after being billed therefor.
4.1.3 ROOF, EXTERIOR WALL, FLOOR SLAB AND COMMON FACILITY REPAIRS.
-----------------------------------------------------------
Except for (a) normal and reasonable wear and use and (b)
damage caused by fire and casualty and by eminent domain, and
except as otherwise provided in Article VI and subject to the
escalation provisions of Section 2.6, (i) to make such repairs
to the structural portions of the Building (including but not
limited to the roof, exterior walls and floor slabs) and to
the common areas and facilities as may be necessary to keep
them in serviceable 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 West Suburban Market.
4.1.4 DOOR SIGNS.
----------
To provide and install, at Landlord's expense, letters or
numerals on the exterior doors to 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.
-17-
4.2 INTERRUPTIONS AND DELAYS IN SERVICES AND REPAIRS, ETC.
-----------------------------------------------------
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 Article VI, shall Tenant be entitled to any
abatement or reduction of rent by reason thereof, or right to terminate
this Lease, 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.
In the event that the electrical, heating, ventilating, air
conditioning, or all elevator service to the Premises shall be shut
down for more than five (5) full and consecutive business days, but
only as a result of causes which are covered by Landlord's loss of
rentals insurance, then, Tenant shall be entitled to an abatement of
Annual Fixed Rent equal to the "Insurance Amount" (hereinafter
defined). The "Insurance Amount" shall be an amount equal to the
payment actually received by Landlord (but only allocable to and on
account of the Premises) for such shut down of electricity service to
the Premises from Landlord's insurance carrier providing such loss of
rents insurance less the amount of any deductible contained in such
loss of rents insurance coverage. Notwithstanding anything herein
contained to the contrary, in no event shall any of the events referred
to in this Section give rise to a claim in Tenant's favor that such
failure constitutes actual or constructive, total or partial, eviction
from the Premises.
-18-
ARTICLE V
---------
TENANT'S COVENANTS
------------------
Tenant covenants during the Term and such further time as Tenant
occupies any part of the Premises:
5.1 PAYMENTS.
--------
To pay when due all fixed rent and Additional Rent and all charges for
utility services rendered to the Premises (except as otherwise provided
in Exhibit C) and, further, as Additional Rent, all charges for
additional services rendered pursuant to Section 4.1.2.
5.2 REPAIR AND YIELD UP.
-------------------
Except as otherwise provided in Article VI and Section 4.1.3, to keep
the Premises in good order, repair and condition, damage by casualty
and 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 similar type and
quality as that injured or broken, damage by fire or taking under the
power of eminent domain 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 in good order, repair and condition, reasonable wear and tear
only excepted, first removing all goods and effects of Tenant and, to
the extent specified by Landlord by notice to Tenant given at the time
Landlord approves Tenant's plans for the installation of the same that
removal will be required upon the expiration or earlier termination of
the Lease Term, the wiring for Tenant's computer, telephone and other
communication systems and equipment whether located in the Premises or
in any other portion of the Building, including all risers and all
alterations and additions made by Tenant and all partitions. Tenant
shall repair any damage caused by such removal and shall restore the
Premises and leave 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 or to the Site caused by Tenant, Tenant's agents,
contractors, employees, sublessees, licensees, concessionaires or
invitees.
5.3 USE.
---
Continuously from the commencement of the Term, to use and occupy the
Premises for the Permitted Use only, and not to injure or deface the
Premises, Building, the Site or any other part of the Complex nor to
permit in the Premises or on the Site any auction sale, vending machine
(except for two (2) vending machines exclusively for use by Tenant's
employees, one per on each floor occupied by Tenant; provided, however,
that (i) Landlord shall have the right to approve the location of each
such vending machine and (ii) Tenant shall be required to remove the
vending machines upon the expiration or earlier termination of this
Lease and repair any damage to the Premises caused by their
installation and removal), or inflammable fluids or chemicals, or
nuisance, or the emission from the Premises of any objectionable noise
or odor, nor to permit in the Premises anything which will in any way
result in the leakage of fluid or the growth of mold, and not to use or
devote the Premises or any part thereof for any purpose other than the
Permitted Uses, nor for any use thereof which is inconsistent with
maintaining the Building as a first class office building in the
quality of its maintenance, use and occupancy, or which is improper,
offensive, contrary to law or ordinance or liable to render necessary
any alteration or addition to the Building. Further, (i) Tenant shall
not,
-19-
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 upon forty-eight (48) hours notice
(except in the event of an emergency) to make such inspections
(including testing) as Landlord shall reasonably determine are
necessary from time to time to determine that Tenant is complying with
the foregoing.
5.4 OBSTRUCTIONS; ITEMS VISIBLE FROM EXTERIOR; RULES AND REGULATIONS.
----------------------------------------------------------------
Not to obstruct in any manner any portion of the Building not hereby
leased or any portion thereof 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 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 Building to conform to such rules and
regulations.
5.5 SAFETY APPLIANCES.
-----------------
To keep the Premises equipped with all safety appliances required by
any public authority because of any use made by Tenant other than for
Tenant's Permitted 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 Use.
5.6 ASSIGNMENT; SUBLEASE.
--------------------
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
-20-
permitted in or consented to by Landlord under Sections 5.6.1-5.6.6
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 provisions of Section 5.6 above and the
provisions of Section 5.6.2, 5.6.3 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 Tenant as of the date of this Lease. If any parent or
subsidiary corporation of Tenant to which this Lease is assigned
or the Premises sublet (in whole or in part) shall cease to be
such a parent or subsidiary corporation, such cessation shall be
considered an assignment or subletting requiring Landlord's
consent, which consent shall not be unreasonably withheld,
delayed or conditioned. Any such assignment or subletting shall
be subject to the provisions of Section 5.6.4 and Section 5.6.6
below.
5.6.2 Notwithstanding the provisions of Section 5.6 above, in the
event Tenant desires to assign this Lease or to sublet the
Premises (in whole or in part), Tenant shall give Landlord a
Proposed Transfer Notice (as defined in Section 5.6.4 hereof) and
Landlord shall have the right at its sole option, to be exercised
within fifteen (15) days after receipt of Tenant's Proposed
Transfer Notice (the "Acceptance Period"), to terminate this
Lease as of a date specified in a notice to Tenant, which date
shall not be earlier than sixty (60) days nor later than one
hundred and twenty (120) days after Landlord's notice to Tenant;
provided, however, that upon the termination date as set forth in
Landlord's notice, all obligations relating to the period after
such termination date (but not those relating to the period
before such termination date) shall cease and promptly upon being
billed therefor by Landlord, Tenant shall make final payment of
all rent and Additional Rent due from Tenant through the
termination date. Notwithstanding the foregoing, in the event
that Tenant shall propose to sublease a portion of the Premises,
Landlord shall only have the right to so terminate this Lease
with respect to the portion of the Premises which Tenant proposes
to sublease (the "Terminated Portion of the Premises") and 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.
-21-
In the event that Landlord elects to terminate this Lease as
aforesaid, Tenant shall have the right upon written notice
delivered to Landlord within fifteen (15) days from receipt of
Landlord's termination notice, to rescind its Proposed Transfer
Notice, at which point Landlord's termination notice shall be
deemed null and void and this Lease shall continue in full force
and effect.
In the event that Landlord shall not exercise its termination
rights as aforesaid, or shall fail to give any or timely notice
pursuant to this Section the provisions of Sections 5.6.3-5.6.6
shall be applicable. This Section 5.6.2 shall not be applicable
to an assignment or sublease pursuant to Section 5.6.1.
5.6.3 Notwithstanding the provisions of Section 5.6 above, but subject
to the provisions of this Section 5.6.3 and the provisions of
Sections 5.6.4, 5.6.5 and 5.6.6 below, in the event that Landlord
shall not have exercised the termination right as set forth in
Section 5.6.2, or shall have failed to give any or timely notice
under Section 5.6.2, then for a period of ninety (90) days (i)
after the receipt of Landlord's notice stating that Landlord does
not elect the termination right, or (ii) after the expiration of
the Acceptance Period in the event Landlord shall not give any or
timely notice pursuant to Section 5.6.2, as the case may be,
Tenant shall have the right to assign this Lease or sublet the
Premises in accordance with the Proposed Transfer Notice given as
provided in Section 5.6.4 provided that, in each instance, Tenant
first obtains the express prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed.
Without limiting the foregoing standard, Landlord shall not be
deemed to be unreasonably withholding its consent to such a
proposed assignment or subleasing if:
(a) if Landlord has comparable space available for lease in the
Building, the proposed assignee or subtenant is a tenant in
the Building or is in active negotiation with Landlord for
premises in the Building, or
(b) the proposed assignee or subtenant is not of good character
and reputation or 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 or quasi-governmental agency which is open
to the public), or
(c) the proposed assignee does not possess adequate financial
capability to perform the Tenant obligations as and when due
or required or the proposed subtenant does not possess
adequate financial capability to perform the subtenant
obligations under the sublease 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
-22-
(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 now 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) any part of the rent payable under the proposed assignment
or sublease shall be based in whole or in part on the income
or profits derived from the Premises or if any proposed
assignment or sublease shall potentially have any adverse
effect on the real estate investment trust qualification
requirements applicable to Landlord and its affiliates, or
(h) the holder of any mortgage or ground lease on property which
includes the Premises does not approve of the proposed
assignment or sublease, or
(i) due to the identity or business of a proposed assignee or
subtenant, such approval would cause Landlord to be in
violation of any covenant or restriction contained in
another lease or other agreement affecting space in the
Building or elsewhere in the Property.
5.6.4 Tenant shall give Landlord notice (the "Proposed Transfer
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
5.6.3 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 5.6.3 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 or assign pursuant to
-23-
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 5.6.2 shall be applicable.
5.6.5 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. The "Assignment/Sublease Net
Revenues" shall be the fixed rent, Additional Rent and all other
charges and sums paid 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 be limited to rent
concessions, brokerage commissions, legal fees and alteration
allowances, in each case actually paid), as set forth in a
statement certified by an appropriate officer of Tenant and
delivered to Landlord within thirty (30) days of the full
execution of the sublease or assignment document, amortized over
the term of the sublease or assignment (it being understood and
agreed that said statement may set forth costs that are not
required to be paid within said thirty-day period, so long as the
obligation to pay the same has been incurred such that the costs
are known at the time the statement is prepared).
All payments of the Assignment/Sublease Profits due Landlord
shall be made within ten (10) days of receipt of same by Tenant.
5.6.6 (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 5.6.3 above, that the assignee or sublessee enter
into a separate written instrument directly with Landlord in a
form and containing terms and provisions reasonably satisfactory
to Landlord to be bound directly to Landlord for all the
obligations of the tenant hereunder, including, without
limitation, the obligation (a) to pay the rent and other amounts
provided for under this Lease (but in the case of a partial
subletting pursuant to Section 5.6.1, such subtenant shall agree
on a pro rata basis to be so bound) and (b) to comply with the
provisions of Sections 5.6 through 5.6.6 hereof. Such assignment
or subletting shall not relieve the tenant named herein of any of
the obligations of the tenant hereunder and 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
-24-
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 or
expiration of the Lease (whether such termination is based upon a
cause beyond Tenant's control, a default of Tenant, the agreement
of Tenant and Landlord or any other reason), the assignment or
sublease shall be terminated.
(B) As Additional Rent Tenant shall pay to Landlord as a fee for
Landlord's review of any proposed assignment or sublease
requested by Tenant and the preparation of any associated
documentation in connection therewith, within thirty (30) days
after receipt of an invoice from Landlord, an amount equal to the
sum of (i) $150.00 per hour for in-house staff and/or (ii)
reasonable out of pocket legal fees or other expenses incurred by
Landlord in connection with such request. In no event shall the
total amount of such fee exceed $2,000.00 in connection with any
single request for consent.
(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 5.6.6 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 5.6.3 shall in no way
be construed to relieve Tenant from obtaining the express consent
in writing of Landlord to any further assignment or subletting.
(E) On or after the occurrence of an "Event of Default" (defined
in Section 7.1), Landlord shall be entitled to one hundred
percent (100%) of any Assignment/Sublease Profits.
(F) Without limiting Tenant's obligations under Section 5.14,
Tenant shall be responsible, at Tenant's sole cost and expense,
for performing all work necessary to comply with Legal
Requirements and Insurance Requirements in connection with any
assignment or subletting hereunder including, without limitation,
any work in connection with such assignment or subletting.
(G) 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
-25-
comply with applicable laws, ordinances, rules and/or regulations
and be approved by Landlord (which such approval shall not be
unreasonably withheld, conditioned or delayed), including,
without limitation, all requirements concerning access and
egress; (ii) in the event the subleased premises are separately
physically demised from the remainder of the Premises, Tenant
shall pay all reasonable costs of separately physically demising
the subleased premises; and (iii) there shall be no more than two
(2) subleases in effect for the Second Floor Premises and two (2)
subleases in effect for the Third Floor Premises at any given
time
5.7 INDEMNITY; INSURANCE.
--------------------
(A) INDEMNITY. To defend with counsel first approved by Landlord (which
approval shall not be unreasonably withheld or delayed), 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 not due to the
omission, fault, willful act, negligence or other misconduct of
Landlord or Landlord's contractors, licensees, agents, servants,
independent contractors or employees, or (ii) resulting from the
failure of Tenant to perform and discharge its covenants and
obligations under this Lease.
(B) INSURANCE. To maintain in full force from the date upon which
Tenant first enters the Premises for any reason, throughout the Term of
this Lease, and thereafter, so long as Tenant is in occupancy of any
part of the Premises, commercial general liability insurance or
comprehensive general liability insurance written on an occurrence
basis with a broad form comprehensive liability endorsement under which
Tenant is the named insured and Landlord and Landlord's managing agent
(and such persons as are in privity of estate with Landlord and
Landlord's managing agent as may be set out in notice from time to
time) are named as additional insureds with limits which shall, at the
commencement of the Term, be at least equal to those stated in Section
1.1 and from time to time during the Term shall be for such higher
limits, if any, as are customarily carried in the Boston West Suburban
Market with respect to similar properties or which may reasonably be
required by Landlord, and worker's compensation insurance with
statutory limits covering all of Tenant's employees working in the
Premises, and to deposit with Landlord on or before the earlier of the
date Tenant enters the Premises or the Commencement Date and concurrent
with all renewals thereof, certificates for such insurance bearing the
endorsement that the policies will not be canceled until after thirty
(30) days' written notice to Landlord. In addition, in the event Tenant
hosts a function in the Premises, Tenant agrees to obtain and maintain,
and cause any persons or parties providing services for such function
to obtain, the appropriate insurance coverages as reasonably determined
by Landlord (including liquor liability, if applicable) and provide
Landlord with evidence of the same. All insurance required to be
maintained by Tenant pursuant to this Lease shall be maintained with
responsible companies qualified to do
-26-
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 PERSONAL PROPERTY AT TENANT'S RISK.
----------------------------------
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, 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 business interruption insurance and insurance against loss or
damage covered by 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. Tenant shall maintain all of its equipment, furniture and
furnishings in good order and repair. In addition, during such time as
Tenant is performing work in or to the Premises, Tenant, at Tenant's
expense, shall also maintain builder's risk insurance for the full
insurable value of such work.
5.9 RIGHT OF ENTRY.
--------------
To permit Landlord and its agents to examine the Premises at reasonable
times and upon at least forty-eight (48) hours prior notice (except in
the event of an emergency) 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 six
(6) months preceding expiration of the Term and to prospective
purchasers and mortgagees at all reasonable times. Landlord and its
agents shall use commercially reasonable efforts to minimize any
unreasonable interference with Tenant's business operations and use of
the Premises in the exercise of the foregoing rights, consistent with
the reason for entry.
5.10 FLOOR LOAD; PREVENTION OF VIBRATION AND NOISE.
---------------------------------------------
Not to place a load upon the Premises exceeding an average rate of 100
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;
-27-
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 PERSONAL PROPERTY TAXES.
-----------------------
To pay promptly when due all taxes which may be imposed upon Tenant's
Property in the Premises to whomever assessed.
5.12 COMPLIANCE WITH LAWS.
--------------------
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
Tenant's Permitted Use. 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.
Landlord at Landlord's expense, shall be responsible for the Premises
complying on the Commencement Date with the requirements of the Federal
Americans With Disabilities Act (the "ADA") in effect on the
Commencement Date; provided, however, that notwithstanding the
foregoing, Tenant at Tenant's expense, shall be responsible for (i) any
additions, alterations or improvements performed by or for Tenant or
any assignee of subtenant of Tenant ("Tenant Improvements") complying
with the ADA and (ii) compliance with the ADA required because of
"Tenant's Specific Use of the Premises" (as defined below) or Tenant
Improvements. The term "Tenant's Specific Use of the Premises" as used
in this Lease shall not refer to the general office use of the
Premises, but shall refer to the specific products and operations
Tenant and any assignee and subtenant of Tenant use in the Premises and
the manner in which Tenant and any assignee and subtenant of Tenant use
such products and conduct such operations.
5.13 PAYMENT OF LITIGATION EXPENSES.
------------------------------
To pay as Additional Rent 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 or in connection
with any bankruptcy case involving Tenant or any guarantor.
5.14 ALTERATIONS.
-----------
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. However, Landlord's determination of matters relating to
-28-
aesthetic issues relating to alterations, additions or improvements
which are visible outside the Premises shall be in Landlord's sole
discretion. Without limiting such standard Landlord shall not be deemed
unreasonable for withholding approval of any alterations or additions
(including, without limitation, any alterations or additions to be
performed by Tenant under Article III) which (a) in Landlord's opinion
might adversely affect any structural or exterior element of the
Building, any area or element outside of the Premises, or any facility
or base building mechanical system serving any area of the Building
outside of the Premises, or (b) involve or affect the exterior design,
size, height, or other exterior dimensions of the Building or (c) will
require unusual expense to readapt the Premises to normal office use on
Lease termination or expiration 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 or expiration without expense to
Landlord, (d) enlarge the Rentable Floor Area of the Premises, or (e)
are inconsistent, in Landlord's judgment, with alterations satisfying
Landlord's standards for new alterations in the Building. 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 and the other requirements of this Lease with respect to
Tenant's insurance obligations (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 nor give right to any other parties. Further,
Tenant acknowledges that Tenant is acting for its own benefit and
account, and that Tenant shall not be acting as Landlord's agent in
performing any work in the Premises. Within thirty (30) days after
receipt of an invoice from Landlord, Tenant shall pay to Landlord as a
fee for Landlord's review of any work or plans (excluding any review
respecting initial improvements performed pursuant to Article III
hereof for which a fee, if any, has previously been paid but including
any review of plans or work relating to any assignment or subletting),
as Additional Rent, an amount equal to the sum of: (i) $150.00 per
hour, plus (ii) third party expenses incurred by Landlord to review
Tenant's plans and Tenant's work. 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. 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 workers 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
-29-
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
$2,000,000.00 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 shall also prepare and submit to Landlord a set of
as-built plans (or, in cases where the alterations, additions or
improvements at issue are not of such a nature that as-built plans
would customarily be prepared or otherwise be reasonably practicable
to obtain, detailed drawings and specifications), in both print and
electronic forms, showing such work performed by Tenant to the
Premises promptly after any such alterations, improvements or
installations are substantially complete and promptly after any wiring
or cabling for Tenant's computer, telephone and other communications
systems is installed by Tenant or Tenant's contractor. Without
limiting any of Tenant's obligations hereunder, Tenant shall be
responsible, as Additional Rent, for the costs of any alterations,
additions or improvements in or to the Building that are required in
order to comply with Legal Requirements as a result of any work
performed by Tenant. Landlord shall have the right to provide such
rules and regulations relative to the performance of any alterations,
additions, improvements and installations by Tenant hereunder and
Tenant shall abide by all such reasonable rules and regulations and
shall cause all of its contractors to so abide including, without
limitation, payment for the costs of using Building services. 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.
5.15 VENDORS.
--------
Any vendors engaged by Tenant to perform services in or to the Premises
including, without limitation, janitorial contractors and moving
contractors shall be coordinated with any work being performed by or
for Landlord and in such manner as to maintain harmonious labor
relations and not to damage the Building or the Property or interfere
with Building construction or operation and shall be performed by
vendors first approved by Landlord.
-30-
ARTICLE VI
----------
CASUALTY AND TAKING
-------------------
6.1 DAMAGE RESULTING FROM CASUALTY.
------------------------------
In case during the Lease Term, the Premises and/or the Building are
damaged by fire or casualty and such fire or casualty damage cannot, in
the ordinary course, reasonably be expected to be repaired within one
hundred eighty (180) 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, either party may, at its election, terminate this
Lease by notice given to the other party 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 the
terminating party 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 shall, promptly after such damage and the
determination of the net amount of insurance proceeds available, use
due diligence to restore the Premises and the Building in the event of
damage thereto (excluding Tenant's Property) into substantially the
same condition as they were in prior to the fire or casualty and 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 according to
the nature and extent of the injury to the Premises, until the Premises
shall have been restored 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.
If such restoration is not completed within six (6) months from the
time that repair work commences, such period to be subject, however, to
extension where the delay in completion of such work is due to Force
Majeure, as defined hereinbelow, (but in no event beyond ten (10)
months from the date of the fire or casualty), Tenant, as its sole and
exclusive remedy, shall have the right to terminate this Lease at any
time after the expiration of such six-month period (as extended), which
right shall continue until the restoration is substantially completed.
Such termination shall be effective as of the thirtieth (30th) day
after the date of receipt by Landlord of Tenant's notice, with the same
-31-
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. When used herein, "Force Majeure"
shall mean any prevention, delay or stoppage due to governmental
regulation, strikes, lockouts, acts of God, acts of war, terrorists
acts, civil commotions, unusual scarcity of or inability to obtain
labor or materials, labor difficulties, casualty or other causes
reasonably beyond Landlord's control or attributable to Tenant's action
or inaction.
6.2 UNINSURED CASUALTY.
------------------
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 sixty (60) 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 RIGHTS OF TERMINATION FOR TAKING.
--------------------------------
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). 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, after the
determination of the net amount of
-32-
condemnation proceeds available to Landlord, to 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 made available to it.
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 AWARD.
-----
Landlord shall have and hereby reserves to itself any and all rights to
receive awards made for damages to the Premises, the Building, 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, and if Tenant shall fail to execute and deliver
the same within fifteen (15) days after notice from Landlord, Tenant
hereby covenants and agrees that Landlord shall be irrevocably
designated and appointed as its attorney-in-fact to execute and deliver
in Tenant's name and behalf all such further assignments thereof which
conform with the provisions hereof.
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 TENANT'S DEFAULT.
----------------
(a) 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:
(i) Tenant shall fail to pay the fixed rent, Additional
Rent or other charges for which provision is made
herein on or before the date
-33-
on which the same become due and payable, and the same
continues for seven (7) days after notice from Landlord
thereof; or
(ii) Landlord having rightfully given the notice specified
in subdivision (i) 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
(iii) Tenant shall assign its interest in this Lease or
sublet any portion of the Premises in violation of the
requirements of Section 5.6 through 5.6.5 of this
Lease; or
(iv) Tenant shall neglect or fail to perform or observe any
other covenant herein contained on Tenant's part to be
performed or observed and Tenant shall fail to remedy
the same within thirty (30) days after notice to Tenant
specifying such neglect or failure, or if such failure
is of such a nature that Tenant cannot reasonably
remedy the same within such thirty (30) day period,
Tenant shall fail to commence promptly to remedy the
same and to prosecute such remedy to completion with
diligence and continuity; or
(v) Tenant's leasehold interest in the Premises shall be
taken on execution or by other process of law directed
against Tenant; or
(vi) Tenant shall make an assignment for the benefit of
creditors or shall file a voluntary petition in
bankruptcy or shall be adjudicated bankrupt or
insolvent, or shall file any petition or answer seeking
any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar
relief for itself under any present or future Federal,
State or other statute, law or regulation for the
relief of debtors, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver
or liquidator of Tenant or of all or any substantial
part of its properties, or shall admit in writing its
inability to pay its debts generally as they become
due; or
(vii) A petition shall be filed against Tenant in bankruptcy
or under any other law seeking any reorganization,
arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or
future Federal, State or other statute, law or
regulation and shall remain undismissed or unstayed for
an aggregate of ninety (90) days (whether or not
consecutive), or if any debtor in possession (whether
or not Tenant) trustee, receiver or liquidator of
Tenant or of all or any substantial part of its
properties or of the Premises shall be appointed
without the consent or acquiescence of
-34-
Tenant and such appointment shall remain unvacated or
unstayed for an aggregate of ninety (90) days (whether
or not consecutive)--
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 written notice to Tenant, specifying a
date not less than ten (10) 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 (Tenant hereby waiving any rights of
redemption), and Tenant will then quit and surrender the Premises
to Landlord, but Tenant shall remain liable as hereinafter
provided.
(b) If this Lease shall have been terminated as provided in this
Article, then Landlord may re- enter the Premises, either by
force, summary proceedings, ejectment or otherwise, and remove
and dispossess Tenant and all other persons and any and all
property from the same, as if this Lease had not been made.
(c) In the event that this Lease is terminated under any of the
provisions contained in Section 7.1 (a) 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 relet 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 reasonable 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:
Landlord agrees to use reasonable efforts to relet
the Premises after Tenant vacates the same in the
event that this Lease is terminated based upon a
default by Tenant hereunder. The marketing of the
Premises in a manner similar to the manner in which
Landlord markets other premises within Landlord's
control in the Building shall be deemed to have
satisfied Landlord's obligation to use "reasonable
efforts." In no event shall Landlord be required to
(i) solicit or entertain negotiations with any other
prospective tenants for the Premises until Landlord
obtains full and unappealable legal right to relet
the Premises free of any claim of Tenant, (ii) relet
the Premises before leasing other vacant space in the
Building, (iii) lease the Premises for a rental less
than the current fair market rental then prevailing
for similar office space in the Building, or (iv)
enter into a
-35-
lease with any proposed tenant that does
not have, in Landlord's reasonable opinion,
sufficient financial resources or operating
experience to operate the Premises in a first class
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.
(d)(i) At any time after such termination and whether or not Landlord
shall have collected any damages as aforesaid, Tenant shall pay
to Landlord as liquidated final damages and in lieu of all other
damages beyond the date of notice from Landlord to Tenant, at
Landlord's election, such a sum as at the time of the giving of
such notice represents the amount of the excess, if any, 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 the then cash
rental value (in advance) of the Premises for the balance of the
Lease Term.
(d)(ii) 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.
(e) In case of any Event of Default, re-entry, dispossession by
summary proceedings or otherwise, Landlord may (i) re-let the
Premises or any part or parts thereof, either in the name of
Landlord or otherwise, for a term or terms which may at
Landlord's option be equal to or less than or exceed the period
which would otherwise have constituted the balance of the Term of
this Lease and may grant
-36-
concessions or free rent to the extent that Landlord considers
advisable or necessary to re-let the same and (ii) may make such
alterations, repairs and decorations in the Premises as Landlord
in its sole judgment considers advisable or necessary for the
purpose of reletting the Premises; and the making of such
alterations, repairs and decorations shall not operate or be
construed to release Tenant from liability hereunder as
aforesaid. Landlord shall in no event be liable in any way
whatsoever for failure to re-let the Premises, or, in the event
that the Premises are re-let, for failure to collect the rent
under re-letting.
(f) The specified remedies to which Landlord may resort hereunder are
not intended to be exclusive of any remedies or means of redress
to which Landlord may at any time be entitled lawfully, and
Landlord may invoke any remedy (including the remedy of specific
performance) allowed at law or in equity as if specific remedies
were not herein provided for. Further, nothing contained in this
Lease shall limit or prejudice the right of Landlord to prove and
obtain in proceedings for bankruptcy or insolvency by reason of
the termination of this Lease, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, the damages are to be
proved, whether or not the amount be greater, equal to, or less
than the amount of the loss or damages referred to above.
(g) In lieu of any other damages or indemnity and in lieu of the
recovery by Landlord of all sums payable under all the foregoing
provisions of this Section 7.1, Landlord may elect to collect
from tenant, by notice to Tenant, at any time after this Lease is
terminated under any of the provisions contained in this Article
VII or otherwise terminated by breach of any obligation of Tenant
and before such full recovery, and Tenant shall thereupon pay, as
liquidated damages, an amount equal to the sum of the Annual
Fixed Rent and all Additional Rent payable for the twelve (12)
months ended next prior to the such termination plus the amount
of Annual Fixed Rent and Additional Rent of any kind accrued and
unpaid at the time of such election plus any and all expenses
which the Landlord may have incurred for and with respect of the
collection to any of such rent.
7.2 LANDLORD'S DEFAULT.
------------------
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. The Tenant shall not assert
any right to deduct the cost of repairs or any monetary claim against
the Landlord from rent thereafter due and payable, but shall look
solely to the Landlord for satisfaction of such claim.
-37-
ARTICLE VIII
------------
MISCELLANEOUS PROVISIONS
------------------------
8.1 EXTRA HAZARDOUS USE.
-------------------
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 invalidate or 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 WAIVER.
------
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 CUMULATIVE REMEDIES.
-------------------
Except as expressly provided in this Lease, 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 such party 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.
-38-
8.4 QUIET ENJOYMENT.
---------------
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 (exclusive of any period during
which Tenant is holding over after the termination or expiration of
this Lease without the consent of Landlord), without hindrance or
ejection by any persons lawfully claiming under Landlord to have title
to the Premises superior to Tenant; 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, including ground or master lessees,
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 partner in or of Landlord, nor any beneficiary
of any Trust of which any person holding Landlord's interest is
trustee, nor any member, manager, partner, director or stockholder, nor
Landlord's managing agent, 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 partner in or of Landlord, 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, or of any manager, member, partner, director or
stockholder of Landlord or of Landlord's managing agent to respond in
monetary damages from Landlord's assets other than Landlord's equity
interest aforesaid in the Building, but in no event shall Tenant have
the right to terminate or cancel this Lease or to withhold rent or to
set-off any claim or damages against rent as a result of any default by
Landlord or breach by Landlord of its covenants or any warranties or
promises hereunder, except in the case of a wrongful eviction of Tenant
from the demised premises (constructive or actual) by Landlord
continuing after notice to Landlord thereof and a reasonable
opportunity for Landlord to cure the same. In no event shall Landlord
ever be liable to Tenant for any indirect or consequential damages or
loss of profits or the like. In the event that Landlord shall be
determined to have acted unreasonably in withholding any consent or
approval under this Lease, the sole recourse and remedy of Tenant in
respect thereof shall be to specifically enforce Landlord's obligation
to grant such consent or approval, and in no event shall the Landlord
be responsible for any damages of whatever nature in respect of its
failure to give such consent or approval nor shall the same otherwise
affect the obligations of Tenant under this Lease or act as any
termination of this Lease.
-39-
8.5 NOTICE TO MORTGAGEE AND GROUND LESSOR.
-------------------------------------
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
(provided Tenant has received written notice of such holder or ground
lessor, including correct addresses, prior to the date Tenant sends its
notice), 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 ASSIGNMENT OF RENTS.
-------------------
With reference to any assignment by Landlord or 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 such purchaser-lessor, 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 provided that such purchaser 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 under this Lease and provided that
Tenant agrees to attorn 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.
-40-
8.7 SURRENDER.
---------
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 BROKERAGE.
---------
(A) Tenant warrants and represents that Tenant has not dealt with any
broker, finder or other agent in connection with the consummation of
this Lease other than the Recognized Broker, if any, designated in
Section 1.1 hereof; and in the event any claim is made against the
Landlord relative to dealings by Tenant with brokers, finders or other
agents other than the Recognized Broker, if any, designated in Section
1.1 hereof, 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, finder or other agent in connection with the consummation
of this Lease other than the Recognized Broker, if any, designated in
Section 1.1 hereof; and in the event any claim is made against the
Tenant relative to dealings by Landlord with brokers, finders or other
agents other than the Recognized Broker, if any, designated in Section
1.1 hereof, 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. Landlord agrees that it shall be solely responsible for the
payment of brokerage commissions to the Recognized Broker for the
Original Term of this Lease, if any, designated in Section 1.1 hereof.
8.9 INVALIDITY OF PARTICULAR PROVISIONS.
-----------------------------------
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 PROVISIONS BINDING, ETC.
-----------------------
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
-41-
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 RECORDING.
---------
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 both Landlord's and
Tenant'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 NOTICES.
-------
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 overnight commercial courier or by registered or
certified mail postage or delivery charges prepaid, as the case may be:
If intended for Landlord, addressed to Landlord at the address
set forth in Article I of this Lease (or to such other address
or addresses as may from time to time hereafter be designated
by Landlord by like notice) with a copy to Landlord,
Attention: General Counsel.
If intended for Tenant, addressed to Tenant at the address set
forth in Article I 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).
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, (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 or (iii) if the notice address is
a post office box number, notice shall be effective the day after such
notice is sent as provided hereinabove.
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.
Any notice given by an attorney on behalf of Landlord or by Landlord's
managing agent shall be considered as given by Landlord and shall be
fully effective.
-42-
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 WHEN LEASE BECOMES BINDING.
--------------------------
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 SECTION HEADINGS.
----------------
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 RIGHTS OF MORTGAGEE.
-------------------
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 rights of Tenant under this Lease (including
the right 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 which event Tenant shall
agree to attorn to such holder and its successors as landlord. In
confirmation of such subordination and recognition, Tenant shall
execute and deliver promptly such instruments of subordination and
recognition as such mortgagee may reasonably 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, 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
-43-
office of an instrument in which such holder subordinates its rights
under such mortgage to this Lease.
If in connection with obtaining financing 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, or materially decrease the
obligations of Landlord hereunder.
8.16 STATUS REPORTS AND FINANCIAL STATEMENTS.
---------------------------------------
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 (but no more often than once during any twelve (12) month
period), 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. 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 SELF-HELP.
---------
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 one and one-half percentage
points over the then prevailing prime rate in Boston as set by Bank of
America, N.A., or its successor (but in no event greater than the
maximum rate permitted by applicable law) 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.
-44-
8.18 HOLDING OVER.
------------
Any holding over by Tenant after the expiration of the term of this
Lease shall be treated as a tenancy at sufferance and shall be on the
terms and conditions as set forth in this Lease, as far as applicable
except that Tenant shall pay as a use and occupancy charge an amount
equal to the greater of (x) 150% of the Annual Fixed Rent and
Additional Rent calculated (on a daily basis) at the highest rate
payable under the terms of this Lease, or (y) the fair market rental
value of the Premises, in each case for the period measured from the
day on which Tenant's hold-over commences and terminating on the day on
which Tenant vacates the Premises. In addition, Tenant shall save
Landlord, its agents and employees harmless and will exonerate, defend
and indemnify Landlord, its agents and employees from and against any
and all damages which Landlord may suffer on account of Tenant's
hold-over in the Premises after the expiration or prior termination of
the term of this Lease. Nothing in 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. All property which
remains in the Building or the Premises after the expiration or
termination of this Lease shall be conclusively deemed to be abandoned
and may either be retained by Landlord as its property or sold or
otherwise disposed of in such manner as Landlord may see fit. If any
part thereof shall be sold, then Landlord may receive the proceeds of
such sale and apply the same, at its option against the expenses of the
sale, the cost of moving and storage, any arrears of rent or other
charges payable hereunder by Tenant to Landlord and any damages to
which Landlord may be entitled under this Lease and at law and in
equity.
8.19 NON-SUBROGATION.
---------------
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 (or which would
have been covered had such party carried the insurance required to be
carried by it under the Lease) to the extent of the indemnification
received under such insurance policy. This waiver of rights by Tenant
shall apply to, and be for the benefit of, Landlord's managing agent.
8.20 SECURITY DEPOSIT.
----------------
If, in Section 1.1 hereof, a security deposit is specified, Tenant
agrees that the same will be paid upon execution and delivery of this
Lease, and that Landlord shall hold the same, throughout the term of
this Lease (including any extension thereof), as security for the
performance by Tenant of all obligations on the part of Tenant to be
kept and performed. Landlord shall have the right from time to time
without prejudice to any other remedy Landlord may have on account
thereof, to apply such deposit, or any part thereof, to
-45-
Landlord's damages arising from any default on the part of Tenant. If
Landlord so applies all or any portion of such deposit, Tenant shall
within seven (7) days after notice from Landlord deliver cash to
Landlord in an amount sufficient to restore such deposit to the full
amount stated in Section 1.1. Tenant not then being in default and
having performed all of its obligations under this Lease, including
the payment of all Annual Fixed Rent, Landlord shall return the
deposit, or so much thereof as shall not have theretofore been applied
in accordance with the terms of this Section 8.20, to Tenant on the
expiration or earlier termination of the term of this Lease and
surrender possession of the Premises by Tenant to Landlord in the
condition required in the Lease at such time. While Landlord holds
such deposit, Landlord shall have no obligation to pay interest on the
same and shall have the right to commingle the same with Landlord's
other funds. If Landlord conveys Landlord's interest under this Lease,
the deposit, or any part thereof not previously applied, may be turned
over by Landlord to Landlord's grantee, and, if so turned over, Tenant
agrees to look solely to such grantee for proper application of the
deposit in accordance with the terms of this Section 8.20, and the
return thereof in accordance herewith.
Neither the holder of any mortgage nor the lessor in any ground lease
on property which includes the Premises shall ever be responsible to
Tenant for the return or application of any such deposit, whether or
not it succeeds to the position of Landlord hereunder, unless such
deposit shall have been received in hand by such holder or ground
lessor.
8.21 LATE PAYMENT.
------------
If Landlord shall not have received any payment or installment of
Annual Fixed Rent or Additional Rent (the "Outstanding Amount") on or
before the date on which the same first becomes payable under this
Lease (the "Due Date"), the amount of such payment or installment shall
incur a late charge equal to the sum of: (a) five percent (5%) of the
Outstanding Amount for administration and bookkeeping costs associated
with the late payment and (b) interest on the Outstanding Amount 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 Bank of America, N.A., (or its successor) 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.
Notwithstanding the foregoing, Landlord agrees that such late charge
will not be imposed upon the first late payment under this Lease until
five (5) days after the date on which such payment first became due and
payable.
8.22 TENANT'S PAYMENTS.
-----------------
Each and every payment and expenditure, other than Annual Fixed Rent,
shall be deemed to be Additional Rent hereunder, whether or not the
provisions requiring payment of such amounts specifically so state, and
shall be payable, unless otherwise provided in this Lease, within
twenty (20) days after written demand by Landlord, and in the case of
the
-46-
non-payment of any such amount, Landlord shall have, in addition to
all of its other rights and remedies, all the rights and remedies
available to Landlord hereunder or by law in the case of non-payment of
Annual Fixed Rent. Unless expressly otherwise provided in this Lease,
the performance and observance by Tenant of all the terms, covenants
and conditions of this Lease to be performed and observed by Tenant
shall be at Tenant's sole cost and expense. If Tenant has not objected
to any statement of Additional Rent which is rendered by Landlord to
Tenant within ninety (90) days after Landlord has rendered the same to
Tenant, then the same shall be deemed to be a final account between
Landlord and Tenant not subject to any further dispute. In the event
that Tenant shall seek Landlord's consent or approval under this Lease,
then Tenant shall reimburse Landlord, upon demand, as Additional Rent,
for all reasonable costs and expenses, including legal and
architectural costs and expenses, incurred by Landlord in processing
such request, whether or not such consent or approval shall be given.
8.23 WAIVER OF TRIAL BY JURY.
-----------------------
To induce Landlord to enter into this Lease, Tenant hereby waives any
right to trial by jury in any action, proceeding or counterclaim
brought by either Landlord or Tenant on any matters whatsoever arising
out of or any way connected with this Lease, the relationship of the
Landlord and the Tenant, the Tenant's use or occupancy of the Premises
and/or any claim of injury or damage, including but not limited to, any
summary process eviction action.
8.24 GOVERNING LAW.
----------------
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.
-47-
EXECUTED as a sealed instrument in two or more counterparts each of which
shall be deemed to be an original.
WITNESS: LANDLORD:
/s/ Illegible By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------------------- ----------------------------------------------
XXXXX X. XXXXXXX, FOR THE TRUSTEES OF 00
XXXXXXXX XXXXXX TRUST PURSUANT TO WRITTEN
DELEGATION BUT NOT INDIVIDUALLY
TENANT:
ATTEST: SYNTA PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. XxXxxxxx, Xx.
------------------------------------------ ------------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxx X. XxXxxxxx, Xx.
------------------------------------------ ------------------------------------------
Title: (Secretary or Assistant Secretary) Title: (President or Vice President)
------------------------------------------ ------------------------------------------
Hereto duly authorized
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
------------------------------------------
Title: (Treasurer or Assistant Treasurer)
------------------------------------------
Hereto duly authorized
CORPORATE SEAL
-48-
EXHIBIT A
---------
DESCRIPTION OF SITE
That certain parcel of land situate in Lexington in the County of Middlesex and
Commonwealth of
Massachusetts, described as follows:
SOUTHEASTERLY by Xxxxxxxx Avenue, two hundred thirty-seven and
47/100 feet;
SOUTHEASTERLY by a curving line forming the junction of said
Xxxxxxxx Avenue and Xxxxxxxx Place, as shown on
plan hereinafter mentioned, thirty-nine and 27/100
feet;
SOUTHWESTERLY five hundred thirty-two and 23/100 feet, and
SOUTHWESTERLY, SOUTHERLY and SOUTHEASTERLY one hundred ninety and 25/100 feet,
by said Xxxxxxxx Place;
SOUTHERLY by lot 9 on said plan, three hundred seventy-four and
57/100 feet;
SOUTHWESTERLY three hundred sixty-seven and 65/100 feet;
NORTHWESTERLY thirty-one and 12/100 feet, and
NORTHWESTERLY again, eight hundred ninety and 63/100 feet, by land
now or formerly of The United States of America;
NORTHEASTERLY by said United States of America land and by land
now or formerly of Xxxx X. O(`Connor et al, nine
hundred thirty-three and 87/100 feet.
Said parcel is shown as lot 10 on said plan, (Plan No.31330D).
All of said boundaries are determined by the Court to be located as
shown on a subdivision plan, as approved by the Court, filed in the Land
Registration Office, a copy of which is filed in the Registry of Deeds for the
South Registry District of Middlesex County in Registration Book 835, Page 146,
with Certificate 141096.
The above described land is subject to and has the benefit of the
ditches as approximately shown on said plan at date of original decree, (May 17,
1963).
Exhibit A
Page 1 of 3
So much of the above described land as is included within the area marked
"Tennessee Gas Transmission Company Easement 30' wide" is subject to the
easements set forth in a taking by the Northeastern Gas Transmission Company,
dated July 13, 1951 and duly recorded in Book 7772, Page 162.
The above described land is subject to an Avigation Easement set forth in a
Declaration of Taking by the United States of America dated February 12, 1954
recorded with the Middlesex South District Registry of Deeds in Book 8219, Page
421 and more particularly shown as "Avigation Easement A-130E-1" on Plan No.
31330-D (referred to above).
The above described land is subject to an Order by the Town of Lexington
for construction of water main in Xxxxxxxx Avenue, Document No. 461902 as
affected by Certificate for Dissolving Betterments filed as Document No. 499500.
The above described land is subject to a Grant of Easement from Xxxxxx X.
Xxxxxxxx et al Trs. to the Town of Lexington to construct and maintain sewer in
Xxxxxxxx Xxxxx, Xxxxxxxx Xx. 000000.
The above described land is subject to a grant of Easement over 20 feet
wide drain easement (i) for the benefit of lot 9 in common with others entitled
thereto, set forth in Document 511666 and (ii) set forth in Document No. 479843
for the benefit of lot 7 shown on plan recorded with said Document No. 479843.
The above described land is subject to a Taking of easement by the Town of
Lexington in Xxxxxxxx Xxxxx, Xxxxxxxx Xx. 000000.
The above described land is subject to and has the benefit of a Grant of
Easement and Reservation from Xxxxxx X. Xxxxxxxx et al Trs. to the Town of
Lexington for conservation purposes, Document No. 616453.
The above described land is subject to and has the benefit of the
following:
A. Order of Conditions issued by the Town of Lexington Conservation
Commission filed as Document No. 616456 as extended by Extension
Permits issued by said Conservation Commission filed as Document Nos.
627154, 635069, 655552 and 669180.
B. Decision of the Town of Lexington Board of Appeals filed as Document
No. 616457.
C. Decision of the Town of Lexington Board of Appeals filed as Document
No. 616458.
Exhibit A
Page 2 of 3
D. Decision of the Town of Lexington Board of Appeals filed as Document
No. 616459.
E. Decision of the Town of Lexington Board of Appeals filed as Document
No. 634489.
F. Decision of the Town of Lexington Board of Appeals filed as Document
No. 646344.
G. Decision of the Town of Lexington Board of Appeals filed as Document
No. 646345.
H. Decision of the Town of Lexington Board of Appeals filed as Document
No. 646346.
The above described land is subject to an Easement granted to Boston Edison
Company filed as Document No. 672152.
The above described land is subject to such other easements, agreements and
matters of record, if any, insofar as in force and applicable.
Exhibit A
Page 3 of 3
EXHIBIT C
---------
LANDLORD SERVICES
I. CLEANING
--------
Cleaning and janitorial services shall be provided as needed Monday through
Friday, exclusive of holidays, Saturdays and Sundays.
A. OFFICE AREAS
------------
Cleaning and janitorial services to be provided in the office areas
shall include:
1. Vacuuming, damp mopping of resilient floors and trash
removal.
2. Dusting of horizontal surfaces within normal reach (tenant
equipment to remain in place).
3. High dusting and dusting of vertical blinds to be rendered
as needed.
B. LAVATORIES
----------
Cleaning and janitorial services to be provided in the common area
lavatories of the building shall include:
1. Dusting, damp mopping of resilient floors, trash removal,
sanitizing of basins, bowls and urinals as well as cleaning
of mirrors and bright work.
2. Refilling of soap, towel, tissue and sanitary dispensers to
be rendered as necessary.
3. High dusting to be rendered as needed.
C. MAIN LOBBIES, ELEVATORS, STAIRWELLS AND COMMON CORRIDORS
--------------------------------------------------------
Cleaning and janitorial services to be provided in the common areas of
the building shall include:
Exhibit C
Page 1 of 3
1. Trash removal, vacuuming, dusting and damp mopping of
resilient floors and cleaning and sanitizing of water
fountains.
2. High dusting to be rendered as needed.
D. WINDOW CLEANING
---------------
All exterior windows shall be washed on the inside and outside
surfaces at frequency necessary to maintain a first class appearance.
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 the hours of 8:00 a.m. to
6:00 p.m., Monday through Friday, and 8:00 a.m. to 12:00 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 other time period,
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
Exhibit C
Page 2 of 3
preceding the extra usage. Landlord shall charge Tenant for such
extra-hours usage at reasonable rates customary for first-class office
buildings in the Boston Suburban market, and Tenant shall pay
Landlord, as additional rent, upon receipt of billing therefor.
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. In the event that Tenant has special equipment (such as computers and
reproduction equipment) that requires either 3-phase electric power or
any voltage other than 120 amps, or for any other usage in excess of
3.0 xxxxx per square foot, Landlord may at its option require the
installation of separate metering (Tenant being solely responsible for
the costs of any such separate meter and the installation thereof) and
direct billing to Tenant for the electric power required for any such
special equipment.
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 C
Page 3 of 3
EXHIBIT D
---------
FLOOR PLAN
Exhibit D
Page 1 of 1
EXHIBIT F
---------
FORMS OF LIEN WAIVERS
CONTRACTOR'S PARTIAL WAIVER AND SUBORDINATION OF LIEN
STATE OF Date:
------------------------------ -------------------------
COUNTY Application for Payment No.:
--------------------------- ----------
OWNER:
-----------------------------------------------------------
CONTRACTOR:
-----------------------------------------------------------
LENDER / MORTGAGEE: None
-----------------------------------------------------------
1. Original Contract Amount: $
-----------------------------------
2. Approved Change Orders: $
-----------------------------------
3. Adjusted Contract Amount: $
(line 1 plus line 2) -----------------------------------
4. Completed to Date: $
-----------------------------------
5. Less Retainage: $
-----------------------------------
6. Total Payable to Date: $
(line 4 less line 5) -----------------------------------
7. Less Previous Payments: $
-----------------------------------
8. Current Amount Due: $
(line 6 less line 7) -----------------------------------
9. Pending Change Orders: $
-----------------------------------
10. Disputed Claims: $
-----------------------------------
The undersigned who has a contract with _________________________ for furnishing
labor or materials or both labor and materials or rental equipment, appliances
or tools for the erection, alteration, repair or removal of a building or
structure or other improvement of real property known and identified as located
in ____________ (city or town),
Exhibit F
Page 1 of 7
_________County, _________________________ and owned by _________________, upon
receipt of __________ ($__________) in payment of an
invoice/requisition/application for payment dated __________________ does
hereby:
(a) waive any and all liens and right of lien on such real
property for labor or materials, or both labor and materials,
or rental equipment, appliances or tools, performed or
furnished through the following date ________________ (payment
period), except for retainage, unpaid agreed or pending change
orders, and disputed claims as stated above;
(b) subordinate any and all liens and right of lien to secure
payment for such unpaid, agreed or pending change orders and
disputed claims, and such further labor or materials, or both
labor and materials, or rental equipment, appliances or tools,
except for retainage, performed or furnished at any time
through the twenty-fifth day after the end of the above
payment period, to the extent of the amount actually advanced
by the above lender/mortgagee through such twenty-fifth day.
Signed under the penalties of perjury this _________ day of _________,
20__.
WITNESS: CONTRACTOR:
-------------------------------------- ----------------------------------------
Name: Name:
-------------------------------- ---------------------------------
Title: Title:
------------------------------- ---------------------------------
Exhibit F
Page 2 of 7
SUBCONTRACTOR'S LIEN WAIVER
General Contractor:
-----------------------------------------------------------
Subcontractor:
-----------------------------------------------------------
Owner:
-----------------------------------------------------------
Project:
-----------------------------------------------------------
Total Amount Previously Paid: $
----------
Amount Paid This Date: $
----------
Retainage (Including This Payment) Held to Date: $
----------
In consideration of the receipt of the amount of payment set forth above and any
and all past payments received from the Contractor in connection with the
Project, the undersigned acknowledges and agrees that it has been paid all sums
due for all labor, materials and/or equipment furnished by the undersigned to or
in connection with the Project and the undersigned hereby releases, discharges,
relinquishes and waives any and all claims, suits, liens and rights under any
Notice of Identification, Notice of Contract or statement of account with
respect to the Owner, the Project and/or against the Contractor on account of
any labor, materials and/or equipment furnished through the date hereof.
The undersigned individual represents and warrants that he is the duly
authorized representative of the undersigned, empowered and authorized to
execute and deliver this document on behalf of the undersigned and that this
document binds the undersigned to the extent that the payment referred to herein
is received.
The undersigned represents and warrants that it has paid in full each and every
sub-subcontractor, laborer and labor and/or material supplier with whom
undersigned has dealt in connection with the Project and the undersigned agrees
at its sole cost and expense to defend, indemnify and hold harmless the
Contractor against any claims, demands, suits, disputes, damages, costs,
expenses (including attorneys' fees), liens and/or claims of lien made by such
sub-subcontractors, laborers and labor and/or material suppliers arising out of
or in any way related to the Project. This document is to take effect as a
sealed instrument.
Exhibit F
Page 3 of 7
Signed under the penalties of perjury as of this ______
day of ______________, 20__.
SUBCONTRACTOR: Signature and Printed Name of
Individual
Signing this Lien Waiver
---------------------------------------------- -----------------------------
WITNESS:
----------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Dated:
----------------------------------------
Exhibit F
Page 4 of 7
CONTRACTOR'S WAIVER OF CLAIMS AGAINST OWNER AND
ACKNOWLEDGMENT OF FINAL PAYMENT
Commonwealth of
Massachusetts Date:
-------------------------
COUNTY OF Invoice No.:
------------------------------- -------------------------
OWNER:
----------------------------------------------------------------
CONTRACTOR:
----------------------------------------------------------------
PROJECT:
----------------------------------------------------------------
1. Original Contract Amount: $
---------
2. Approved Change Orders: $
---------
3. Adjusted Contract Amount: $
---------
4. Sums Paid on Account of Contract Amount: $
---------
5. Less Final Payment Due: $
---------
The undersigned being duly sworn hereby attests that when the Final Payment
Due as set forth above is paid in full by Owner, such payment shall constitute
payment in full for all labor, materials, equipment and work in place furnished
by the undersigned in connection with the aforesaid contract and that no further
payment is or will be due to the undersigned.
The undersigned hereby attests that it has satisfied all claims against it for
items, including by way of illustration but not by way of limitation, items of:
labor, materials, insurance, taxes, union benefits, equipment, etc. employed in
the prosecution of the work of said contract, and acknowledges that satisfaction
of such claims serves as an inducement for the Owner to release the Final
Payment Due.
The undersigned hereby agrees to indemnify and hold harmless the Owner from and
against all claims arising in connection with its Contract with respect to
claims for the furnishing of labor, materials and equipment by others. Said
indemnification and hold harmless shall include the reimbursement of all actual
attorney's fees and all costs and expenses of every nature, and shall be to the
fullest extent permitted by law.
Exhibit F
Page 5 of 7
The undersigned hereby irrevocably waives and releases any and all liens and
right of lien on such real property and other property of the Owner for labor or
materials, or both labor and materials, or rental equipment, appliances or
tools, performed or furnished by the undersigned, and anyone claiming by,
through, or under the undersigned, in connection with the Project.
The undersigned hereby releases, remises and discharges the Owner, any agent of
the Owner and their respective predecessors, successors, assigns, employees,
officers, shareholders, directors, and principals, whether disclosed or
undisclosed (collectively "Releasees") from and against any and all claims,
losses, damages, actions and causes of action (collectively "Claims") which the
undersigned and anyone claiming by, through or under the undersigned has or may
have against the Releasees, including, without limitation, any claims arising in
connection with the Contract and the work performed thereunder.
Notwithstanding anything to the contrary herein, payment to the undersigned of
the Final Payment Due sum as set forth above, shall not constitute a waiver by
the Owner of any of its rights under the contract including by way of
illustration but not by way of limitation guarantees and/or warranties. Payment
will not be made until a signed waiver is returned to Owner.
The undersigned individual represents and warrants that he/she is the duly
authorized representative of the undersigned, empowered and authorized to
execute and deliver this document on behalf of the undersigned.
Signed under the penalties of perjury as a sealed instrument as of this ___ day
of ________________, _____.
Corporation
----------------------------------
By:
---------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Hereunto duly authorized
Exhibit F
Page 6 of 0
XXXXXXXXXXXX XX XXXXXXXXXXXXX
XXXXXX XX XXXXXX
Xx this ___ day of __________, 20___, before me, the undersigned notary
public, personally appeared _____________________________, proved to me through
satisfactory evidence of identification, to be the person whose name is signed
on the preceding or attached document, and acknowledged to me that he/she signed
it as ______________ for ______________, a corporation/partnership voluntarily
for its stated purpose.
------------------------------------------------
NOTARY PUBLIC
My Commission Expires:
Exhibit F
Page 7 of 7
