LEASE
ARTICLE I
Fundamental Lease Provisions
1.1 Reference Subjects. Each reference in this Lease to any of the following
subjects shall be construed to incorporate the information stated for that
subject in this Section.
DATE: June 7, 1996
PREMISES: An office building of approximately 168,000 rentable square
feet (the "Building"), together with associated parking and related site
improvements, to be constructed on the lot described in Appendix A1 attached,
all of which are the "Premises".
PARK: The land and buildings thereon known as Wakefield Office Park more
particularly shown on Appendix A2 attached.
LANDLORD: WBAM LIMITED PARTNERSHIP
ORIGINAL ADDRESS OF LANDLORD: c/▇ ▇▇▇▇ & Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇'S MANAGING AGENT: Beal & Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TENANT: Boston Technology, Inc., a Delaware corporation.
ORIGINAL ADDRESS OF TENANT: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
ESTIMATED INITIAL TERM COMMENCEMENT DATE: 12 months after commencement of
construction of Landlord's Work.
INITIAL TERM EXPIRATION DATE: The date immediately preceding the 12th
anniversary of the Term Commencement Date (as defined in Section 2.4).
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ANNUAL BASE RENT -- INITIAL TERM:
Lease Year (1)Rent for Non-Storage Space (2)Rent for Storage Space* TOTAL RENT(1+2)
1 $2,798,880.00 $33,600.00 $2,832,480.00
2 $2,798,880.00 $33,600.00 $2,832,480.00
3 $2,881,200.00 $34,440.00 $2,915,640.00
4 $2,881,200.00 $34,440.00 $2,915,640.00
5 $2,963,520.00 $36,120.00 $2,999,640.00
6 $2,963,520.00 $36,120.00 $2,999,640.00
7 $2,963,520.00 $36,120.00 $2,999,640.00
8 $3,128,160.00 $36,960.00 $3,165,120.00
9 $3,128,160.00 $36,960.00 $3,165,120.00
10 $3,128,160.00 $36,960.00 $3,165,120.00
11 $3,292,800.00 $37,800.00 $3,330,600.00
12 $3,292,800.00 $37,800.00 $3,330,600.00
* At Tenant's election, up to 2% of the total rentable square footage within
the Building may be used for storage purposes (the "Storage Space"). Rentable
Square Feet will be as measured by Landlord based on the standards of the
Building Owners and Managers Association. The Rent amounts listed in columns
(1) and (2) above assume Storage Space of 2%; however, if Tenant designates
less than 2% of the Building as Storage Space, the Annual Base Rent shall be
adjusted in accordance with the schedule set forth below by multiplying the
applicable square footage for Non-Storage Space by the amount in column (A),
multiplying the applicable square footage for Storage Space by the amount in
column (B), and then totaling the column (A) and (B) products for each Lease
Year.
Lease Year (A)Rent Per Rentable Square Foot of Non-Storage Space (B)Rent Per Rentable Square Foot of Storage Space
1 $17.00 $10.00
2 $17.00 $10.00
3 $17.50 $10.25
4 $17.50 $10.25
5 $18.00 $10.75
6 $18.00 $10.75
7 $18.00 $10.75
8 $19.00 $11.00
9 $19.00 $11.00
10 $19.00 $11.00
11 $20.00 $11.25
12 $20.00 $11.25
EXTENSION TERMS: Two (2), five (5) year terms.
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ANNUAL BASE RENT -- EXTENSION TERMS:
Ninety percent (90%) of Fair Market Rent as determined pursuant to Section
4.1.3, but not less than the Annual Base Rent (including Annual Base Rent
applicable to the Storage Space) payable during the year immediately preceding
the Term Expiration Date for the First Extension Term and not less than the
Annual Base Rent (including Annual Base Rent applicable to the Storage Space)
payable during the last year of the First Extension Term for the Second
Extension Term.
EXPANSION OPTIONS: As stated in Section 2.7.
ANNUAL FIXED RENT --
EXPANSION SPACE: Except as otherwise provided in Section 2.7, those
rates in effect as noted under Annual Base Rent -- Initial Term at the time
expansion space is taken through the end of the Initial Term; and if the Term
is extended, as provided above under Annual Base Rent -- Extension Terms.
SECURITY DEPOSIT: Not applicable.
PARKING SPACES: 672 spaces consisting of surface and structured parking to be
constructed substantially in accordance with Appendix C.
PERMITTED USES: General office use and all other uses permitted as of right
under the Wakefield zoning bylaw.
RIGHTS TO PURCHASE/
RIGHT OF FIRST OFFER: As stated in Section 2.6
PUBLIC LIABILITY INSURANCE: $1,000,000 with umbrella coverage of
$10,000,000
BROKER: Leggat, ▇▇▇▇▇▇/▇▇▇▇▇ & ▇▇▇▇▇
APPENDICES: Appendix A1 - Description of Premises
Appendix A2 - Park Plan
Appendix A3 - Description of Purchase Lot
Appendix B - Cleaning Specifications
Appendix C - Landlord's Work
ARTICLE II
Premises and Term
2.1 Premises. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises identified in Section 1.1, subject to and with the
benefit of the terms, covenants and conditions of this Lease, and of rights,
agreements, easements and restrictions of record applicable to the Premises,
all of which Tenant shall perform and observe. Subject to the rules and
regulations established by Landlord, Tenant shall have the appurtenant rights
in common with others to use (a) the exterior walkways, sidewalks and driveways
necessary for access to the Park and to the Premises; and (b) the lawns and
landscaped areas in the Park suitable for recreational activities.
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Landlord excepts and reserves the right from time to time (a) to install, use,
maintain, repair, replace and relocate within the Premises, pipes, meters and
other equipment, machinery, apparatus and appurtenant fixtures; and (b) to
alter or relocate any entranceways, alter the shape and size of the lot
constituting the Premises, or grant and relocate easements affecting the
Premises (with Tenant's reasonable consultation), or other facilities
(including without limitation all access driveways, walkways and parking areas)
serving the Premises. Tenant shall be entitled to receive advance notice of
▇▇▇▇▇▇▇▇'s exercise of the foregoing rights and work undertaken pursuant to
the foregoing rights shall be performed at reasonable times and in a manner so
as not to interfere unreasonably with ▇▇▇▇▇▇'s conduct of its business in the
Premises. Tenant shall have the right to object to the installation or
relocation of utilities and improvements in the Premises pursuant to the
foregoing rights if such utilities and improvements, once installed, will
materially and adversely affect Tenant's conduct of its business in the
Premises.
▇▇▇▇▇▇▇▇'s rights to enter the Premises during the term, whenever set forth in
this Lease (including access by regular cleaning personnel), shall, except in
emergencies, be subject to Tenant's reasonable security procedures of which
Landlord has been given advance written notice. Such security procedures may,
without limitation, require that Landlord's employees, agents or contractors
enter certain areas of the Premises only when accompanied by a representative
of Tenant.
2.2 Acceptance of Premises. Tenant acknowledges that it has inspected the
Premises and accepts the same subject to Landlord's obligation to perform
Landlord's Work (as defined in Section 3.1 and Appendix C), it being expressly
agreed that Landlord shall have no obligation, liability or risk whatsoever
with regard to the Premises or their condition, except as expressly set forth
herein. Tenant further acknowledges that neither Landlord nor any agent or
employee of Landlord has made any representations or warranties, express or
implied, concerning the Premises, their condition or this Lease.
2.3 Delay in Delivering Possession. . Landlord shall endeavor in good faith
to deliver the Premises by the Estimated Initial Term Commencement Date,
subject always to Section 8.4. If Landlord shall be unable to deliver
possession of the Premises on the Estimated Initial Term Commencement Date
stated in Section 1.1, then Landlord shall not be subject to any liability
for the failure or delay in giving possession; but Tenant's obligation to pay
Annual Base Rent and additional rent shall not commence until the Premises are
delivered, unless Landlord's inability to deliver the Premises resulted from
the action or inaction of Tenant, in which event, Tenant's obligation to pay
Annual Base Rent and additional rent shall commence on the Estimated Initial
Term Commencement Date. No such failure of Landlord to give possession shall
in any respect affect the validity of this Lease (including the date on which
the Term ends) or any of the obligations of Tenant except as provided in this
Section 2.3.
2.4 Term. This Lease is for an Initial Term which shall begin at 12:01 a.m.
on the earlier to occur of the following (a) or (b), which date shall be the
"Initial Term Commencement Date," and shall end at 12:00 midnight on the
Initial Term Expiration Date set forth in Section 1.1.
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(a) The date Tenant enters into possession of all or any portion of the
Premises for the conduct of its business. (The event described in the prior
sentence shall not be deemed to occur by virtue of the installation or testing
of computers or other equipment or the installation of other property of Tenant
in the Premises.)
(b) The date the Premises are delivered as defined in Section 3.1.1.
2.5 Option to Extend. The Lease may be extended for the Extension Terms set
forth in Section 1.1 by unconditional notice given at least 12 (but not more
than 18) months prior to the end of the then expiring Term (determined without
regard to the Extension Term being exercised), time being of the essence to
such exercise, so long as at the time of such notice and at the beginning of
the relevant Extension Term Tenant is not in material default.
2.6 Rights to Purchase/Right of First Offer.
2.6.1. Right of First Offer for the Purchase Lot. With respect to the vacant
lot adjacent to the Premises more particularly shown on Appendix A3 attached
(the "Purchase Lot"), for a period beginning with the execution of this Lease
and ending twenty-four (24) months after the Term Commencement Date (the
"Initial Purchase Lot First Offer Period"), Tenant shall have a right of first
offer (the "Purchase Lot First Offer Right") on the following terms and
conditions. Before marketing the Purchase Lot to the general public for either
sale or development, Landlord shall notify Tenant in writing of the price and
other material terms on which Landlord intends to market the property. Tenant
shall have sixty days after receipt of such notice to accept Landlord's terms
(which acceptance shall be accompanied by any deposit required), and forty-five
days thereafter to conclude a binding agreement with Landlord. If ▇▇▇▇▇▇
fails timely to accept ▇▇▇▇▇▇▇▇'s terms, or accepts but the parties do not so
conclude a binding agreement, then Landlord may conclude a transaction with a
third party thereafter upon terms which, taken in the aggregate and after
allowance for respective creditworthiness of Tenant and such third party, are
no more favorable than the terms offered to ▇▇▇▇▇▇. If Landlord so consummates
such a transaction to a third party, then the Purchase Lot First Offer Right
and Purchase Lot First Offer Period shall lapse and be of no further force and
effect. If Landlord desires to enter into a transaction to a third party upon
terms which, taken in the aggregate and after allowance for respective
creditworthiness of Tenant and such third party, are more favorable than the
terms offered to Tenant, then Landlord shall be required to repeat the process
set forth above prior to consummating such a transaction, but Tenant shall have
thirty days to accept such terms and fifteen days to enter into a binding
agreement. By written notice to Landlord given no less than six months before
the expiration of the Initial Purchase Lot First Offer Period, Tenant may elect
to extend its Purchase Lot First Offer Right for an additional two (2) years
at a cost of $100,000 per year payable from Tenant to Landlord in equal
monthly installments as additional rent.
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2.6.1. Right of First Offer for a Purchase Lot Building Lease. Tenant shall
have a right of first offer to lease any future building which the Landlord may
build upon the Purchase Lot (the "Future Building Lease First Offer Right") on
the following terms and conditions. Before entering into a lease with a third
party for a building to be built upon the Purchase Lot, Landlord shall notify
Tenant in writing of the rent and other material terms on which Landlord
intends to lease such building. Tenant shall have twenty days after receipt of
such notice to accept ▇▇▇▇▇▇▇▇'s terms, and twenty days thereafter to conclude
a binding lease with Landlord. If ▇▇▇▇▇▇ fails timely to accept ▇▇▇▇▇▇▇▇'s
terms, or accepts but the parties do not so conclude a binding lease, then
Landlord may conclude a lease with a third party thereafter upon terms which,
taken in the aggregate and after allowance for respective creditworthiness of
Tenant and such third party, are no more favorable than the terms offered to
Tenant. If Landlord so consummates such a lease to a third party, then the
Future Building Lease First Offer Right shall lapse and be of no further force
and effect. If Landlord desires to enter into a lease to a third party upon
terms which, taken in the aggregate and after allowance for respective
creditworthiness of Tenant and such third party, are more favorable than the
terms offered to Tenant, then Landlord shall be required to repeat the process
set forth above prior to consummating such a transaction, but Tenant shall have
ten days to accept such terms and ten days to enter into a binding agreement.
2.6.2. Right to Purchase the Purchase Lot. Tenant shall have the right to
purchase the Purchase Lot by notice to Landlord at any time during the Initial
Purchase Lot First Offer Period and any extension thereof as follows: The
purchase price shall be $5,000,000 adjusted upward by the CPI Escalation
(defined below) from the date upon which this Lease is executed. "CPI" shall
mean the United States Bureau of Labor Statistics ("Bureau") Consumer Price
Index for Urban Wage Earners and Clerical Workers, Boston Metropolitan Area,
All Items (1982-84 = 100). If CPI is converted to a different standard
reference base or otherwise revised, a determination of CPI Escalation shall
be made with the use of such conversion factor, formula or table as may be
published by the Bureau or, if the Bureau shall not publish the same, then with
the use of such conversion factor, formula or table as may be published by any
nationally recognized publisher of statistical information, reasonably selected
by Landlord. If CPI shall cease to be published, then there shall be
substituted for CPI any substitute or successor index published by the Bureau
or other governmental agency, or if no such index is published, then such other
index published by any nationally recognized publisher of statistical
information as Landlord shall reasonably select. CPI means the CPI most
recently published prior to the date in question. "CPI Escalation" shall mean
the increase, if any, in CPI from the date or period from which CPI is measured
to the date or period to which CPI is to be measured, stated as a percentage.
(The foregoing may be illustrated by the following example: Assume CPI for
the initial date is 100; assume also that CPI for the date to which CPI is to
be measured is 110. CPI Escalation for such period would be 10%.)
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Closing on the purchase ("Closing") shall occur on the date specified in
Tenant's notice, but in no event later than 30 days after Tenant gives its
notice of exercise of its right to purchase the Purchase Lot. At the Closing
Tenant shall pay to Landlord the balance (taking into account the deposit, if
any) of the Purchase Price, in current U.S. exchange and by certified or bank
check drawn on a Boston clearinghouse bank (or by federal funds wire transfer
if Landlord so directs). At the Closing, Landlord shall deliver a quitclaim
deed conveying Landlord's interest in the Purchase Lot, subject to existing
laws, real estate taxes not yet due and payable, eminent domain takings, damage
by casualty, matters which would be shown on a current survey, parties in
possession and the encumbrance of this Lease (and any encumbrances arising
hereunder), and any easements, rights or restrictions of record existing on the
Commencement Date or permitted by Section 2.1. Should Landlord be unable to
deliver such title at the Closing, then the Closing shall be extended for up
to 60 days to permit Landlord to deliver such title (Landlord being under no
obligation to expend any funds in excess of an amount equal to the deposit to
deliver such title), and if at such extended Closing Landlord is still unable
to perform, then at Tenant's election, either ▇▇▇▇▇▇'s obligation to purchase
will cease (in which case the deposit will be refunded), or Tenant will accept
such title as Landlord can then convey and shall pay the balance of the
Purchase Price without deduction. Should Tenant fail to perform at the
Closing, time being of the essence, then Landlord may retain the deposit as
liquidated damages, and at Landlord's election at any time thereafter by
written notice to Tenant, may also terminate this Lease effective upon the date
set forth in a notice thereof from Landlord to Tenant. The parties intend that
▇▇▇▇▇▇'s right to purchase and right of first offer are personal to Tenant
alone, shall not be assignable except to an assignee of Tenant's leasehold
interest in a permitted transfer under Section 5.1.11, and that any transfer
except to a transferee of a permitted transfer under Section 5.1.11 shall
automatically render this purchase option immediately null and void.
2.6.3. Right of First Offer for the Premises. Tenant shall have a right of
first offer to purchase the Premises (the "Premises First Offer Right") on the
following terms and conditions. Before marketing the Premises to the general
public for either sale or development, Landlord shall notify Tenant in writing
of the price and other material terms on which Landlord intends to market the
property. Tenant shall have sixty days after receipt of such notice to accept
Landlord's terms (which acceptance shall be accompanied by any deposit
required), and forty-five days thereafter to conclude a binding agreement with
Landlord. If ▇▇▇▇▇▇ fails timely to accept ▇▇▇▇▇▇▇▇'s terms, or accepts but
the parties do not so conclude a binding agreement, then Landlord may conclude
a transaction with a third party thereafter upon terms which, taken in the
aggregate and after allowance for respective creditworthiness of Tenant and
such third party, are no more favorable than the terms offered to ▇▇▇▇▇▇. If
Landlord so consummates such a transaction to a third party, then the Premises
First Offer Right shall lapse and be of no further force and effect. If
Landlord desires to enter into a transaction to a third party upon terms which,
taken in the aggregate and after allowance for respective creditworthiness of
Tenant and such third party, are more favorable than the terms offered to
Tenant, then Landlord shall be required to repeat the process set forth above
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prior to consummating such a transaction, but Tenant shall have thirty days to
accept such terms and fifteen days to enter into a binding agreement. The
parties intend that ▇▇▇▇▇▇'s Premises First Offer Right is personal to
Tenant alone, shall not be assignable except to an assignee of Tenant's
leasehold interest in a permitted transfer under Section 5.1.11, and that any
transfer except to a transferee of a permitted transfer under Section 5.1.11
shall automatically render Tenant's Premises First Offer Right immediately
null and void.
2.7 Landlord's Termination Right. If, despite its reasonable efforts,
▇▇▇▇▇▇▇▇ fails to receive either (i) all local, state, and other approvals
required for construction of the Premises; or (ii) a binding commitment from a
lender for financing of the Premises; then Landlord shall have the right to
terminate this Lease by written notice to Tenant. In the event Landlord so
terminates the Lease, all rights and obligations of the parties under the Lease
shall terminate upon the date of such termination without further recourse by
the parties.
2.8 Tenant's Termination Right. Subject to delays beyond its reasonable
control as provided in Section 8.4, Landlord shall endeavor to meet the
schedule for the events shown below (the "Benchmark Schedule"):
Event Approval Date
1. Town of Wakefield Approvals 8 1/2 months after execution of the Lease
2. Massachusetts Environmental
Protection Agency (MEPA) 11 months after execution of the Lease
3. Massachusetts Highway Department 12 1/2 months after execution of the Lease
4. Construction Commencement 13 months after execution of the Lease
If any event listed on the Benchmark Schedule does not occur by its scheduled
time (as the same is extended by Section 8.4), then Landlord shall give written
notice to Tenant of such failure. If Landlord does not cause the event in
question to occur within fifteen (15) business days from the date of notice,
then Tenant shall thereafter have the right at any time until such event occurs
to terminate the Lease by written notice to Landlord. In the event Tenant so
terminates the Lease, all rights and obligations of the parties under the
Lease shall terminate upon the date of such termination without further
recourse by the parties.
ARTICLE III
Landlord Work and Tenant Work
3.1 Landlord Work. Except as provided in Section 5.2 and in this Section 3.1,
Landlord shall not be required to perform any work in connection with ▇▇▇▇▇▇'s
occupancy of the Premises.
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3.1.1 Construction. At its sole cost, Landlord shall diligently and
expeditiously cause the Premises to be constructed substantially as described
in the Improvement Plans defined in Appendix C, including the furnishing of all
signage therein provided for ("Landlord's Work"). Landlord's Work shall
comply with all building codes, laws and regulations applicable to such
construction. The Premises shall be deemed delivered thirty days after notice
from Landlord to Tenant of the estimated date of substantial completion so long
as substantial completion has occurred on or before such date, and further
provided that if Landlord has received a certificate of occupancy for less than
all of the Premises, then, notwithstanding anything to the contrary contained
herein, for such period until a certificate of occupancy has been received for
the remainder of the Premises, Annual Base Rent -- Initial Term and any
additional rent shall be proportionally abated, based on the square footage of
the Premises for which a certificate of occupancy has not been received.
"Substantial completion" shall mean the date Landlord has received a temporary
or partial certificate of occupancy for the Premises and Landlord's Work is
sufficiently complete that the Premises may be occupied for the intended uses,
subject only to punch-list items that do not materially interfere with ▇▇▇▇▇▇'s
occupancy. Punch-list items shall include finish items such as wall coverings,
window treatments and the like which Landlord shall be unable, having exercised
reasonable efforts, to obtain from suppliers without delay and for which Tenant
elects not to accept available substitutes. Punch-list items shall be
completed with reasonable diligence after substantial completion and as
materials become available. ▇▇▇▇▇▇'s taking possession of the Premises shall be
conclusive evidence that the Premises was substantially completed when ▇▇▇▇▇▇
took possession, subject to any agreed punch-list and to latent defects in
Landlord's Work.
3.2 Tenant Work.
3.2.1 General. "Tenant Work" shall mean all work, including improvements,
additions and alterations, performed by Tenant in or to the Premises other than
the work set forth in Appendix C. Without limiting the generality of the
foregoing, Tenant Work shall specifically include all attached carpeting, all
signs visible from the exterior of the Premises, and any change in the exterior
appearance of the windows in the Premises (including shades, curtains and the
like). All Tenant Work shall be subject to Landlord's prior written approval,
which shall not be unreasonably withheld or delayed in the case of non-
structural alterations which do not reduce the value of the Premises, and shall
be arranged and paid for by ▇▇▇▇▇▇ as provided herein. All Building fixtures
and equipment shall be the property of Landlord, except that if ▇▇▇▇▇▇'s Work
involves alterations that are special purpose (as determined by Landlord in
its reasonable discretion at the time of Landlord's approval), then at
Landlord's request, the same will be removed at ▇▇▇▇▇▇'s sole expense at the
end of the Term. Tenant shall neither propose nor effect any Tenant Work (i)
which might in any manner adversely affect any structural component of the
Building (including, without limitation, exterior walls, exterior windows, core
walls, roofs, or floor slabs), (ii) which might in any respect be incompatible
with the electrical or mechanical components or systems of the Building, (iii)
which might affect in any respect the exterior of the Building, (iv) which
might diminish the value of the Premises for remodeling to any general purpose
office use, (v) or which might require any unusual expense to re-adapt the
Premises for any general purpose office use.
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3.2.1.1 Identity. Tenant shall be permitted exterior signage on the Building
and on the ground in the Park as allowed by applicable bylaws and codes. Tenant
shall also have the right to install appropriate signage on the walls of the
main lobby, elevator lobbies and entrance doors of the Building. All signage
shall be subject to Landlord's approval, which approval shall not be
unreasonably withheld or delayed.
3.2.2 Construction Documents. No Tenant Work shall be effected except in
accordance with complete, consistent, final construction drawings and
specifications ("Construction Documents") approved in advance by Landlord in
writing, which approval shall not be unreasonably withheld or delayed. The
Construction Documents shall be prepared by an architect ("▇▇▇▇▇▇'s
Architect") experienced in the construction of tenant space improvements in
buildings in the greater Boston area and approved by Landlord in writing.
Tenant shall be solely responsible for the liabilities of and expenses of
all architectural and engineering services relating to Tenant Work and for the
adequacy, accuracy, and completeness of the Construction Documents approved by
Landlord, even if ▇▇▇▇▇▇'s Architect has been otherwise engaged by Landlord in
connection with the Building. The Construction Documents shall set forth in
detail the requirements for construction of the Tenant Work (including all
architectural, mechanical, electrical and structural drawings and detailed
specifications), shall be fully coordinated with one another and with field
conditions as they exist in the Premises and elsewhere in the Building, and
shall show all work necessary to complete the Tenant Work including all
cutting, fitting, and patching and all connections to the mechanical and
electrical systems and components of the Building. Submission of the
Construction Documents to Landlord for approval shall be deemed a warranty by
Tenant and Tenant's Architect, jointly and severally, that all Tenant Work
described in the Construction Documents (i) complies with all applicable laws,
regulations, building codes and engineering or architectural design standards,
(ii) does not adversely affect any structural component of the Building
(including, without limitation, exterior walls, exterior windows, core walls,
roofs or floor slabs), (iii) is in all respects compatible with the electrical
and mechanical components and systems of the building, (iv) does not affect
the exterior of the Building) (v) conforms to floor loading limits, (vi) and
with respect to all materials, equipment and special designs, processes, or
products, does not, to the knowledge of Tenant, infringe on any patent or other
proprietary rights of others. ▇▇▇▇▇▇▇▇'s approval of Construction Documents
shall only signify Landlord's consent to the Tenant Work shown thereon and
shall not result in any responsibility of Landlord concerning compliance of
the Tenant Work with laws, regulations, or codes, coordination of any aspect of
the Tenant Work with any other aspect of the Tenant Work or any component or
system of the Building, or the feasibility of constructing the Tenant Work
without damage or harm to the Building, all of which shall be the sole
responsibility of Tenant, unless caused by the negligence of Landlord.
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3.2.3 Performance of Tenant Work. The identity of any person or entity
(including any employee or agent of Tenant) performing any Tenant Work ("Tenant
Contractor") shall be subject to Landlord's prior written approval, which
approval shall not be unreasonably withheld or delayed. Once any Tenant
Contractor has been approved, then the same may thereafter be used by Tenant
until Landlord notifies Tenant that such Tenant Contractor is no longer
approved. Tenant shall procure all necessary governmental permits, licenses
and approvals before undertaking any Tenant Work. Tenant shall perform all
Tenant Work at Tenant's risk in compliance with all applicable laws, codes and
regulations and in a good and workmanlike manner employing new materials of
good quality and producing a result at least equal in quality to the other
parts of the Premises. When any Tenant Work is in progress, Tenant shall
cause to be maintained insurance as described in the Tenant Work Insurance
Schedule attached hereto as Appendix D and such other insurance as may be
required by Landlord covering any additional hazards due to such Work. It
shall be a condition of Landlord's approval of any Tenant Work that certificates
of such insurance , issued by responsible insurance companies qualified to do
business in Massachusetts and reasonably approved by Landlord, shall have been
deposited with Landlord, that Tenant has provided ▇▇▇▇▇▇'s certification of
the insurable value of the work in question for casualty insurance purposes,
and that all of the other conditions of the Lease have been satisfied. Tenant
shall reimburse Landlord's reasonable costs of reviewing proposed Tenant Work
and inspecting installation of the same. At all times while performing Tenant
Work, Tenant shall require any Tenant Contractor to comply with all applicable
laws, regulations, permits and policies relating to such work of the City. In
performing Tenant Work, each Tenant Contractor shall comply with Landlord's
reasonable requirements relating to the time and methods for such work, use
of delivery elevators and other Building facilities; and each Tenant Contractor
shall not unreasonably interfere or disrupt any other tenant or other person
using the Building. Each Tenant Contractor shall in all events work on the
Premises without causing labor disharmony, coordination difficulties, or delay
or impair any guaranties, warranties or obligations of any contractors of
Landlord. If any Tenant Contractor uses any Building services or facilities,
such Contractor, jointly and severally with Tenant, shall agree to reimburse
Landlord for the cost thereof based on Landlord's schedule of charges
established from time to time (and if no such charges have been established,
then based on ▇▇▇▇▇▇▇▇'s reasonable charge established at the time). Each
Tenant Contractor shall, by entry into the Building, be deemed to have agreed
to indemnify and hold the Indemnitees harmless from any claim, loss or expense
arising in whole or in part out of any act or neglect committed by such
person while in the Building, to the same extent as Tenant has so agreed in
this Lease, the indemnities of Tenant and Tenant Contractor to be joint and
several.
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3.2.4 Payment for Tenant Work. Tenant shall pay the entire cost of all Tenant
Work so that the Premises shall always be free of liens for labor or
materials. If any mechanic's lien (which term shall include all similar liens
relating to the furnishing of labor and materials) is filed against the Premises
or the Building or any part thereof which is claimed to be attributable to
Tenant, its agents, employees or contractors, Tenant shall promptly discharge
the same by payment or filing any necessary bond within 10 days after Tenant
has notice (from any source) of such mechanic's lien. Tenant shall indemnify
and hold harmless Landlord from and against all loss, cost, damage (including
consequential damages) and expense (including reasonable attorneys fees) arising
out of any mechanics lien filed against the Premises or the Building or any
part thereof which is claimed to be attributable to Tenant, its agents,
employees or contractors. Landlord may, as a condition of its approval of any
Tenant Work with a cost in excess of $25,000, require Tenant to deposit with
Landlord a bond, letter of credit or other similar security in the amount of
Landlord's reasonable estimate of the value of such Work securing Tenant's
obligations to make payments for such Work.
ARTICLE IV
Rent
4.1.1 Annual Base Rent. Annual Base Rent during the Term shall be the amount
of Annual Base Rent set forth in Section 1.1 for the Lease Year in question.
4.1.2 Alternative Annual Base Rent. Notwithstanding the provisions of
Section 4.1.1, by written notice to Landlord on or before 120 days from the
date this Lease is executed, Tenant may elect to defer its occupation of a
block of 25,000 rentable square feet of office space in the Building (the
"Banked Space") for one year (▇▇▇▇▇▇'s "Banked Space Right"). Tenant's
exercise of its Banked Space Right shall not affect its obligation to pay rent
for the entirety of the Premises, including the Banked Space; however, if Tenant
exercises its Banked Space Right, then the Annual Base Rent set forth in
Section 1.1 shall be recalculated in accordance with the following rent
schedule by multiplying the applicable square footage for Non-Storage Space
(including the Banked Space) by the amount in column (C), multiplying the
applicable square footage for Storage Space by the amount in column (D), and
then totaling the column (C) and (D) products for each Lease Year.
Lease Year(C)Rent Per Rentable Square Foot (D)Rent Per Rentable Square Foot
of Non-Storage Space of Storage Space(of up to 2%)
1 $14.50 $10.00
2 $17.50 $10.00
3 $17.50 $10.25
4 $18.00 $10.25
5 $18.50 $10.75
6 $18.50 $10.75
7 $18.50 $10.75
8 $19.50 $11.00
9 $19.50 $11.00
10 $19.50 $11.00
11 $20.50 $11.25
12 $20.50 $11.25
Tenant's exercise of its Banked Space Right shall not in any way affect its
obligation to pay the full amount of additional rent set forth in
Sections 4.3.1 and 4.4.1.
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4.1.3. Annual Base Rent -- Extension Term. If the Term is extended for the
Extension Term, then Annual Base Rent will be as set forth in Section 1.1.
Fair Market Rent for the Premises during the Extension Term, for the purpose of
calculating Annual Base Rent -- Extension Term under Section 1.1, shall be
ascertained as follows: Not later than nine months prior to the end of the
expiring term Landlord shall give written notice to Tenant setting forth
Landlord's determination of fair market rent for each of the Lease years of the
Extension Term in question (which may be different from year to year). Within
one (1) month following ▇▇▇▇▇▇▇▇'s notice Tenant shall either propose its
determination of fair market rent by giving notice thereof to Landlord or shall
accept Landlord's determination. Failure on the part of Tenant to give such
notice of its determination shall bind Tenant to Landlord's determination.
If Tenant proposes its determination of fair market rent, then Landlord and
Tenant shall meet for the purpose of reaching agreement. If the parties have
been unable to reach agreement by the beginning of the sixth month next
preceding the end of the expiring Term, then Landlord shall give notice to
Tenant of an appraiser whom Landlord designates to ascertain such rent. If
within 10 days of such notice Tenant objects to such person then Tenant shall
give notice to Landlord and designate another appraiser (and failure so to
notify Landlord shall bind Tenant to the appraiser designated by Landlord).
Both such appraisers shall meet and within 10 days after the designation by
Tenant of the second appraiser shall designate a third appraiser. Each
appraiser shall within 30 days of the designation of the third appraiser
ascertain fair market rent. The fair market rent for purposes of determining
Annual Base Rent during the relevant Extension Term shall equal the average of
the determinations of the three appraisers, provided that if the determination
by any appraiser is not within fifteen percent (15%) of the average of the
three appraisers, then such determination shall be disregarded. (If the two
appraisers fail to designate the third appraiser within such time, then either
Landlord or Tenant may request the then President of the Greater Boston Real
Estate Board, or successor organization to designate the third appraiser; and
if such person fails to designate a third appraiser within 30 days, then either
Landlord or Tenant may request the American Arbitration Association, Boston
Office to designate the third appraiser.) Any appraiser designated shall have
had at least 10 years experience in the leasing, ownership or management of
1,000,000 or more square feet of floor area of office buildings similar in
character to the Premises and shall be a member of A.S.R.E.C. (or successor
professional organization) and duly qualify as an expert witness over objection
to give opinion testimony addressed to the issue in a court of competent
jurisdiction.
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Fair market rent shall be the Annual Base Rent which a willing tenant would pay
to lease the Premises for each year of the Extension Term in question under
terms and conditions substantially the same as those of this Lease, with the
Premises considered free and clear of this Lease and as though then available
for single or multiple occupancies for the Permitted Uses (or any higher and
better use then being made by Tenant, the mix of any multiple occupancies being
what is then customary in light of good real estate practice) in the condition
in which Tenant is required to maintain the Premises (or if in Landlord's
reasonable judgment Tenant Work has been installed which adversely affects
rental value and Landlord has the right to have Tenant remove such Work at the
termination of the Term, then as though such Tenant Work were removed), based on
rentals for comparable space over a comparable period with appropriate
adjustments made to such rentals as necessary to establish comparability, and
with rental historically paid under this Lease disregarded.
If the parties do not agree in writing on such rent, then the written opinion
of fair market rent of the appraiser so chosen shall conclusively establish such
rent ("Fair Market Rent"). Both parties shall have the opportunity to present
evidence in accordance with reasonable procedures prescribed by the appraiser,
and the fee of the appraiser giving his or her written opinion shall be paid
equally by the parties. If Landlord should delay in giving the notice which
begins the valuation procedures of this paragraph, or if the process should
otherwise be delayed for any reason, then such procedures shall nevertheless
remain in effect and be applicable when and as invoked with respect to Annual
Base Rent payable during the Extension Term; but until such procedures are
completed Tenant shall pay on account of Annual Base Rent at the rate
established for Annual Base Rent for the last twelve months of the expiring
term (and upon Fair Market Rent being established shall pay the same within
10 days retroactively to the beginning of the Extension Term in question).
4.2.1 Method of Payment. Tenant covenants and agrees to pay the Annual Base
Rent to Landlord in advance in equal monthly installments on the first day of
each calendar month during the Term beginning on the Commencement Date. "Lease
year" shall mean the twelve month period following the Commencement Date
(unless the Commencement Date is other than the first day of a month, in which
case "Lease year" shall mean the twelve month period following the initial
partial month). Tenant shall make ratable payment of Annual Base Rent for any
portion of a Lease year (or month) in which the same accrues, all payments of
Annual Base Rent and additional rent and other sums due hereunder to be paid in
current U.S. exchange at the Original Address of Landlord or such other place
as Landlord may by notice in writing to Tenant from time to time direct,
without demand and without set-off or deduction.
Without limiting the generality of the foregoing, ▇▇▇▇▇▇'s obligation so to pay
shall not be discharged or otherwise affected by reason of the application of
any law or regulation now or hereafter applicable to the Premises, or any other
restriction of or interference with the use thereof by Tenant, or (except as
and to the extent expressly provided herein) any damage to or destruction of
the Premises by casualty or taking, or on account of any failure by Landlord to
perform hereunder or otherwise, or due to any other occurrence; nor (except as
expressly provided herein) shall Tenant ever be entitled and Tenant hereby
waives all rights now or hereafter conferred by statute or otherwise to quit,
terminate or surrender this Lease or the Premises or any part thereof, or to
assert any defense in the nature of constructive eviction to any action seeking
to recover rent. Tenant shall, however, have and maintain, subject to the
provisions hereof, the right to seek and obtain from time to time judgments
for direct money damages occasioned by ▇▇▇▇▇▇▇▇'s breach of the covenants of
this Lease, including, without limitation, any breach by Landlord which could
have given rise to a claim of constructive eviction but for the provisions of
the foregoing sentence.
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4.2.2 Net Return to Landlord. It is intended that Annual Base Rent, additional
rent and all other rent payable hereunder shall be a net return to Landlord
throughout the Term, free of expense, charge, offset, diminution or other
deduction whatsoever (excepting Landlord's financing payments and federal and
state income taxes), and all provisions hereof shall be liberally construed in
terms of such intent.
4.3.1 Additional Rent -- Landlord's Taxes. Tenant covenants and agrees to pay
to Landlord, as additional rent, all of Landlord's Taxes (hereafter defined)
for each fiscal tax period, or ratable portion thereof, included in the Lease
Term in monthly installments on the first day of each month in amounts
reasonably estimated from time to time by Landlord to provide for the fully
payment of Tenant's obligation with respect to Landlord's Taxes on the date
such taxes are due. Tenant shall furnish to Landlord all original bills
relating to any Landlord's Taxes within five days after ▇▇▇▇▇▇'s receipt
thereof. Without implying that other covenants do not survive, the covenants
of this Section shall survive the Term.
4.3.2 Landlord's Taxes - Definition. "Landlord's Taxes" shall mean all taxes,
assessments, betterments, excises, user fees and all other governmental
charges and fees of any kind or nature, or impositions or agreed payments in
lieu thereof or voluntary payments made in connection with the provision of
governmental services or improvements of benefit to the Premises (including
any so-called linkage, impact or voluntary betterment payments), and all
penalties and interest thereon (if due to Tenant's failure to make timely
payments on account of ▇▇▇▇▇▇▇▇'s taxes), assessed or imposed against the
Premises or the property of which the Premises are a part (including without
limitation any personal property taxes levied on such property or on fixtures
or equipment used in connection therewith), or upon Landlord by virtue of its
ownership thereof ("Landlord's Taxes"), other than a federal or state income
tax of general application. If during the Term the present system of ad
valorem taxation of property shall be changed so that, in lieu of or in
addition to the whole or any part of such ad valorem tax there shall be
assessed, levied or imposed on such property or Premises or on Landlord any
kind or nature of federal, state, county, municipal or other governmental
capital levy, sales, franchise, excise or similar tax, assessment, levy, charge
or fee (as distinct from the federal and state income tax in effect on the
Commencement Date) measured by or based in whole or in part upon Building
valuation, mortgage valuation, rents or any other incidents, benefits or
measures of real property or real property operations, then any and all of
such taxes, assessments, levies, charges and fees shall be included within the
term Landlord's Taxes.
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▇▇▇▇▇▇▇▇'s Taxes include reasonable expenses, including fees of attorneys,
appraisers and other consultants, incurred in connection with any efforts to
obtain abatements or reductions or to assure maintenance of Landlord's Taxes
for any tax fiscal year wholly or partially included in the Term, whether
or not successful and whether or not such efforts involve filing of actual
abatement applications or initiation of formal proceedings; provided that the
expenses related to an abatement application shall not be included in Landlord's
Taxes if such application is unsuccessful unless ▇▇▇▇▇▇ consented to the filing
of the abatement application. Tenant shall have the right, subject to
Landlord's reasonable approval, to pursue a tax abatement and Landlord shall
cooperate in such endeavor, provided that Tenant pays Landlord's out-of-pocket
expenses in connection with such cooperation.
4.4.1 Additional Rent - Operating Expenses. Tenant covenants and agrees to pay
to Landlord, as additional rent, all of the Landlord's Operating Expenses
(hereafter defined) for the Premises for each of Landlord's fiscal years, or
ratable portion, included in the Term. Such additional rent shall be payable
in monthly installments on the first day of each month in advance, based on
amounts reasonably estimated from time to time by Landlord, and with a final
payment adjustment between the parties within 14 days after Landlord provides
Tenant a statement of Landlord's Operating Expenses for Landlord's most recent
fiscal year.
4.4.2 Landlord's Operating Expenses - Definition. "Landlord's Operating
Expenses" means (a) all costs paid or incurred in servicing, operating,
managing, maintaining, and repairing the Premises and the land, facilities and
appurtenances thereto; and (b) Tenant's ratable share of Landlord's costs paid
or incurred in servicing, operating, managing, maintaining, and repairing the
areas in the Park available for use by Tenant in common with others (ratable
meaning the ratio of Rentable Square Feet of the Building to the total rentable
square feet of all buildings from time to time existing in the Park). ▇▇▇▇▇▇▇▇'s
Operating Expenses include without limitation the costs of the following:
(i) supplies, materials and total wage and labor costs and all costs and
expenses of independent contractors paid or incurred on account of all persons
engaged in the operation, maintenance, security, cleaning and repair of the
Premises and the land, facilities and appurtenances thereto, including social
security, unemployment compensation, pension, vacation, sick pay and other so-
called "fringe benefits"; (ii) services furnished generally to tenants of the
Park by Landlord; (iii) utilities consumed and expenses incurred in the
operation of the Premises and the land, facilities and appurtenances thereto;
(iv) casualty, liability, workmen's compensation and all other insurance
expenses (including the amount of any commercially reasonable deductible in
the event of an insured loss), all insurance to be in such amounts and
insuring against such risks as Landlord or ▇▇▇▇▇▇▇▇'s mortgagee may
reasonably require from time to time; (v) snow removal, planting, landscaping,
grounds and parking operation, maintenance and repair expenses; (vi) management
fees of 2.5%, and fees for required licenses or permits; and (vii) rental or
reasonable depreciation of equipment used in the operation of the Building and
the land, facilities and appurtenances thereto, and personal property taxes
assessed upon such equipment. In addition, if Landlord from time to time
repairs or replaces any existing improvements or equipment or installs any new
improvements or equipment to the Building that Landlord reasonably anticipates
will result in a savings in Landlord's Operating Expenses or are required by
laws coming into being after the date of this Lease (including without
limitation energy conservation improvements or other improvements), then the
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cost of such items amortized over their reasonable life, together with an
actual or imputed interest rate (at the level then being charged by
institutional first mortgagees for new permanent first mortgage loans on
buildings in the area which are similar to the Building) shall be included in
Operating Expenses. Costs and expenses referred to in this Section shall be
ascertained in accordance with generally accepted accounting principles,
including allowance for appropriate reserves, and allocated to appropriate
fiscal periods on the accrual method of accounting.
Landlord shall prepare annually during the Term a budget of Landlord's
Operating Expenses. A copy of the budget for each calendar year shall be
delivered by Landlord to Tenant by November 1 of the previous calendar year
during the Term. Tenant may thereafter consult with Landlord with respect to
such budget and Tenant shall have the right reasonably to require Landlord to
obtain competitive bids for particular budget items. In addition to the
foregoing, Landlord shall cause to be kept books and records showing ▇▇▇▇▇▇▇▇'s
Operating Expenses in accordance with a good and appropriate system of account
and accounting practices and such books and records shall be made available to
Tenant on reasonable notice for inspection.
If Landlord incurs expenses of periodic testing to assure that the Premises
and surrounding land are free of hazardous materials, agents or substances and
to assure compliance with codes, regulations and laws, which testing is
performed by Landlord in response to a reasonable belief that Tenant or Tenant's
agents, employees or contractors may have caused a release of hazardous
materials, agents or substances or an event of noncompliance with codes,
regulations or laws, then such testing expenses shall be paid for by Tenant if
Tenant is determined to have caused such a release or noncompliance.
ARTICLE V
Additional Covenants
5.1 Tenant's Covenants. Except as otherwise provided in Section 5.2, Tenant
covenants that at all times during the Term and such further time as Tenant
(or persons claiming by, through or under it) occupies the Premises or any part
thereof, it shall perform and observe the following conditions, all at its
sole cost and expense:
5.1.1 Utilities and Services. Except for Landlord's Work, Tenant shall provide
and pay all charges and deposits for gas, water, sewer, electricity, and other
energy, and utilities used or consumed on the Premises during the Term which
now or hereafter serve the Premises. Landlord shall be under no obligation
whatsoever to furnish any such services to the Premises, and shall not be
liable for (nor suffer any reduction in any rent on account of) any interruption
or failure in the supply of the same.
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5.1.2 Maintenance. Tenant shall maintain, repair and secure the Premises, all
improvements and appurtenances thereto, all access areas thereof, and all
utilities, facilities, installations and equipment used in connection therewith,
and shall pay all costs and expenses of so doing, keeping the Premises in good
order, repair and condition, reasonable wear and tear, and damage by casualty
and taking (to the extent Provided in Article VI only) excepted. Without
limiting the generality of the foregoing, Tenant shall keep all interior walls,
floor surfaces and coverings, glass, windows, doors, partitions, all fixtures
and equipment, utilities, pipes and drains and other installations used in
connection with the Premises in such good order, repair and condition and
shall provide all painting and floor covering to the Premises.
5.1.3 Use and Compliance with Law. Tenant shall use the Premises continuously
and uninterruptedly only for the Permitted Uses set forth in Section 1.1, and
then only as permitted under laws, regulations and orders applicable from time
to time, including without limitation municipal by-laws, land use and
environmental laws and regulations, and shall procure all approvals, licenses
and permits necessary therefor, in each case giving Landlord true and complete
copies of the same and all applications therefor. Tenant shall promptly comply
with all present and future laws applicable to Tenant's use of the Premises or
Tenant's signs thereon, foreseen or unforeseen, and whether or not the same
necessitate structural or other extraordinary changes or improvements to
the Premises or interfere with its use and enjoyment of the Premises, and shall
keep the Premises equipped with adequate safety appliances and comply with all
requirements, reasonable in light of the use Tenant is making of the Premises,
of insurance inspection or rating bureaus having jurisdiction. Landlord shall
not unreasonably withhold approval of improvements to the Premises, including
structural improvements, required by laws applicable to Tenant's use of the
Premises. If ▇▇▇▇▇▇'s use of the Premises results in any increase in the
premium for any insurance carried by Landlord, then upon Landlord's notice to
Tenant of such increase Tenant shall pay the same to Landlord upon demand as
additional rent. Tenant shall, in any event, indemnify and save Landlord
harmless from all loss, claim, damage, cost or expense (including reasonable
attorneys' fees of counsel of Landlord's choice against whom ▇▇▇▇▇▇ makes no
reasonable objection) on account of ▇▇▇▇▇▇'s failure so to comply with the
obligations of this Section (paying the same to Landlord upon demand as
additional rent). Landlord, as part of Landlord's Work, has undertaken to
cause the Building access to be in compliance in all material respects with
the Americans with Disabilities Act (42 U.S.C. sec.12101) ("ADA"). Tenant shall
be responsible for compliance in all material respects with the ADA within the
Premises. Landlord shall be responsible for the compliance of the Premises
with applicable building, zoning, and fire codes as of the Commencement Date,
provided that such compliance is not required by Tenant's particular use of
the Premises. Landlord shall also be responsible for compliance, if required
by law, with any changes occurring after the date of Lease execution to
applicable building, zoning, and fire codes, provided that such compliance is
not required by Tenant's particular use of the Premises. Except as set
forth in the preceding sentence, Tenant shall bear the sole risk of all
present or future laws affecting Tenant's use of the Premises or appurtenances
thereto, and Landlord shall not be liable for (nor suffer any reduction in any
rent on account of) any interruption, impairment or prohibition affecting the
Premises or Tenant's use thereof resulting from the enforcement of laws.
Tenant shall conform to all reasonable rules and regulations from time to time
promulgated by Landlord for the operation, care and use of the Building and
appurtenant improvements and areas in which Tenant is granted rights of use
by the terms of this Lease. Landlord shall give Tenant notice of any such
rules and regulations promulgated by Landlord.
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5.1.4 Liens and Encumbrances. Tenant shall not create or suffer, shall keep
Landlord's property, the Premises and Tenant's leasehold free of, and shall
promptly remove and discharge, any lien, notice of contract, charge, security
interest, mortgage or other encumbrance which arises for any reason,
voluntarily or involuntarily, as a result of any act or omission by Tenant or
persons claiming by, through or under Tenant, or any of their agents,
employees or independent contractors, including without limitation liens which
arise by reason of labor or materials furnished or claimed to have been
furnished to Tenant or for the Premises.
5.1.5 Indemnity. Tenant shall assume exclusive control of all areas of the
Premises, including all improvements, utilities, facilities and installations
now or hereafter thereon, and all liabilities, including without limitation
tort liabilities, incident thereto; and Tenant shall indemnify, save harmless
and defend Landlord its partners, mortgagees, agents, employees, independent
contractors, invitees and other persons acting under Landlord (collectively
"Indemnitees") from all liability, claim or cost (including reasonable
attorneys' fees of counsel of an Indemnitee's choice against whom ▇▇▇▇▇▇ makes
no reasonable objection) arising in whole or in part out of any injury, loss,
theft or damage (except if such is due solely and directly to the negligence of
Landlord or its employees) to any person or property while on or about the
Premises, or in transit thereto or therefrom, or out of any condition within
the Premises, or arising out of any breach of any Lease covenant, or from any
act or omission of Tenant or persons claiming by, through or under Tenant, or
any of their agents, employees, independent contractors, or invitees (paying
the same to Landlord upon demand as additional rent). The provisions of this
Section shall survive the Term of this Lease, but shall apply only to
liabilities, claims and costs arising out of actions or events occurring during
the Term.
5.1.6 Landlord's Right to Enter. Landlord and its agents or employees may
upon reasonable notice enter the Premises during business hours (and in case
of emergency at any time) for the purpose of performing repairs or replacements,
or exercising any of the rights reserved to Landlord herein, or securing or
protecting Landlord's property or the Premises, or removing any alterations or
additions not consented to by Landlord, and similarly upon reasonable notice
may show the Premises to prospective purchasers and lenders, and during the
last 12 months of the Term to prospective tenants. Except in case of
emergency, Landlord shall be subject in entering the Premises to reasonable
security conditions, if any, set forth by Tenant in writing to Landlord and
shall exercise its rights hereunder so as to minimize any material adverse
affect on Tenant's conduct of its business in the Premises.
5.1.7 Personal Property at Tenant's Risk. All of the furnishings, fixtures,
equipment, effects and property of every kind, nature and description which,
during the occupancy of the Premises by Tenant (or persons claiming by, through
or under Tenant) may be on the Premises or elsewhere on Landlord's property,
shall be at the sole risk and hazard of Tenant. Except to the extent such
damage is caused by Landlord or its employees, Landlord shall not be liable for,
and Tenant expressly waives all claims against Landlord, its agents and
employees, for damage to person or property sustained by Tenant, or any person
claiming by, through or under Tenant, resulting from any accident or occurrence
in or on the Premises or the property of which the Premises are a Part,
including but not limited to, claims for damage resulting from water, wind, ice,
steam, explosion or otherwise, or from the rising of water or the leakage or
bursting of water pipes, steam pipes, gas pipes, the sprinkler system or other
pipes, or from theft, vandalism, lack of repair, defect, structural or non-
structural failure, or from any other cause whatsoever, and except only to
the extent provided above in this Section, no part of said loss or damage shall
be charged to or borne by Landlord or Landlord's agents or employees.
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5.1.8 Overloading, Nuisance, Etc. Tenant shall not, either with or without
negligence, injure, overload, deface, damage or otherwise harm Landlord's
property, the Premises or any part or component thereof; commit any nuisance;
permit the emission of any hazardous agents or substances; allow the release
or other escape of any biologically or chemically active or other hazardous
substances or materials so as to impregnate, impair or in any manner affect,
even temporarily, any element or part of Landlord's property or the Premises,
or allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for
the storage and use of such substances or materials; nor shall Tenant bring
onto the Premises any such materials or substances except to use in the
ordinary course of Tenant's business, and then only after written notice is
given to Landlord of the identity of such substances or materials (the identity
of all such substances and materials, if any, so used on the date hereof being
set forth in a separate letter received by Landlord before the date of this
Lease); permit the occurrence of objectionable noise or odors; or make, allow
or suffer any waste whatsoever to Landlord's property or the Premises. Landlord
may inspect the Premises from time to time, and Tenant will cooperate with such
inspections. Without limitation, hazardous substances shall include such
substances described in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. 9601 et seq. and the
regulations adopted thereunder, and hazardous materials shall include such
materials described in the Resource Conservation and Recovery Act, as amended,
42 U.S.C. 6901 et seq.; in the Massachusetts Hazardous Waste Management Act,
as amended, M.G.L. Chapter 21, and the Massachusetts Oil and Hazardous
Material Release Prevention Act, as amended, M.G.L. Chapter 21 E, and the
regulations adopted under these acts. In addition, ▇▇▇▇▇▇ shall execute
affidavits, representations and the like from time to time at Landlord's
request concerning ▇▇▇▇▇▇'s best knowledge and belief regarding the presence
or absence of hazardous materials on the Premises or land pertaining thereto.
In all events, ▇▇▇▇▇▇ shall indemnify Landlord and mortgagees in the manner
elsewhere provided from any release of hazardous materials on the Premises or
in the Park by Tenant, by Tenant's employees, agents or contractors or by those
claiming by, through or under Tenant. (At the request of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ will
from time to time confirm such indemnity to mortgagees directly with such
mortgagees.) Landlord shall indemnify Tenant from any past or future release
of hazardous materials on the Premises or in the Park by Landlord, by
Landlord's employees, agents or contractors.
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5.1.9 Yield Up. At the expiration or earlier termination of this Lease,
Tenant (and all persons claiming by, through or under it) shall, without the
necessity of any notice, surrender the Premises (including all Tenant Work and
all replacements thereof, except ▇▇▇▇▇▇'s trade fixtures and personal property
and except such additions, alterations and other Tenant Work as Landlord may
direct to be removed, which shall be removed by Tenant and the Premises
restored to their pre-existing condition) and all keys to the Premises, remove
all of its trade fixtures and personal property not bolted or otherwise attached
to the Premises (and such trade fixtures and other property bolted or attached
to the Premises as Landlord may direct), and all Tenant's signs wherever
located, in each case repairing damage to the Premises which results in the
course of such removal and restoring the Premises to a fully functional and
tenantable condition (including the filling of all floor holes, the removal of
all disconnected wiring back to junction boxes and the replacement of all
damaged ceiling tiles). Tenant may, at the time Tenant requests approval of
any Tenant Work, ask Landlord whether such Tenant Work will be required to be
removed at the expiration of the Term. If Landlord does not indicate in
response to such an inquiry that such Tenant Work will be subject to removal,
then Landlord may not require its removal at the expiration of the Term.
Tenant shall yield up the Premises broom-clean and in good order, repair and
condition, reasonable wear and tear and damage by casualty and taking (to the
extent provided in Article VI only) excepted. Any property not so removed
within thirty (30) days after the expiration or termination of the Lease shall
be deemed abandoned and may be removed and disposed of by Landlord in such
manner as Landlord shall determine, and Tenant shall pay to Landlord the entire
cost and expense incurred by it in effecting such removal and disposition and
in making any incidental repairs to the Premises.
5.1.10 Holding Over. If Tenant (or anyone claiming by, through or under
Tenant) shall remain in possession of the Premises or any part thereof after
the expiration or earlier termination of this Lease with respect to any portion
of the Premises without any agreement in writing executed with Landlord, the
person remaining in possession shall be deemed a tenant at sufferance, Tenant
shall thereafter pay Annual Base Rent at one and one-half times the amount
payable for the twelve month period immediately preceding such expiration or
termination and with all additional rent payable and covenants of Tenant in
force as otherwise herein provided, and Tenant shall be liable to Landlord for
all damages arising from such breach, including consequential damages with
respect to any portion of the Premises committed to a successor tenant if
▇▇▇▇▇▇▇▇ has notified Tenant that Landlord has a successor tenant for all or a
portion of the Premises. After acceptance of the full amount of such rent by
Landlord the person remaining in possession shall be deemed a tenant from
month-to-month at such rent and otherwise subject to and having agreed to
perform all of the provisions of this Lease, but Landlord will not be deemed
to have relinquished any claims for damages, which shall not be unreasonably
withheld, conditioned or delayed.
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5.1.11 Assignment, Subletting. Tenant shall not assign this Lease, or sublet
or license the Premises or any portion thereof, or advertise the Premises for
assignment or subletting or permit the occupancy of all or any portion of the
Premises by anybody other than Tenant (all of the foregoing actions are
sometimes collectively referred to as a "transfer") without obtaining, on each
occasion, the prior consent of Landlord, which shall not be unreasonably
withheld, conditioned or delayed. A transfer shall include, without limitation,
any transfer of Tenant's interest in this Lease by operation of law, merger or
consolidation of Tenant into any other firm or corporation, or any liquidation
of Tenant or a substantial part of Tenant's assets. Notwithstanding the
foregoing, a transfer shall not include a merger or consolidation of Tenant into
any other firm or corporation if the resulting firm or corporation is as a
matter of law directly and primarily liable to Landlord hereunder and if the
resulting firm or corporation has a net worth at least equal to the net worth
of Tenant prior to such merger or consolidation. Any transfer which relates
to 75% or greater of the rentable square footage of the Premises shall have the
effect of terminating the Rights to Purchase and Right of First Offer
contained in Section 2.6 of this Lease.
Tenant shall not offer to make or enter into negotiations with respect to a
transfer to (i) any tenant (or any affiliate of such tenant) in the Park, in
Ledgemont Research Park or in any building within a 10 mile radius in which,
to Tenant's knowledge, principals of The ▇▇▇▇ Companies hold ownership
interests; (ii) any party with whom, to Tenant's knowledge, Landlord is then
negotiating with respect to space in the Park or Ledgemont Research Park; or
(iii) any party which would be of such type, character or condition as to be
inappropriate as a tenant for a first class office building. If ▇▇▇▇▇▇
proposes a transfer of this Lease or a sub-letting of 75% or greater of the
rentable square footage of the Premises, Landlord may elect by written notice
to Tenant to terminate this Lease contingent upon the proposed transferee
becoming directly obligated to Landlord upon such proposed terms; and upon the
proposed assignee or sub-tenant so obligating itself, Tenant shall thereafter
be free of further obligation hereunder. Tenant shall have the right to assign
the Lease to an affiliated company, provided such company has an equal or better
financial condition in Landlord's reasonable opinion, than ▇▇▇▇▇▇. If Tenant
does transfer with ▇▇▇▇▇▇▇▇'s consent, and if the consideration, rent, or
other charges payable to Tenant under such transfer (net of the cost of
brokerage commissions and of any tenant work allowance or other concession
granted by ▇▇▇▇▇▇ to the transferee, amortized over the term of the assignment
or sublease) exceed the rent and other charges to be paid hereunder (pro-rated
based on floor area in the case of a sub-letting, license or other occupancy of
less than the entire floor area of the Premises in question), then Tenant
shall pay to Landlord, as additional rent, fifty percent (50%) the amount of
such excess when and as received. Without limiting the generality of the
foregoing, any lump-sum payment or series of payments due (including for the
purchase of so-called leasehold improvements) on account of any transfer shall
be deemed to be in excess of rent and other charges in its or their entirety.
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Notwithstanding any transfer of this Lease, ▇▇▇▇▇▇'s (and any guarantor's)
liability to Landlord shall in all events remain direct and primary. In the
case of any requested consent to a transfer, Tenant shall deliver to Landlord
at the time thereof (i) a true and complete copy of the proposed instrument
containing all of the terms and conditions of such transfer, and (ii) a
written agreement of the assignee, sub-tenant or licensee, in recordable form
reasonably approved by Landlord, agreeing with Landlord to perform and observe
all of the terms, covenants and conditions of this Lease. Tenant shall pay to
Landlord, as additional rent, Landlord's reasonable attorneys' fees in
reviewing any transfer contemplated by this Section, whether or not Landlord
consents to the same.
Any transferee of all or a substantial part of ▇▇▇▇▇▇'s interest in the
Premises shall be deemed to have agreed directly with Landlord to be jointly
and severally liable with Tenant for the performance of all of Tenant's
covenants under this Lease; and such assignee shall upon request execute and
deliver such instruments as Landlord reasonably requests in confirmation thereof
(and agrees that its failure to do so shall be subject to the default
provisions). Landlord may collect rent and other charges from such transferee
(and upon notice such transferee shall pay directly to Landlord) and apply the
net amount collected to the rent and other charges herein reserved, but no
transfer shall be deemed a waiver of the provisions of this Section, or the
acceptance of the transferee as a tenant, or a release of Tenant or any
guarantor from direct and primary liability for the performance of all of the
covenants of this Lease. The consent by Landlord to any transfer shall not
relieve Tenant from the obligation of obtaining the express consent of Landlord
to any modification of such transfer or a further assignment, subletting,
license or occupancy; nor shall Landlord's consent alter in any manner
whatsoever the terms of this Lease, to which any transfer at all times shall
be subject and subordinate.
5.2 Building Services. Landlord shall furnish the services and utilities
hereafter described as part of Landlord's Operating Expenses. Tenant may
obtain additional services from time to time if the same are obtainable by
Landlord upon reasonable advance request, or Landlord may furnish the same
without request if Landlord determines that Tenant's use or occupancy of the
Premises necessitates the same; and in either case Tenant shall pay for the
same at reasonable rates from time to time established by Landlord upon demand
as additional rent. Landlord's obligation shall be subject to the other
provisions of this Lease, reasonable wear and tear and damage caused by or
resulting from the acts or omissions of Tenant or its transferees (or their
agents, employees, invitees and independent contractors), fire, casualty or
eminent domain takings.
5.2.1 Landlord's Maintenance. Landlord shall reasonably maintain, in a manner
consistent with the maintenance standards generally applicable in first-class
quality office buildings in the Boston area competitive with the Building, the
foundations, exterior walls, masonry, structural floors and roof, the plumbing,
heating, ventilating and air conditioning systems, the elevators , and the
exterior walkways, sidewalks, driveways and parking areas referred to in
Section 2.1; but in no event shall Landlord be obligated to repair glass,
windows or doors of the Premises, whether interior or exterior (which
responsibility shall be Tenant's).
5.2.2 Grounds Maintenance/Snow Removal. Landlord shall reasonably maintain and
landscape the grounds adjacent to the Building; shall reasonably maintain the
walkways, driveways and parking areas referred to in Section 2.1 (including
maintenance of the lighting incidental thereto and striping of the parking
areas) and shall remove snow from such walkways, driveways and parking areas.
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5.2.3 Security. Landlord shall provide reasonable security services for the
Building. Such security services will include (i) perimeter card access into
the Building using a system of individual magnetic badges with time and date
recording of individual identities and lock-out capability; (ii) an alarm
system for all access doors not equipped with perimeter card access; and
(iii) security guards during appropriate hours. Landlord shall consult with
Tenant at the beginning of the Term and from time to time during the Term in an
effort (i) to adjust the security services for the Building to meet Tenant's
reasonable security needs and (ii) to determine appropriate security and access
policies regarding Quannapowitt Parkway and other Park driveways. Landlord
may fulfill its obligations under this Section 5.2.3 by contracting with a
security service, provided that the identity of such security service shall
be approved by Tenant in its reasonable discretion; and in no event will
Landlord be liable to Tenant for any act or omission of any security service
approved by Tenant. At any time during the Term, upon written notice to
Landlord of not less than 60 days, Tenant may elect to perform or to contract
for such security services directly, in which event Landlord's Operating
Expenses shall be adjusted accordingly.
5.2.4 Elevator, Heat, and Cleaning. Landlord shall: (i) provide exclusive
elevator facilities ; (ii) furnish heat to the Premises during the normal
heating season on Mondays through Fridays excepting legal holidays (legal
holidays shall consist of ten days to be agreed upon by Landlord and Tenant
on an annual basis) from 8:00 a.m. to 6:00 p.m. (such hours on such days being
referred to as "business days", provided that such hours and days may be
modified from time to time at Tenant's request), and on any other days upon
▇▇▇▇▇▇'s request; and (iii) cause the office areas of the Premises to be
reasonably cleaned provided the same are maintained and kept in good order by
Tenant. Cleaning specifications for the Building are attached hereto as
Appendix B. Landlord may from time to time modify such cleaning specifications
provided that Tenant is given notice thereof and provided that such
specifications shall in no event be modified in such a way as to fall below
cleaning standards generally applicable in first-class quality office buildings
in the Boston area competitive with the Building. Landlord shall provide trash
removal from the Building.
5.2.5 Air-Conditioning. Tenant shall be entitled to use such air-conditioning
equipment, as may be installed on the Premises in accordance with Appendix C.
If Tenant requires additional air-conditioning, for business machines
(including computers and computer terminals), meeting rooms or other purposes,
or because of unusual electrical loads, any additional air-conditioning units,
chillers, condensers, compressors, ducts, piping and other equipment will be
installed and maintained by Landlord at Tenant's sole cost and expense, but
only to the extent that the same are compatible with the Building and its
mechanical systems. All equipment installed pursuant to the preceding
sentence shall be the sole property of Landlord. ▇▇▇▇▇▇ agrees to cooperate
with ▇▇▇▇▇▇▇▇ and to abide by all reasonable Building regulations which Landlord
may, from time to time, prescribe for the proper functioning and protection
of any air-conditioning systems and in order to maximize the effect thereof
and to conserve air-conditioning.
5.2.6 Energy Conservation. Notwithstanding anything to the contrary in this
Section or otherwise in this Lease, Landlord may institute such policies,
programs and measures as may be appropriate for the conservation of energy or
energy services, or as may be required to comply with applicable codes, rules,
regulations or standards.
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5.3 Interruptions. Landlord shall not be liable to Tenant in damages or by
reduction of rent or otherwise by reason of inconvenience or annoyance or for
loss of business arising from Landlord or its agents or employees entering the
Premises for any of the purposes authorized in this Lease or for repairing,
altering or improving the Building in a manner reasonable in light of the
circumstances, unless negligent in doing so. In case Landlord is prevented or
delayed from making any repairs or replacements or furnishing any services or
performing any other covenant or duty to be performed on Landlord's part by
reason of any cause reasonably beyond Landlord's control, Landlord shall not be
liable to Tenant therefor, 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. If the heating or air conditioning systems shall
fail and Landlord provides such services from other facilities within the
Building, then Landlord and Tenant shall consult as to who shall pay the cost
of such replacement services. 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 give Tenant such notice as is practicable under the
circumstances of the expected duration of such stoppage and will exercise
reasonable diligence to eliminate the cause thereof. Except in case of
emergency repairs Landlord will give Tenant reasonable advance notice of any
contemplated stoppage and will use reasonable efforts to avoid unnecessary
inconvenience to Tenant by reason thereof.
5.4 Real Estate Taxes. Except as otherwise permitted under ▇.▇. ▇. 59 T64,
Landlord shall pay, on or before the date due, all real estate taxes on the
Building and the appurtenant land so long as Tenant has made timely payment of
all additional rent under Section 4.3.1.
ARTICLE VI
Insurance; Casualty; Taking
6.1.1 Public Liability Insurance. Tenant shall obtain and maintain throughout
the Term comprehensive public liability insurance against all claims and demands
for any injury to persons or property which may be claimed to have occurred on
or in connection with the Premises, naming Landlord and, if requested,
▇▇▇▇▇▇▇▇'s mortgagees and other persons designated by Landlord as additional
insureds, in an amount which shall, at the beginning of the Term, be at least
equal to the amount set forth in Section 1.1, and from time to time during the
Term shall be for such higher amount, if any, as directed by ▇▇▇▇▇▇▇▇ based
on amounts customarily carried in the Boston metropolitan area with respect to
property similar to and used for similar purposes as Tenant then is using the
Premises. Such insurance shall provide that it will not be subject to
cancellation, termination or change except after at least 30 days prior written
notice to Landlord (and Landlord's mortgagees and such additional insureds).
The policy or policies, or a duly executed certificate or certificates for the
same, shall be deposited with Landlord at the beginning of the Term, and
renewals of such policies shall be so deposited not less than 30 days prior to
the expiration of coverage.
6.1.2 Insurance By Landlord. (a) In the event Tenant breaches any covenant or
fails to observe any condition set forth above in this Article VI, then without
limiting any other right or remedy, and notwithstanding any other provision
herein concerning notice and cure of defaults, Landlord may immediately and
with five days notice to Tenant obtain such insurance, and Tenant shall pay
the cost thereof and Landlord's expenses related thereto upon demand as
additional rent.
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(b) As part of Landlord's Operating Expenses, Landlord shall maintain physical
damage insurance covering the Building shell, core, and Landlord's Work. Such
insurance shall be written on an "all risks" of physical loss or damage basis
for the full replacement cost of the covered items.
6.2 Waivers of Subrogation. To the extent reasonably obtainable, any insurance
carried by either Landlord or Tenant with respect to the Premises or property
therein or occurrences thereon shall include a clause or endorsement denying to
the insurer rights of subrogation against the other party to the extent rights
have been waived by the insured hereunder prior to occurrence of injury or loss.
Without limiting any other provisions of this Lease, each party hereby waives
any rights of recovery against the other for injury or loss due to hazards
covered by such insurance, to the extent only of the indemnification received
thereunder.
6.3 Damage or Destruction of Premises. If the Premises or any part thereof
shall be damaged by fire or other insured casualty, then, subject to the
following provisions of this Section, Landlord shall proceed with diligence,
subject to then applicable statutes, building codes, zoning ordinances and
other laws and regulations of any governmental authority, and at the expense
of Landlord (but only to the extent of insurance proceeds received and made
available to Landlord by any mortgagee) to repair or cause to be repaired such
damage, excluding any items installed or paid for by Tenant which Tenant is
permitted to remove upon expiration (which items shall be Tenant's
responsibility to repair.) However, if any act or neglect of Tenant or such
person prevents Landlord or its mortgagees from collecting all insurance
proceeds, then the cost of repairing the casualty damage shall be paid by
▇▇▇▇▇▇ except to the extent any insurance proceeds are actually received by
Landlord or mortgagees (they being under no obligation to litigate their
entitlement), and there shall be no abatement of rent.
If (i) all or any substantial part (meaning more than 25% of floor area or of
insurable value) of the Premises is so damaged by fire or other casualty
(whether or not insured) that substantial alteration, reconstruction or
demolition of the Building shall in Landlord's sole discretion be appropriate
and a substantial expenditure shall in Landlord's sole discretion be required to
make the Premises habitable, or (ii) if any casualty occurs to the Premises
during the second to last year of the Term and its repair will reasonably cost
more than $750,000, or (iii) if any casualty occurs to the Premises during the
last year of the Term and its repair will reasonably cost more than $500,000,
then in any such case, this Lease and the Term hereof may be terminated at the
election of Landlord by a notice in writing of its election so to terminate
given to Tenant within six (6) months following adjustment of such casualty
loss with the insurer, the effective termination date being not less than one
hundred twenty (120) nor more than one hundred fifty (150) days thereafter.
In the case of clause (i) above, if a substantial expenditure is not required
to make the Premises habitable, Landlord may nonetheless terminate this Lease
if Landlord pays Tenant damages equal to the amount by which the then present
value of the fair market rent for the Premises for the balance of the Term
absent this Lease exceeds the then present value of the rent due under this
Lease for the balance of the Term.
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Tenant shall be entitled to a just abatement of Annual Base Rent (but not for
additional rent on account of Landlord's Taxes and Operating Expenses) during
the period of impaired use of the Premises, in no event, however, exceeding 12
months, provided that Landlord shall be entitled to maintain rent continuation
insurance and include the premium therefor as part of Landlord's Operating
Expenses. If any mortgagee refuses to permit insurance proceeds to be applied
to replacement of the Premises, and neither Landlord nor such mortgagee has
commenced such replacement within six (6) months following adjustment of such
casualty loss with the insurer, then Tenant may, until any such replacement
commences, terminate this Lease by giving at least thirty (30) days prior
written notice thereof to Landlord. Tenant's obligation to pay all rent and
to perform and observe all other covenants and conditions of this Lease shall
not be affected by any damage or casualty except as provided herein with respect
to the area so damaged or taken, and the Term of this Lease and rent hereunder
shall continue nonetheless.
6.4 Eminent Domain. In the event that all or any substantial part of the
Premises or the Building (meaning in either case more than 25% of floor area)
are taken (other than for temporary use, hereafter described) by public
authority under power of eminent domain (or by conveyance in lieu thereof, of
which Landlord shall give Tenant advance notice), then by notice given within
three months following the recording of such taking (or conveyance) in the
appropriate registry of deeds, this Lease may be terminated at Landlord's
election 30 days after such notice, and rent shall be apportioned as of the
date of termination. If this Lease is not terminated as aforesaid, Landlord
shall within a reasonable time thereafter, diligently restore what may remain
of the Premises (excluding any items installed or paid for by Tenant which
Tenant is permitted or may be required to remove upon expiration) to a
tenantable condition. In the event more than 25% of the rentable floor area
of the Premises is taken (other than for temporary use) and such taking renders
the Premises unsuitable for the continuing conduct of Tenant's business therein,
then Tenant shall have the right to terminate this Lease within three months
following such taking by 30 days written notice to Landlord. In the event
some portion of rentable floor area is taken (other than for temporary use)
and this Lease is not terminated, Annual Base Rent shall be proportionally
abated for the remainder of the Term. In the event of any taking of the
Premises or any part thereof for temporary use, (i) this Lease shall be and
remain unaffected thereby and rent shall not ▇▇▇▇▇, and (ii) Tenant shall be
entitled to receive for itself such portion or portions of any award made for
such use with respect to the period of the taking which is within the Term,
provided that if such taking shall remain in force at the expiration or earlier
termination of this Lease, then Tenant shall pay to Landlord a sum equal to
the reasonable cost of performing Tenant's obligations hereunder with respect
to surrender of the Premises and upon such payment shall be excused from such
obligations.
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So long as Tenant is not then in breach of any material covenant or condition
of this Lease, any specific damages which are expressly awarded to Tenant on
account of its relocation expenses and rent if the Lease continues, and
specifically so designated, shall belong to Tenant. Except as provided in the
preceding sentences of this paragraph, Landlord reserves to itself, and Tenant
releases and assigns to Landlord, all rights to damages accruing on account of
any taking or by reason of any act of any public authority for which damages
are payable. ▇▇▇▇▇▇ agrees to execute such further instruments of assignment
as may be reasonably requested by ▇▇▇▇▇▇▇▇, and to turn over to Landlord any
damages that may be recovered in any proceeding or otherwise; and Tenant
irrevocably appoints Landlord as its attorney-in-fact with full power of
substitution so to execute and deliver in Tenant's name, place and stead all
such further instruments if Tenant shall fail to do so after ten (10) days
notice.
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ARTICLE VII
Default
7.1 Events of Default. (a) If Tenant fails to pay Annual Base Rent or any
additional rent or other sum or charge hereunder when due and such default
continues for ten (10) days; or (b) if more than two notices of default are
properly given in any twelve month period, or (c) if Tenant shall vacate or
abandon all or substantially all of the Premises, or (d) if any
assignment shall be made by Tenant (or any assignee, sublessee or guarantor of
Tenant) for the benefit of creditors, or (e) if Tenant's leasehold interest
shall be taken on execution or by other process of law, or (f) if a
petition is filed by Tenant (or any assignee, sublessee or guarantor of
Tenant) for adjudication as a bankrupt, or for reorganization or an arrangement
under any provision of any bankruptcy act then in force and effect, or (g) if
an involuntary petition under the provisions of any bankruptcy act is filed
against Tenant (or any assignee, sublessee or guarantor of Tenant) and such
involuntary petition is not dismissed within sixty (60) days thereafter, or
(h) if Tenant (or any assignee, sublessee or guarantor of Tenant) shall be
declared bankrupt or insolvent according to law, or (i) if a receiver, trustee
or assignee shall be petitioned for and not contested by Tenant for the whole
or any part of Tenant's (or such assignee's, sublessee's or guarantor's)
property, or if a receiver, trustee or assignee shall be appointed over ▇▇▇▇▇▇'s
(or such other person's) objection and not be removed within sixty (60) days
thereafter, or (j) if any representation or warranty made by Tenant shall be
untrue in any material respect, or (k) if Tenant fails to perform any other
covenant, agreement or condition hereunder and such default continues for thirty
(30) days after notice (provided, however, that such thirty (30) day period
shall be reasonably extended in the case of non-monetary default if the matter
complained of can be cured, but the cure cannot be completed within such period
and Tenant begins promptly to cure within such period and thereafter diligently
completes the cure; if such matters cannot be cured then there shall be no cure
period), then, and in any such case, Landlord and its agents and employees
lawfully may, in addition to and not in derogation of any remedies for any
preceding breach, immediately or at any time thereafter, without demand or
notice and with or without process of law, enter into and upon the Premises or
any part thereof in the name of the whole, or mail or deliver a notice of
termination of the Term addressed to Tenant at the Premises and thereby
terminate this Lease and repossess the same as of Landlord's former estate.
Upon such entry or mailing or delivery, as the case may be, the Term shall
terminate, all executory rights of Tenant and all obligations of Landlord
under this Lease shall immediately cease, and Landlord may expel Tenant and all
persons claiming by, through or under Tenant and remove its and their effects
without being deemed guilty of any manner of trespass and without prejudice to
any remedies which might otherwise be used for arrears of rent or prior breach
of covenants; and Tenant hereby waives to the extent permitted by law all
statutory and equitable rights to its leasehold (including without limitation
rights in the nature of further cure or of redemption, if any). Landlord may,
with notice, store Tenant's effects (and those of any person claiming by,
through or under Tenant) at the expense and risk of Tenant and, if Landlord
so elects, may sell such effects at public auction or auctions or at private
sale or sales after seven (7) days notice to Tenant (which notice Tenant agrees
is reasonable) and apply the net proceeds to the payment of all sums due to
Landlord from Tenant, if any, and pay over the balance, if any, to Tenant. If
any payment of Annual Base Rent, additional rent, or other payment due from
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Tenant to Landlord is not paid when due, then Landlord may, at its option, in
addition to all other remedies hereunder, impose a late charge on Tenant equal
to 3% of the amount in question plus interest on the amount in question from
30 days after the date due at the rate of three percent (3%) per annum above
the rate of interest announced by State Street Bank and Trust Company from time
to time as its prime rate; provided interest shall never exceed the maximum
rate permitted under applicable law. Such late charge will be due upon demand
as additional rent.
▇▇▇▇▇▇▇▇'s expenses incurred with respect to Landlord's Work and the like
(collectively "Tenant Inducements"), if any, have been agreed to by Landlord as
inducements for Tenant faithfully to perform all of its obligations. For all
purposes, upon the occurrence of any default and the lapse of the applicable
cure period, if any, any Tenant Inducements shall be deemed void as of the
date hereof as though such had never been included, and the aggregate amounts
(or value) thereof will be deemed to be additional rent then immediately due.
The foregoing will occur automatically without any further notice by Landlord,
whether or not the Term is then or thereafter terminated and whether or not
Tenant thereafter corrects such default.
7.2 Remedies for Default.
(a) Reletting Expenses Damages. If this Lease is terminated for default,
then Tenant covenants, as an additional cumulative obligation after such
termination, to pay all of Landlord's reasonable costs and expenses related
thereto or in collecting amounts due hereunder, including attorneys fees, and
all of Landlord's reasonable expenses in connection with such reletting,
including without limitation, tenant inducements, brokerage commissions, fees
for legal services, expenses of preparing the Premises for reletting and the
like ("Reletting Expenses"). It is agreed by Tenant that Landlord may (i)
relet the Premises or any part or parts thereof for a term or terms which may
at Landlord's option be equal to or less than or exceed the period which would
otherwise have constituted the balance of the Term, and may grant such tenant
inducements as Landlord in its sole judgment considers advisable given the then
current market conditions, and (ii) make such alterations, repairs and
decorations in the Premises as Landlord in its sole discretion considers
advisable, and no action of Landlord in accordance with the foregoing nor any
failure to relet or to collect rent under any reletting shall operate or be
construed to release or reduce Tenant's liability. ▇▇▇▇▇▇▇▇'s Reletting
Expenses together with all sums otherwise provided for in this Lease, whether
incurred prior to or after such termination, shall be due and payable
immediately from time to time upon notice from Landlord.
(b) Termination Damages. If this Lease is terminated for default, then
unless and until Landlord elects lump sum damages described in (c) below Tenant
covenants, as an additional cumulative obligation after any such termination,
to pay punctually to Landlord all the sums and perform all the obligations
which Tenant covenants in this Lease to pay and to perform in the same manner
and to the same extent and at the same time as if this Lease had not been
terminated. In calculating the amounts to be paid by Tenant pursuant to the
preceding sentence Tenant shall be credited with the net proceeds of any rent
then actually received by Landlord from a reletting of the Premises after
deducting all sums provided for in this Lease to be paid by ▇▇▇▇▇▇ and not
then paid.
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(c) Lump Sum Damages. If this Lease is terminated for default, then Tenant
covenants, in lieu of the damage remedy set forth in paragraph (b) (which calls
for continued payments by Tenant over the balance of the Term), to pay forth-
with to Landlord at Landlord's election made by written notice to Tenant at any
time after termination, a single lump sum payment equal to the sum of (i) all
sums provided for in this Lease to be paid by ▇▇▇▇▇▇ and not then paid at the
time of such election, plus (ii) the excess of all of the rent reserved for
the residue of the Term (with additional rent on account of Operating Expenses
deemed to increase 10% in each year on a compounding basis) over all of the rent
which is actually received on account of the Premises during such period, which
rent from reletting shall be reduced by ▇▇▇▇▇▇▇▇'s Reletting Expenses described
above.
7.3 Remedies Cumulative. Any and all rights and remedies Landlord may have
under this Lease, and at law and equity, shall be cumulative and shall not be
deemed inconsistent with each other, and any two or more of all such rights and
remedies may be exercised at the same time insofar as permitted by law.
Nothing contained in this Lease shall, however, limit or prejudice the right of
Landlord to prove and obtain in proceedings for bankruptcy or insolvency by
reason of the termination of this Lease, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when and governing the
proceedings in which the damages are to be proved, whether such amount be
greater, equal to, or less than the amount of the loss or damages referred to
in the preceding Section.
7.4 Effect of Waivers of Default. Any consent or permission by Landlord to any
act or omission which otherwise would be a breach of any covenant or condition,
or any waiver by Landlord of the breach of any covenant or condition, shall not
in any way be held or construed to operate so as to impair the continuing
obligation of such covenant or condition, or otherwise operate to permit other
similar acts or omissions. No breach shall be deemed to have been waived unless
and until such waiver be in writing and signed by Landlord. The failure of
Landlord to seek redress for violation of or insist upon the strict
performance of any covenant or condition of this Lease, or the receipt by
Landlord of rent with knowledge of any violation, shall not be deemed a
consent to or waiver of such violation, nor shall it prevent a subsequent act,
which would otherwise constitute a violation, from in fact being a violation.
7.5 No Accord and Satisfaction; No Surrender. No acceptance by Landlord of a
lesser sum than the Annual Base Rent, additional rent or any other sum or charge
then due shall be deemed to be other than on account of the earliest installment
of such rent, sum or charge due; nor shall any endorsement or statement on any
check or in any letter accompanying any check or payment be deemed an accord
and satisfaction, and Landlord may accept such check or Payment without
prejudice to Landlord's right to recover the balance of such installment or
pursue any other right or remedy available to it. The delivery of keys (or any
similar act) to Landlord or any agent or employee of Landlord shall not operate
as a termination of this lease or an acceptance of a surrender of the Premises.
7.6 Waiver of Jury. Landlord and Tenant hereby waive trial by jury in any
summary proceeding in any emergency or other statutory remedy, or in any action
based, in whole or in part, on non-payment of rent; and Tenant further agrees
that it shall not interpose any counterclaim or set-off in any such proceeding.
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7.7 Landlord's Curing and Enforcement. If Tenant shall neglect or fail to
perform or observe any covenant or condition of this Lease not involving the
payment of money to Landlord and shall not cure such default within the
applicable cure period, Landlord may, at its option, without waiving any claim
for breach, at any time thereafter cure such default for the account of Tenant,
and any amount paid or any liability incurred by Landlord in so doing shall be
deemed paid or incurred for the account of Tenant, and Tenant shall reimburse
Landlord therefor, together with an administrative charge of fifteen (15%)
per cent of the amount thereof, on demand as additional rent; and Tenant shall
further indemnify and save Landlord harmless in the manner elsewhere provided
in this Lease in connection with all of Landlord's actions in effecting any
such cure unless caused by Landlord's negligence. Notwithstanding any other
provision herein concerning cure periods, Landlord may cure any default for the
account of Tenant after such notice to Tenant, if any, as is reasonable under
the circumstances (including telephone notice) if the curing of such default
prior to the expiration of the applicable cure period is reasonably
necessary to prevent likely damage to the Premises or other improvements or
possible injury to persons, or to protect Landlord's interest in its property
or the Premises. Tenant shall pay to Landlord on demand as additional rent
all of the costs and expenses of Landlord, including such administrative charge
and reasonable attorneys' fees, incurred in enforcing any covenant or condition
of this Lease. Without limiting any of its other rights or remedies, any sum
due hereunder shall, if not paid when due, be subject to the late charge set
forth in Paragraph 7.1.
7.8 Landlord's Default. In no event shall Landlord be in default unless
notice thereof has been given to Landlord (and all mortgagees of which ▇▇▇▇▇▇
has notice) and Landlord (or any such mortgagee at its sole discretion) fails
to perform within 30 days (provided, however, that such 30 day period shall
be reasonably extended if such performance begins within such period and
thereafter is diligently pursued, or if such mortgagee notifies Tenant within
such period that it intends to cure on behalf of Landlord and thereafter begins
and diligently pursues curing with reasonable promptness).
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ARTICLE VIII
Miscellaneous Provisions
8.1 Notice from One Party to the Other. All notices required or permitted
hereunder shall be in writing and shall be deemed duly served if mailed by
certified mail, postage prepaid, addressed, if to Tenant, at the Original
Address of Tenant or such other address as Tenant shall have last designated by
notice in writing to Landlord and, if to Landlord, at the Original Address of
Landlord or such other address as Landlord shall have last designated by notice
in writing to Tenant. If requested, ▇▇▇▇▇▇ shall send copies of all such
notices in like manner to Landlord's mortgagees and any other persons having an
interest in the Premises and designated by Landlord. Any notice so addressed
shall be deemed duly served on the second business day following the day of
mailing if so mailed by registered or certified mail, return receipt requested,
whether or not accepted.
8.2 Quiet Enjoyment. ▇▇▇▇▇▇▇▇ agrees that upon ▇▇▇▇▇▇'s paying all rent and
performing and observing all covenants, conditions and other provisions on its
part to be performed and observed, Tenant may peaceably and quietly have, hold
and enjoy the Premises during the Term without disturbance by Landlord or
anyone claiming by, through or under it, subject always to the terms of this
Lease, provisions of law, and rights or interests of record to which this Lease
may be or become subject and subordinate.
8.3 Limitation of Landlord's Liability. Landlord shall be liable only for
breaches of Landlord's obligations occurring while Landlord is owner of the fee
of which the Premises are a part (provided, however, that if Landlord shall ever
sell and lease-back such fee, or the ground thereof or the improvements thereon,
then "fee" shall, in such event, be deemed to mean Landlord's leasehold
interest). Tenant (and all persons claiming by, through or under ▇▇▇▇▇▇) agrees
to look solely to ▇▇▇▇▇▇▇▇'s interest from time to time in the fee of which the
Premises are a part for satisfaction of any claim or recovery of any judgment
from Landlord; it being agreed that neither Landlord nor any trustee,
beneficiary, partner, agent or employee of Landlord shall ever be personally or
individually liable for any claim or judgment, or otherwise, to Tenant (or such
persons). In no event shall Landlord ever be liable to Tenant (or such persons)
for indirect or consequential damages; nor shall Landlord ever be answerable or
liable in any equitable judicial proceeding or order beyond the extent of its
interest in the fee of which the Premises are a part.
8.4 Excusable Delay. In any case where either party hereto is required to do
any act (other than the payment of Annual Base Rent, additional rent or any
other sum or charge, including without limitation ascertaining the dates when
such rental payments are payable), delays caused by or resulting from war,
civil commotion, fire, flood or other casualty, labor difficulties, shortages
or other unavailability of labor, materials, equipment, energy or utility
services, unusually severe weather, or other like causes beyond such party's
reasonable control shall not be counted in determining the time during which
such act shall be completed, whether such time be a fixed date, a fixed time or
"a reasonable time," and such time shall be deemed to be extended by the period
of such delay.
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8.5 Applicable Law and Construction. This Lease may be executed in
counterpart copies and shall be governed by and construed as a sealed instrument
in accordance with the laws of The Commonwealth of Massachusetts. If any
provision shall to any extent be invalid, the remainder of this Lease shall
not be affected. Other than contemporaneous instruments executed and delivered
of even date, if any, this Lease contains all of the agreements between
Landlord and Tenant with respect to the Premises and supersedes all prior
dealings between them with respect thereto. There are no oral agreements
between Landlord and Tenant affecting this Lease. This Lease may be amended
only by an instrument in writing executed by Landlord and ▇▇▇▇▇▇. The
enumeration of specific examples of a general provision shall not be construed
as a limitation of the general provision. Unless a party's approval or consent
is required by its terms not to be unreasonably withheld, such approval or
consent may be withheld in the party's sole discretion. If Tenant is granted
any extension or other option, to be effective the exercise (and notice thereof)
shall be unconditional, time always being of the essence to any options; and
if Tenant purports to condition the exercise of any option or vary its terms in
any manner, then the purported exercise will be ineffective. This Lease and all
consents, notices and other related instruments may be reproduced by any party
by photographic, microfilm, microfiche or other reproduction process and the
originals thereof may be destroyed; and each party agrees that reproductions
will be admissible in evidence to the same extent as the original itself in and
judicial or administrative proceeding (whether or not the original is in
existence and whether or not reproduction was made in the regular course of
business), and further reproduction will likewise be admissible. The titles of
the several Articles and Sections are for convenience only, and shall not be
considered a part hereof. The submission of a form of this Lease or any
summary of its terms shall not constitute an offer by Landlord to Tenant; but
a leasehold shall only be created and the parties bound when this Lease is
executed and delivered by both Landlord and Tenant.
8.6 Successors and Assigns. Except as herein provided otherwise, the
agreements and conditions in this Lease contained on the part of Landlord to be
performed and observed shall be binding upon Landlord and its legal
representatives, successors and assigns, and shall inure to the benefit of
Tenant and its legal representatives, successors and assigns; and the
agreements and conditions on the part of Tenant to be performed and observed
shall be binding upon Tenant (and any guarantor of Tenant) and Tenant's legal
representatives, successors and assigns and shall inure to the benefit of
Landlord and its legal representatives, successors and assigns.
8.7 Relationship of the Parties. Nothing herein shall be construed as
creating the relationship between Landlord and ▇▇▇▇▇▇ of principal and agent, or
of partners or joint venturers; it being understood and agreed that neither the
manner of fixing rent, nor any other provision of this Lease, nor any act of the
parties, shall ever be deemed to create any relationship between them other
than the relationship of landlord and tenant.
8.8 Estoppel Certificate. Within one week of either party's request, Landlord
and Tenant agree, in favor of the other, to execute, acknowledge and deliver
a statement in writing certifying that this Lease is unmodified and in full
force and effect (or, if there have been any modifications that the same is in
full force and effect as modified and stating the modifications), and the amount
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and dates to which the Annual Base Rent (and additional rent and all other
charges) have been paid and any other information reasonably requested,
including without limitation Landlord's designation of the Purchase Lot under
Section 2.6. Both parties intend and agree that any such statement may be
relied upon by any prospective purchaser, mortgagee, or other person to whom the
same is delivered. Tenant acknowledges that prompt execution and delivery of
such statements, and all instruments referred to in Article X, constitute
essential requirements of any financings or sales by Landlord, and Tenant will
indemnify Landlord in the manner elsewhere provided against all costs and
damages (including consequential damages directly or indirectly resulting from
▇▇▇▇▇▇'s failure to comply herewith (notwithstanding any grace period) or
Landlord's right to execute the same on ▇▇▇▇▇▇'s behalf.
8.9 Notice of Lease. Neither party shall record this Lease, but each party
will, upon request of the other, execute a recordable notice of lease in a form
reasonably approved by ▇▇▇▇▇▇▇▇ and, upon termination for whatever reason, a
like notice of termination of lease; and Tenant irrevocably appoints Landlord
as its attorney-in-fact, with full power of substitution, to execute,
acknowledge and deliver a notice of termination of lease in Tenant's name, place
and stead if Tenant fails so to do with five (5) days of any request.
8.10 Construction on Adjacent Premises. Landlord shall have the right, in
connection with any development adjacent to the Building or elsewhere within the
Park, to grant easements through the Building and the appurtenant parking for
access and egress to and from such development and for the installation,
maintenance, repair, replacement or relocation of utilities serving such
development and/or the Premises and for the installation, removal, maintenance,
repair and replacement of windows and walkways related to such development.
Such right shall include the right to grant such easements through the
Premises, provided that installations, replacements or relocations of
utilities in the Premises shall, as far as practicable, be placed above ceiling
surfaces, below floor surfaces or within perimeter walls. Notwithstanding
anything herein to the contrary, this Lease shall be subject and subordinate to
any easements so granted. (Such subordination shall be self-operative, but in
confirmation thereof Tenant shall execute and deliver whatever instruments may
be required to acknowledge such subordination in recordable form, and if Tenant
fails to do so within 10 days after demand, Tenant hereby irrevocably appoints
Landlord as its attorney-in-fact to do so in Tenant's name.) Landlord and its
agents, employees, licensees and contractors shall also have the right during
any construction period for any such development to enter the Premises to
undertake work pursuant to any easement granted pursuant to the above paragraph;
to shore up the foundations and/or walls of the Premises and Building; to erect
scaffolding and protective barricades around the Premises or in other
locations within or adjacent to the Building; and to do any other act necessary
for the safety of the Premises or Building or the expeditious completion of such
construction. Landlord shall not be liable to Tenant for any compensation or
reduction of rent by reason of inconvenience or annoyance or for loss of
business resulting from any act by Landlord pursuant to this Section unless
resulting from a breach of the provisions of this Section 8.10. Landlord
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shall give Tenant reasonable advance notice of any work pursuant to this
Section in or about the Premises and Landlord shall use reasonable efforts so
as not to interfere unreasonably with the conduct of ▇▇▇▇▇▇'s business and to
minimize the extent and duration of any inconvenience, annoyance or disturbance
to Tenant resulting from such work, consistent with accepted construction
practice. It is not intended that the exercise of such rights will result in
any substantial permanent reduction in the floor area of the Premises, but if
any act by Landlord pursuant to this Section results in a permanent reduction
in the floor area of the Premises, Tenant shall be entitled to a proportional
abatement of Annual Base Rent and additional rent. Landlord shall give Tenant
reasonable advance notice of the construction in the Park of any new buildings
or any addition to an existing building to be undertaken by Landlord or an
affiliate of Landlord. Notwithstanding anything to the contrary in this
Section 8.10 or elsewhere in this Lease, neither Landlord nor any affiliate of
Landlord nor any successor in title shall construct any new building or any
addition to an existing building in the area between the Building and Lake
Quannapowitt.
8.11 Tenant as Business Entity. If Tenant is a business entity, then Tenant
warrants and represents that (a) Tenant is duly organized, validly existing and
in good standing under the laws of the jurisdiction in which such entity was
organized; (b) Tenant has the authority to own its property and to carry on its
business as contemplated under this Lease; (c) Tenant is in compliance with all
laws and orders of public authorities applicable to Tenant; (d) Tenant has duly
executed and delivered this Lease; (e) the execution, delivery and performance
by Tenant of this Lease (i) are within the powers of Tenant, (ii) have been
duly authorized by all requisite action, (iii) will not violate any provision
of law or any order of any court or agency of government, or any agreement or
other instrument to which Tenant is a party or by which it or any of its
property is bound, or (iv) will not result in the imposition of any lien or
charge on any of Tenant's property, except by the provisions of this Lease;
and (f) the Lease is a valid and binding obligation of Tenant in accordance
with its terms.
ARTICLE IX
9.1 Brokers. Tenant and Landlord each represent and warrant to the other that
it has not dealt with any broker (other than Landlord's Agent and the persons
identified as the Broker in Section 1.1) in connection with this Lease or the
Premises and each agrees to indemnify and save harmless the other from all
loss, claim, damage, cost or expense (including reasonable attorneys' fees)
arising from any breach of this representation and warranty. This warranty
and representation shall survive the Term or any early termination of this
Lease. The fees of Landlord's Agent and any Broker named in Section 1.1
will be paid by Landlord.
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ARTICLE X
Landlord's Financing
10.1 Subordination and Superiority of Lease. ▇▇▇▇▇▇ agrees that this Lease
and the rights of Tenant hereunder will be subject and subordinate to the
present or future lien of any first mortgage, (and at Landlord's election, to
the lien of any subordinate mortgage or mortgages) and to the rights of any
lessor under any ground or improvements lease of the Premises (collectively
referred to in this Lease as a "mortgage" and the holder or lessor thereof
from time to time as a "mortgagee"), and to all advances and interest thereunder
and all modifications, renewals, extensions and consolidations thereof; provided
however, that with respect to future liens, the mortgagee of any mortgage
hereafter granted executes and delivers to Tenant an agreement in which the
mortgagee agrees that Tenant shall not be disturbed in its possession upon
▇▇▇▇▇▇'s attornment to such mortgagee as Landlord and performance of its Lease
covenants (both of which conditions ▇▇▇▇▇▇ agrees with all mortgagees to
perform). Landlord shall use reasonable efforts to obtain such a nondisturbance
agreement from the present mortgagee of the Building. ▇▇▇▇▇▇ agrees that any
mortgagee may at its option unilaterally elect to subordinate, in whole or in
part and by instrument in form and substance satisfactory to such mortgagee
alone, the lien of its mortgage (or the priority of its ground lease) to some
or all provisions of this Lease.
Tenant agrees that this Lease shall survive the merger of estates of ground (or
improvements) lessor and lessee. Until a mortgagee (either superior or
subordinate to this Lease) forecloses Landlord's equity of redemption (or
terminates in the case of a ground or improvements lease), no mortgagee shall
be liable for failure to perform any of Landlord's obligations (and such
mortgagee shall thereafter be liable only after it succeeds to and holds
Landlord's interest and then only as limited herein). No mortgagee shall be
bound by any payment of rent more than one month in advance. Tenant shall, if
requested by ▇▇▇▇▇▇▇▇ or any mortgagee, give notice of any alleged non-
performance on the part of Landlord to any such mortgagee; and ▇▇▇▇▇▇ agrees
that such mortgagee shall have a separate, consecutive reasonable cure period
of no less than 30 days (to be reasonably extended in the same manner ▇▇▇▇▇▇▇▇'s
30 day cure period is to be extended) following Landlord's cure period during
which such mortgagee may, but need not, cure any non-performance by ▇▇▇▇▇▇▇▇.
The agreements in this Lease with respect to the rights and powers of a
mortgagee constitute a continuing offer to any person which may be accepted by
taking a mortgage (or entering into a ground or improvements lease) of the
Premises.
10.2 Rent Assignment. If from time to time Landlord assigns this Lease or the
rents payable hereunder to any person as collateral security for a loan,
whether such assignment is conditional in nature or otherwise, such assignment
shall not be deemed an assumption by the assignee of any obligations of
Landlord; but the assignee shall be responsible only for non-performance of
Landlord's obligations which occur after it succeeds to and only while it
holds ▇▇▇▇▇▇▇▇'s interest in the Premises.
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10.3 Other Instruments. The provisions of this Article shall be self-
operative; nevertheless, ▇▇▇▇▇▇ agrees to execute, acknowledge and deliver any
subordination, attornment or priority agreements or other instruments conforming
to the provisions of this Article (and being otherwise commercially reasonable)
from time to time requested by Landlord or any mortgagee in furtherance of the
foregoing, and further agrees that its failure to do so within 10 days after
written demand shall be subject to the monetary default provisions of this
Lease.
WITNESS the execution hereof under seal as of the date first set forth above.
TENANT: BOSTON TECHNOLOGY, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
LANDLORD: WBAM LIMITED PARTNERSHIP
By: WBAM, Inc., its sole general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
__________________________________
Vice President
By: __________________________________
Assistant Treasurer
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Appendix A1
Description of Premises
Lot 6 as shown on that certain plan of land entitled "Plan of Land in Wakefield,
MA (Middlesex County), being a subdivision of Lot 4 on LC Plan 25969-C",
prepared by ▇▇▇▇▇ and ▇▇▇▇▇▇, Inc. and dated April 9, 1996 (attached hereto
as Appendix A2).
Appendix A2
(attached)
Appendix A3
Description of Purchase Lot
Lot 5 as shown on that certain plan of land entitled "Plan of Land in Wakefield,
MA (Middlesex County), being a subdivision of Lot 4 on LC Plan 25969-C",
prepared by ▇▇▇▇▇ and ▇▇▇▇▇▇, Inc. and dated April 9, 1996 (attached hereto as
Appendix A2).
Appendix B
Cleaning Specifications
GENERAL CLEANING SERVICES (throughout the Premises, including office, assembly
and testing areas, conference rooms and cafeteria corridors)
NIGHTLY OFFICES (Monday through Friday, inclusive, Holidays excepted)
1. Empty and damp clean ashtrays
2. Empty waste baskets and remove trash
3. Vacuum all carpeting
4. Spot clean doors, walls and light switches, entrance door and glass
WEEKLY OFFICES
1. Dust and wipe clean all office furniture, woodwork and basewalls
2. Vacuum all carpet edges
MONTHLY OFFICE
1. Dust all window blinds
2. Dust tops of all files
3. Dust all ceiling diffusers
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NIGHTLY LAVATORIES
1. Wash toilet seats, bowls, urinals and basins with approved germicidal
detergent
2. Sweep and wash floor with approved germicidal detergent
3. Clean all mirrors, shelves and bright work, etc. including flushometer and
receptacles
4. Spot clean doors, partitions and walls
5. Dust window ▇▇▇▇▇
6. Remove wastepaper
7. Refill tissue holders, soap dispensers and towel dispensers
*SUPPLIES TO BE FURNISHED BY OWNER
MONTHLY LAVATORIES
1. Wash all partitions and walls
2. Clean all exhaust fan grills
QUARTERLY LAVATORIES
1. Machine scrub all flooring
NIGHTLY STAIRWELL AND CORRIDORS
1. Vacuum all carpeting
2. Sweep and damp mop all flooring
3. Dust all railings, edges and window ▇▇▇▇▇
4. Empty and clean all ashtrays
5. Spot wash all walls
6. Wash basement stairs and corridor
WEEKLY STAIRWELL AND CORRIDORS
1. Wash all stairs
2. Corner vacuum all carpeting
NIGHTLY LOBBY
1. Vacuum all carpet
2. Vacuum at all entrance doors
3. Wet mop rear entrance lobby floor
4. Empty and clean ashtrays
5. Spot clean walls and base
6. Clean all entrance glass and doors
7. Sweep all entrance steps
WEEKLY LOBBY
1. Dust directory and plaques
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NIGHTLY ELEVATORS AND ESCALATORS
1. Vacuum carpets
2. Clean walls
3. Clean stainless steel in and outside of elevators with approved cleaner
4. Remove trash from ceiling grill
WEEKLY ELEVATORS
1. Vacuum all elevator tracks
2. Dust ceiling fans
MONTHLY ELEVATORS
1. Dust ceiling grills
SNOW REMOVAL
1. After a 2" snowfall, the snow will be removed from walkways, driveways,
parking areas and steps.
2. In cases of ice storms or other icy conditions, sand or other de-icing
material shall be applied as necessary to walkways, driveways, parking areas
and steps.
BI-YEARLY
1. Windows will be cleaned twice a year.
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APPENDIX C
Landlord's Work
C1. Improvement Plans. The Design Documents listed in Schedule 1 to this
Appendix C describe the improvements which Landlord will cause to be constructed
as Landlord's Work. Landlord will, at ▇▇▇▇▇▇▇▇'s cost, cause an architect or
engineer to prepare further drawings and specifications based upon the Design
Documents. As prints of any such drawings and specifications are available
they will be provided to Tenant for its approval, which shall not be
unreasonably withheld or delayed so long as the successive drawings and
specifications are based upon and elaborate concepts set forth in previously
approved drawings and specifications (including the Design Documents). If
Tenant does not disapprove any submission based on the foregoing standard
within two business days following receipt, in each case notifying Landlord in
reasonable detail of the respects in which the drawings and specifications are
disapproved (and the modifications which if made would result in approval), then
the submission in question shall be deemed to be approved. Landlord may make
changes in approved drawings and specifications so long as the same are
based upon and elaborate concepts set forth in drawings and specifications
previously approved at an earlier stage in development of the design; all such
material changes shall be subject to approval in the above manner by ▇▇▇▇▇▇.
(Landlord may also make changes during the course of construction by issuing
so-called change orders without such approval so long as no change order
materially alters the scope of work set forth in previously approved drawings
and specifications; and if the scope of work is materially altered then the
change order shall be subject to Tenant's approval in the above manner). The
approved plans and specifications existing from time to time including all
changes are referred to as the "Improvement Plans".
C2. Tenant Space Change Orders and Finish Work. In accordance with
reasonable procedures established by ▇▇▇▇▇▇▇▇, through timely written requests
to Landlord ("Tenant Space Change Orders") and at Tenant's cost, Tenant may
request that Landlord cause the contractor to perform additional work ("Tenant
Change Work"). In no event shall such Tenant Space Change Orders include (nor
will Landlord be obliged to request that its contractor perform) work not
customarily performed by Massachusetts construction trades, items in the nature
of furniture, trade or business fixtures, equipment or decorations, work which
is incompatible with the design, quality equipment or systems shown on the
Improvement Plans, or work which would delay the orderly or efficient
construction of Landlord's Work or prevent Landlord from complying with the
terms of any mortgage, code or law. In all events Tenant shall be solely
responsible for paying such contractor all costs thereof; and Tenant will
indemnify and hold Landlord harmless in the manner elsewhere provided in the
Lease from any cost or liability on account of Tenant Change Work.
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C3. Punchlist Procedure. On or before the actual date of substantial
completion (as specified by prior notice from Landlord to Tenant), or the date
Tenant occupies all or any part of the Premises for its business if earlier,
Tenant shall cause its representative to be present with a representative of
Landlord and Landlord's contractor to walk the Premises for the purpose of
arriving at the final punchlist. ▇▇▇▇▇▇▇▇ shall prepare a draft punchlist,
noting any items contested by ▇▇▇▇▇▇, for ▇▇▇▇▇▇'s approval (including deemed
approval) in same manner as provided above with respect to approval of drawings
and specifications ("Final Punchlist"). Items shall not be added to the Final
Punchlist by Tenant after it is approved by ▇▇▇▇▇▇. With respect to items on
the Final Punchlist not in dispute, Landlord shall cause its contractor to
complete such items in a diligent manner during regular business hours, but in
a manner which will seek to minimize interference with ▇▇▇▇▇▇'s use.
C4. Landscaping. Landlord will, at ▇▇▇▇▇▇▇▇'s cost, landscape the grounds
of the Premises in a manner comparable to and consistent with the current
landscaping on the developed portion of the Park.
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