Exhibit 10.16
1/4/00
LEASE
By and Between
0000 XXXXXXX XXXXXX REALTY TRUST
Landlord
and
BIOSPHERE, INC.
Tenant
0000 XXXXXXX XXXXXX
XXXXXXXX, XXXXXXXXXXXXX
REFERENCE DATA
As used in this Lease, the following terms shall have the respective meaning set
forth below except when and to the extent reference is made to particular
Sections of the Lease:
Date of Lease: January 7, 2000
Landlord: Xxxxxx X. Xxxxxx and Xxxx X. Xxxxx, Xx., Trustees of 0000
Xxxxxxx Xxxxxx Realty Trust
Landlord's Address: 00 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000.
Tenant: BioSphere, Inc., a Delaware corporation.
Tenant's Address: 000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000
Property: Landlord's land and improvements thereon known as 0000
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000.
Building: The three-story building located on the Property.
Leased Premises: A portion of the first (1st) floor of the Building as
shown on Exhibit A.
Rentable Square
Footage of the Leased
Premises: 7,797 square feet to be certified by Landlord's
Architect.
Total Rentable
Square Footage of the
Building: 39,771 square feet.
Use of Leased
Premises: Administrative offices for a medical device company and
ancillary uses related thereto including research and
development and light manufacturing to the extent
described in Exhibit D attached hereto and incorporated
herein, provided that such research and development
involve no hazardous materials, solid waste, noise or
fumes beyond the Leased Premises or any impact on the
Building, its operations or the operations of other
tenants in the Building.
Lease Term: Five (5) years.
Specified Commencement
Date: March 15, 2000.
Landlord's Initials________ Tenant's Initials_________
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Commencement Date: The Specified Commencement Date or such other date as
determined in accordance with the terms of Section 3.
Base Rent: Lease Annual Monthly
Year Base Rent Installment
----- --------- -----------
1 - 3 $155,940.00 $12,995.00
4 & 5 $161,787.75 $13,482.31
Lease Security: An irrevocable letter of credit (the "Letter of Credit")
or cash Security Deposit of $140,000, to be reduced as
scheduled below, subject to Section 4.
Lease Year Amount
---------- ------
1 $140,000
2 115,500
3 92,400
4 64,400
5 33,600
Base Operating Costs: Operating costs for the calendar year 2000, grossed up to
reflect 100% occupancy for a full calendar year.
Base Taxes: Taxes for the fiscal year ended June 30, 1999.
Electricity: $6,627.45 per year or $552.29 per month.
Tenant's Proportionate
Share: 19.605%
Broker: Xxxxxxxx & Grew, Incorporated.
Insurance: $1,000,000/$3,000,000 per occurrence public liability;
$1,000,000 per occurrence property damage.
Personal Property insurance for all risks to full
insurable value of personalty in the Leased Premises.
Landlord's Initial
Construction: Landlord shall provide a buildout subject to the
conditions of Schedule A and Tenant Construction
Contribution of up to $31,188 toward the cost of design
and construction of Landlord's Initial Construction to
the extent such cost exceeds $140,346.
Landlord's Initials________ Tenant's Initials_________
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TABLE OF CONTENTS
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Page
----
1. Leased Premises.............................1
2. Use.........................................1
3. Lease Term..................................2
4. Base Rent, Security Deposit.................2
5. Operating Cost Escalation...................3
6. Tax Escalation..............................5
7. Building and Equipment......................7
8. Property of Tenant..........................8
9. Services....................................8
10. Removal of Goods and Tenant's Repairs.......9
11. Improvements, Alterations and Ownership.....9
12. Inspection.................................11
13. Casualty...................................11
14. Condemnation - Eminent Domain..............13
15. Indemnification............................14
16. Liability Insurance........................15
17. Damage to Property of Tenant...............15
18. Injury and Damage..........................15
19. Waiver of Subrogation......................15
20. Assignment, Mortgaging and Subletting......16
21. Signs and Drapes...........................18
22. Landlord's Insurance.......................18
23. Inflammables, Odors........................18
24. Default....................................18
25. Subordination..............................20
26. Holdover...................................21
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TABLE OF CONTENTS
-----------------
Page
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27. Notices....................................21
28. Rules and Regulations......................22
29. Quiet Enjoyment............................22
30. Disputes; Landlord's Reasonableness;
Arbitration................................22
31. Seisin.....................................22
32. Binding Agreement..........................22
33. Notice of Lease............................23
34. Landlord's Right to Cure...................23
35. Hazardous Materials........................23
36. First Offer for Basement Space.............23
37. General Provisions.........................24
Exhibit A1 - Lease Plan
Exhibit A2 - Site Plan
Exhibit B - Rules and Regulations
Exhibit C - Cleaning Specifications
Exhibit D - Clarification of Light Manufacturing Use
Schedule A - Landlord's Initial Construction
Schedule B - Building Standard
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This Lease is made and entered into as of the Date of Lease by and between
Landlord and Tenant (both defined in the Reference Data section) on the
following terms and conditions which the Landlord and Tenant covenant and agree
to keep and perform.
l. Leased Premises. In consideration of the rents and covenants herein
stipulated to be paid and performed by Tenant and upon the terms and conditions
herein specified, Landlord hereby leases to Tenant, and Tenant hereby hires and
takes from Landlord, the Leased Premises (as defined in the Reference Data
section) as indicated by outlining and diagonal marking on the plan labeled
Exhibit A1 which is attached hereto and incorporated herein, excluding elevator
shafts, stairs and other common elements of the Building, on the terms
hereinafter stated, which Leased Premises are hereby agreed to contain the
Rentable Square Footage of the Leased Premises (as defined in the Reference Data
section). The Tenant shall have the right to use in common with others the
elevators, stairs and entrances and exits of the Building and the grounds of the
Property, including the walkways and parking areas as shown in Exhibit A2. At
the present time there are approximately 250 parking spaces. Landlord shall
maintain available for use of Tenants in the Building and their visitors, a
minimum of four (4) parking spaces per 1,000 r.s.f. of total office and basement
area (49,208 r.s.f.) except for reasonable interruption for repairs or
improvements of the parking lot. Landlord reserves the right, on reasonable
notice and at no additional capital cost to Tenant, to change the traffic
patterns on the Property, including without limitation the access to and egress
from the Property, if Landlord reasonably determines that such change will
improve traffic conditions on the Property or adjacent roads.
2. Use. Tenant may use the Leased Premises only for the Use of Leased Premises
(defined in the Reference Data section). Such use and occupation shall at all
times be in compliance with the ordinances of the Town of Rockland, the laws of
The Commonwealth of Massachusetts and the United States of America and any
regulations under any thereof. Tenant shall not use, permit or suffer anything
to be done in the Leased Premises or anything to be brought into or kept in the
Leased Premises, in either case, which occasions undue hazard, discomfort or
annoyance to any other tenants or occupants of the Building, or which in
Landlord's reasonable judgment may tend to impair the reputation or appearance
of the Building and tend to interfere with the proper and economic operation of
the Building by Landlord. Tenant agrees that, except as set forth in the
following sentence for "Kitchen Areas," it shall not use the Leased Premises or
any part thereof, or permit the Leased Premises or any part thereof to be used,
for the preparation or dispensing of food, whether by vending machines or
otherwise. Notwithstanding the preceding sentence of this Section, but subject
to the other terms and conditions of this Section and this Lease, Tenant may
install at its own expense so-called hot-cold water fountains, coffee makers,
beverage vending machines, microwave ovens, refrigerators and sinks ("Kitchen
Areas") for the heating and consumption of food on the Leased Premises by
Tenant's employees only, provided that no cooking, frying, etc. are carried on
in the Leased Premises to such extent as creates odors of any kind beyond the
Kitchen Areas or requires special exhaust venting, and provided further that the
installation and operation of such Kitchen Areas shall not result in any
increase in Landlord's insurance premiums or costs unless such increase is fully
paid for, in advance, by Tenant. Tenant hereby acknowledges that the Building is
not engineered to provide any such special venting.
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3. Lease Term. Subject to the terms, covenants, agreements and conditions
contained herein, Tenant shall have and hold the Leased Premises for the Lease
Term (defined in the Reference Data section), commencing on the Commencement
Date and terminating on the last day of the month in which the date immediately
preceding the applicable anniversary of the "Commencement Date" shall occur (the
"Expiration Date"), unless sooner terminated pursuant to any of the terms and
conditions of this Lease or pursuant to law. The "Commencement Date" shall be
the later to occur of (i) the Specified Commencement Date (defined in the
Reference Data section) or (ii) the date on which Landlord's Initial
Construction (defined in Section 11(a)) is Substantially Complete (as defined in
Schedule A), and in any event on the date on which Tenant occupies any portion
of the Leased Premises for its business purposes, which shall not include entry
for purposes of preparing the Leased Premises for occupancy. In the event
Landlord fails to deliver the Leased Premises to Tenant with the Landlord's
Initial Construction Substantially Completed on or prior to June 24, 2000 then
Tenant may cancel this Lease, without further liability of Tenant to Landlord
upon seven (7) days written notice from Tenant to Landlord; provided however,
that if, within two (2) business days after receipt of such notice, Landlord
provides evidence reasonably satisfactory to Tenant that the Leased Premises
shall be available for occupancy in accordance with this Lease prior to July 15,
2000, then Tenant agrees to revoke such termination as long as the Leased
Premises are so delivered.
After the beginning of the Lease Term, Landlord and Tenant shall, upon the
request of either, execute a letter agreement or other acknowledgment specifying
the dates on which the Lease Term begins and ends.
4. Base Rent; Security Deposit:
(a) Tenant covenants to pay to Landlord during and through the Lease Term,
inclusive, annual "Base Rent" equal to the amounts specified in the
Reference Data section.
Such annual rent is payable in equal monthly installments, in advance, on
the first day of every calendar month during the Lease Term hereof, and a
proportionate part of such monthly installment is payable for any fraction
of a calendar month occurring at the beginning or end of the Lease Term
(such annual rent is hereinafter called the "Base Rent"). Tenant will pay
the Base Rent without notice, demand or deduction, except as specified
above, to the Landlord at Landlord's Address (defined in the Reference
Data section), or at such other place as is designated from time to time
by notice from Landlord to Tenant.
(b) Upon execution of this lease, Tenant shall pay to Landlord a security
deposit, the "Security Deposit", (or in lieu thereof, a letter of credit
as provided below) specified in the Reference Data section as "Lease
Security", which shall be held as security for the Tenant's performance as
herein provided and refunded to the Tenant at the end of this Lease,
subject to Tenant's satisfactory compliance with the conditions hereof.
The Security Deposit shall be kept in a separate interest bearing bank
account subject to withdrawal by Landlord under the terms and conditions
provided below. Provided Tenant is not in default hereunder, Landlord
shall pay any interest accrued and posted to the account to Tenant on or
before July 31 and December 31 of each calendar year during the Lease
Term. Tenant shall be responsible for all taxes, fees, charges or other
expenses associated with such account. At Tenant's option, on
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one occasion during the Lease Term, Tenant may substitute for the Security
Deposit a letter of credit (the "Letter of Credit"). Such Letter of Credit
shall be irrevocable and issued by a banking institution and in a form
reasonably acceptable to Landlord. If the Letter of Credit is issued for a
term shorter than the remainder of the Lease Term, Tenant shall provide
Landlord with a renewal Letter of Credit no later than thirty (30) days
prior to the expiration of such Letter of Credit. If all or any part of
the Lease Security shall be applied to any obligation of Tenant under the
Lease, Tenant shall immediately upon request by Landlord restore the Lease
Security to it's original amount. Provided Tenant has not been in default
of any of the terms of this Lease prior to or at the time of any scheduled
reduction, the amount of the Lease Security shall be reduced on the first
day after the Lease Year specified to the amount specified in the
Reference Data section. Tenant shall not have the right to call upon
Landlord to apply all or any part of the Lease Security to cure any
default or fulfill any obligation of Tenant, and such use shall be solely
in the description of Landlord.
5. Operating Cost Escalation. As used in this Section 5, these words and terms
shall have the following meanings:
(a) "Operating Costs" shall mean all costs incurred and expenditures made
by the Landlord in the operation and management of the Building and the
Property, exclusive of financing expenses and real estate taxes, as
determined in accordance with generally accepted accounting principles.
Operating Costs include, without limitation, costs of janitorial service,
heating, electricity and air-conditioning (except to the extent payable
directly by Tenant as set forth in Section 9 below); maintenance and
repairs to the Building (except for the obligations of Tenant within the
Leased Premises) and the Building HVAC systems and equipment, supplies,
maintenance of the parking areas and grounds, snow removal, management
fees, wages, salaries, benefits, payroll taxes and unemployment
compensation insurance for employees of Landlord, and all the costs for
the cleaning, operation, maintenance or security of the Property;
insurance relating to the Property; legal fees related to the management
of tenants and operation of the Property (except for the negotiation of
Leases and otherwise to the extent such legal fees are charged to
individual tenants) payments other than Taxes (as hereinafter defined) to
the Town of Rockland including, but not limited to, water and sewer
charges; amortization of capital expenditures, including the cost of money
connected therewith, which result in reduction of the increase or rate of
increase in operating expenses; and all other expenses customarily
incurred in connection with the operation of first class office buildings.
Operating costs shall not include:
1) cost of alterations of Tenant space;
2) depreciation, interest and principal payments on mortgages, and other debt
costs; if any;
3) real estate broker's leasing and brokerage commissions or compensations
and advertising and other marketing expenses;
4) costs of special services provided to some; but not substantially all of
the tenants of the Building;
5) rental under any ground or underlying lease or leases;
6) wages, salaries or other compensation paid to employees above the level of
Building Manager;
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7) any expenditures of which Landlord has been or will be reimbursed (other
than pursuant to rent adjustment, escalation or general expense
reimbursement in leases), including insurance and condemnation proceeds,
services contracts and warranties;
8) the cost of correcting defects in the construction of the Building (latent
or otherwise), provided that the foregoing shall not exclude the costs of
normal repair, maintenance and replacement;
9) any compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord; if any;
10) accounting fees to the extent not specifically related to the operation of
the Building;
11) any fees and expenses paid to an agent, contractor or manager which is
related to Landlord to the extent such fees or expenses are in excess of
the customary market amounts which would be paid in the absence of such
relationship;
12) expenses for repairs or the work occasioned by condemnation or by a
casualty except amount below the deductible of any insurance policy
carried by Landlord on the Building, provided such deductible does not
exceed $10,000;
13) fines and penalties for violation of governmental laws, regulatory orders
or conditions;
14) environmental compliance or remediation to the extent considered
acceptable cost under GAAP;
15) capital expenditures, except as specified above; and
16) reserves for future capital expenditures.
If the Building shall not have been fully occupied during any portion of a
year for which Operating Costs are being computed, Operating Costs for
such year or portion thereof shall be reasonably projected by Landlord to
the estimated Operating Costs that would have been incurred if the
Building had been fully occupied for such year, and such projected amount
shall be deemed to be the Operating Costs for such year.
(b) "Operating Escalation Statement" shall mean a statement in writing
signed by Landlord, setting forth the amounts payable by Tenant for a
specified computation year pursuant to this Section.
(c) "Tenant's Proportionate Share" shall mean that percentage defined in
the Reference Data section which is a fraction, the numerator of which is
the Rentable Square Footage of the Leased Premises and the denominator of
which is the Total Rentable Square footage of the Building (both as
defined in the Reference Data section).
Operating Costs Excess: If in any calendar year occurring during the Lease
Term, the Operating Costs for such year exceed the Base Operating Costs
(as defined in the Reference Data section), the Tenant shall pay to the
Landlord as additional rent an amount (hereinafter called the "Operating
Costs Excess") equal to the Tenant's Proportionate Share of any such
excess. Beginning with the first installment of Base Rent, and continuing
thereafter during the Lease Term, Tenant shall pay to Landlord on the
first day of each calendar month one-twelfth (1/12) of the sum equal to
Landlord's reasonable estimate of Operating Costs Excess for such calendar
year, and such payments shall be credited to the Operating Costs Excess,
if any, payable for the current calendar year. After the end of each
calendar year, Landlord shall give
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to Tenant the Operating Escalation Statement which shall show the actual
Operating Costs Excess together with the total of estimated payments
applied. Any balance due Landlord shall be payable by Tenant thirty (30)
days following receipt by Tenant of the Operating Cost Escalation
Statement, with any excess estimated payments credited by Landlord to
Tenant against the Rent next due hereunder, provided that any excess
credit shall be repaid to Tenant within ninety (90) days following the end
of the calendar year in which occurs the expiration of the Lease Term,
subject to set off against sums due from Tenant to Landlord.
Part Years: If this Lease shall commence or terminate in the middle of a
computation year, Tenant shall be liable for only that portion of the
Operating Costs Excess in respect of such computation year represented by
a fraction the numerator of which is the number of days of the Lease Term
which falls within the computation year and the denominator of which is
three hundred sixty-five (365).
Data: Upon request made within thirty (30) days of receipt of any
Operating Escalation Statement, Landlord shall promptly provide to Tenant
reasonable data to permit Tenant to verify the Operating Costs contained
therein, but Tenant may not dispute any such element of cost or expenses
not objected to within thirty (30) days of receipt of such data. Any
obligation of Tenant under this Section 5 which shall not have been paid
at the expiration of the Lease Term shall survive such expiration and
shall be paid when and as the amount of same shall be determined together
with interest thereon at the Lease Interest Rate (defined in Section 24)
from the date the Operating Cost Excess was first due to Landlord.
6. Tax Escalation: As used in this Section 6, these words and terms shall have
the following meanings:
(a) "Taxes" shall mean all real estate tax payments to the Town of
Rockland or payments in lieu of thereof, all taxes, assessments and
betterments levied, assessed or imposed by any governmental authority upon
or against the Building and the Property or payments in lieu thereof, but
excluding water and sewer charges. If, at any time during the Lease Term,
any tax or excise on rents or other taxes, however described, are levied
or assessed against Landlord with respect to the rent reserved hereunder,
either wholly or partially in substitution for, or in addition to, real
estate taxes assessed or levied on the Property, or payments in lieu
thereof, such tax or excise on rents shall be included in Taxes; however,
Taxes shall not include franchise, estate, inheritance, succession,
capital levy, transfer, income or excess profits taxes assessed on
Landlord.
(b) "Tax Escalation Statement" shall mean a statement in writing signed by
Landlord, setting forth the amounts payable by Tenant for a specified
computation year pursuant to this Section.
Tax Excess: If in any real estate tax fiscal year occurring during the
Lease Term, the Taxes for such year exceed the Base Taxes (as defined in
the Reference Data section), the Tenant shall pay to the Landlord as
additional rent an amount (hereinafter called the "Tax Excess") equal to
the Tenant's Proportionate Share of any such excess. Beginning with the
first installment of Base Rent, and continuing thereafter during the Lease
Term, Tenant shall pay to Landlord
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on the first day of each calendar month one-twelfth (1/12) of the sum
equal to Landlord's reasonable estimate of the Tax Excess for such fiscal
year, and such payments shall be credited to the Tax Excess, if any,
payable for the applicable fiscal year. Such estimated payments shall be
timed so that Landlord has the amounts available on the due dates for tax
bills in the Town of Rockland. During the fiscal year, Landlord shall give
to Tenant Tax Escalation Statement(s) based upon tax bills received from
time to time from the Town of Rockland, showing the Tax Excess together
with the total of estimated payments applied. Any balance due Landlord
shall be payable by Tenant thirty (30) days following receipt by Tenant of
each Tax Escalation Statement. Any excess estimated payments shall be
carried to the credit of Tenant until the issuance of the last such Tax
Escalation Statement for each fiscal year and if the statement indicates
an overpayment, it shall be credited by Landlord to Tenant against the
Rent next due hereunder, provided that any excess credit shall be repaid
to Tenant within thirty (30) days following the end of the fiscal year in
which occurs the expiration of the Lease Term, subject to set off against
sums due from Tenant to Landlord.
Part Years: If this Lease shall commence or terminate in the middle of a
computation year Tenant shall be liable for only that portion of the Tax
Excess in respect of such computation year represented by a fraction the
numerator of which is the number of days of the herein Lease Term which
falls within the computation year and the denominator of which is
three-hundred sixty-five (365).
Refunds: If, after Tenant shall have made any payment of Tax Excess to
Landlord pursuant to this Section, Landlord shall receive a refund of
taxes paid during or with respect to any real estate tax fiscal year
during the Lease Term hereof as a result of abatement of such Taxes by
legal proceedings, settlement or otherwise (without either party having an
obligation to undertake any such proceedings), Landlord shall pay or
credit to Tenant, Tenant's Proportionate Share of the refund (less the
proportional, pro rata expenses, including administrative costs, attorneys
fees and appraisers fees, incurred in connection with obtaining any such
refund), as relates to Taxes paid by Tenant to Landlord with respect to
any such fiscal year for which a refund is obtained. Tenant shall have no
right to seek or to control any abatement, dispute, or other proceedings
with the Town of Rockland or any other governmental agency or entity in
connection with the Property.
Data: Landlord shall promptly provide to Tenant, upon request made within
thirty (30) days of receipt of any Tax Escalation Statement, reasonable
data to permit Tenant to verify the Taxes contained therein, but Tenant
may not dispute any such element of cost or expenses not objected to
within sixty (60) days of receipt of such Tax Escalation Statement. Any
obligation under this Section of the Tenant which shall not have been paid
at the expiration of the Lease Term shall survive such expiration and
shall be paid when and as the amount of same shall be determined together
with interest thereon at the Lease Interest Rate from the date the Tax
Excess was first due to Landlord.
The additional rent required to be paid by Tenant pursuant to this
Section, together with the Base Rent and the additional rent required to
be paid by Tenant pursuant to this Lease, is hereinafter collectively
called the "Rent."
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7. Building and Equipment: Unless any such damage or violation is caused by
Landlord or its employees or agents, Tenant shall maintain the Leased Premises
and will make all changes and repairs required to keep the Leased Premises in
good repair and condition and in compliance with all applicable laws, orders,
rules or regulations of any governmental agency having jurisdiction including,
without limitation, repairs to doors, locks, hardware, carpets, walls, ceilings,
electrical and lighting fixtures, fixtures and glass in the Leased Premises.
Tenant shall maintain Kitchen Areas and all similar areas in a clean and
sanitary condition free of all vermin, wash any dishes and perform any cleaning
necessary to maintain Kitchen Areas or any other areas in the Leased Premises in
which beverages or foods may be prepared, dispensed or consumed. Tenant shall be
responsible for any damage to the Leased Premises arising out of frozen
sprinkler system pipes caused by Tenant's failure to keep windows in the Leased
Premises closed during cold weather. Landlord shall keep in serviceable
condition and repair the structure and exterior of the Building and the
plumbing, electrical and service lines furnished by Landlord, unless any such
need for repair shall be caused by the negligence or misconduct of Tenant or any
party acting under Tenant. Landlord shall comply with applicable governmental
rules, regulations, laws and ordinances affecting the Building, unless the
violation is caused by Tenant or Tenant's use of the Leased Premises or Tenant's
neglect in connection therewith. The Landlord shall keep the grounds, parking
areas, walkways, common corridors, stairways, elevators and all other public
portions of the Building and Property in serviceable repair and in a reasonably
clean and safe condition, such repair and condition to be to the equivalent
standard prevalent in other office buildings on the South Shore of similar age,
location and condition. Tenant, at its own expense, shall supply all light bulbs
and ballasts having energy efficient characteristics and otherwise reasonably
acceptable to Landlord, tubes or similar devices for lighting the Leased
Premises and Landlord may (but shall be under no obligation to do so) offer to
supply such devices for a fee to be established by Landlord, in its sole
discretion, and to be paid by Tenant to Landlord in addition to any other
payments pursuant to the terms of this Lease. Landlord reserves the right to
interrupt, curtail, stop and suspend the furnishing of any services and the
operation of the plumbing, electrical, heating, ventilation and air-conditioning
systems when necessary by reason of accident or emergency or for repairs,
alterations, replacements or improvements which may become necessary in the
reasonable judgment of Landlord or when Landlord cannot secure supplies or
labor, or by reason of any other cause beyond its control, without liability or
any abatement of rent being due thereby.
Notwithstanding the foregoing or any other provision of the Lease, however,
Tenant shall not be responsible for compliance with any such laws, regulations,
or the like requiring (i) structural repairs or modifications or (ii) repairs or
modifications to the utility or building service equipment or (iii) installation
of new building service equipment, such as fire detection or suppressions
equipment, unless such repairs, modifications, or installations shall be due to
Tenant's particular manner of use of the Leased Premises (as opposed to office
use and research and development generally).
Notwithstanding the above, Landlord shall make reasonable, good faith efforts to
avoid the interruption of any services which it is obligated to provide. Tenant
shall be entitled to an abatement of Rent for interruption of services only to
the extent covered by Landlord's interruption insurance. Tenant shall cooperate
with Landlord by giving Landlord prompt written notice of the need for any
repairs to equipment which Landlord is responsible for or of any interruption in
Building services
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for which Landlord is responsible.
In the event of any emergency situation involving an actual risk to human life
or public safety which would otherwise be the responsibility of Tenant, Landlord
shall have the right, but shall not be required, to pay such sums or to do any
act which is necessary to xxxxx said emergency on a temporary basis. If, and in
the event of, the exercise of such right Landlord incurs costs which are the
responsibility of the Tenant under this Lease, Tenant shall promptly reimburse
Landlord upon receipt of actual proof of the costs incurred.
8. Property of Tenant: Tenant shall not place a load upon any floor of the
Leased Premises which exceeds the floor load per square foot of area which such
floor was designed to carry or which is allowed by law. Business machines and
mechanical equipment and Tenant's other personal property shall be placed and
maintained by Tenant at its expense in settings sufficient to absorb and prevent
vibration, noise and annoyance. Tenant covenants and agrees that all of Tenant's
property of every kind, nature and description which may be in or upon the
Leased Premises or Building, in the public corridors, or on the sidewalks,
areaways and approaches adjacent thereto, during the Lease Term hereof, and any
movement of such property shall be at the sole risk and hazard of Tenant, and
Tenant hereby indemnifies and agrees to save Landlord harmless from and against
any liability, loss, injury, claim or suit resulting directly or indirectly
therefrom.
9. Services:
(a) Except if such is interrupted for reasons beyond Landlord's control or
must be stopped for necessary repairs in the reasonable judgment of the
Landlord, the Landlord shall provide:
1. Access to the Building to duly authorized employees of Tenant 24
hours per day, seven days per week by means of an access control
system.
2. Necessary elevator facilities.
3. Heat and air conditioning to the Leased Premises without
additional charge during regular business hours (from 8:00 a.m. to
6:00 p.m. Monday through Friday and 9:00 a.m. to 1:00 p.m. on
Saturday, except customary holidays, as designated by the Landlord).
By reasonable advance arrangement with the Building's manager, heat
or cooling can be furnished at other times at an hourly rate to be
established by Landlord, in its reasonable discretion, and to be
paid by the Tenant to Landlord in addition to any other payments
pursuant to this Lease.
4. Cleaning of the Leased Premises and the lobby, elevators, public
corridors, washrooms, and stairs which Tenant has the right to use
in common with others, all in accordance with the Cleaning
Specifications attached to this Lease as Exhibit C and made a part
hereof.
5. Normal lighting of the main lobby, elevators, washrooms and
stairs, but not for the Leased Premises.
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6. Shoveling of snow and sanding of ice in the parking areas and on
walkways on the Property in a manner provided by comparable office
buildings in the vicinity.
(b) Electricity, for all uses within the Leased Premises except general
heating and air conditioning referred to in subparagraph 3 above, is to be
paid for by Tenant. Since electricity is not presently metered to the
Leased Premises, it is agreed that a fixed amount as specified as Cost of
Electricity in the Reference Data Section shall be paid by Tenant for
electricity in addition to the Rent. Landlord may at its cost install a
utility meter. Tenant shall thereafter pay the billing authority all bills
for electricity, and this obligation to pay the Cost of Electricity shall
cease. Upon request of the Landlord, the Tenant shall promptly furnish to
the Landlord evidence of such payment.
10. Removal of Goods and Tenant's Repairs. At the expiration of the Lease Term,
the Tenant shall remove its goods and effects (except as elsewhere provided
herein) and will peaceably yield up to Landlord the Leased Premises in as good
order and condition as when delivered to it, excepting ordinary wear and tear,
repairs required to be made by Landlord and damage by fire or casualty or taking
by eminent domain.
Tenant shall be responsible for all damage or injury to the Leased Premises,
fixtures, appurtenances and equipment of Landlord, or to the Building, caused by
Tenant's installation or removal of furniture, fixtures or equipment.
11. Improvements, Alterations and Ownership.
(a) Landlord's Initial Construction. Landlord agrees to perform work and
make installations in the Leased Premises as set forth in Schedule A. Such
work and installations are referred to as "Landlord's Initial
Construction." All of the terms, covenants and conditions of Schedule A.
are incorporated in this Lease by reference and shall be deemed a part of
this Lease as though fully set forth in the body of this Lease.
(b) Alterations. Other than Landlord's Initial Construction, Tenant shall
not make or perform, or permit the making or performance of, any
alterations, installations, decorations, improvements, additional or other
physical changes in or about the Leased Premises (referred to collectively
as "Alterations" without Landlord's prior consent, which consent shall not
be unreasonably withheld, conditioned or delayed. Notwithstanding the
foregoing provisions of this Section or Landlord's consent to any
Alterations, all Alterations shall be made and performed in conformity
with and subject to the following provisions: All Alterations shall be
made and performed at Tenant's sole cost and expense and at such time and
in such manner as Landlord may, from time to time, reasonably designate;
all Alterations shall, when completed, be of such a character as not to
materially reduce the economic value of the Building below its value
immediately before such Alterations; no Alterations shall diminish or
reduce the structural integrity of the Building; alterations shall be made
only by contractors or mechanics approved by Landlord, such approval not
unreasonably to be withheld; no Alteration shall affect any part of the
Building other than the Leased Premises or adversely
9
affect any service required to be furnished by Landlord to Tenant or to
any other tenant or occupant of the Building or reduce the value or
utility of the Building; no Alteration shall affect the outside appearance
of the Building; no Alteration shall affect the color or style of any
Venetian blinds (except that Tenant may remove any Venetian blinds
provided that they are promptly replaced by Tenant with building standard
blinds or blinds substantially identical to building standards); all
business machines and mechanical equipment shall be placed and maintained
by Tenant in settings sufficient, in Landlord's reasonable judgment, to
absorb and prevent vibration, noise and annoyance to other tenants or
occupants of the Building; Tenant shall submit to Landlord detailed plans
and specifications (including layout, architectural, mechanical and
structural drawings) for each proposed Alteration and shall not commence
any such Alteration without first obtaining Landlord's approval of such
plans and specifications; prior to the commencement of each Alteration,
Tenant shall have procured and paid for, and exhibited to Landlord, so far
as the same may be required from time to time, all permits and
authorizations of all municipal departments and governmental subdivisions
and authorities having or claiming jurisdiction; prior to the commencement
of each proposed Alteration, Tenant shall furnish to Landlord duplicate
original policies of workmen's compensation insurance or certificates
thereof reasonably satisfactory to Landlord covering all persons to be
employed in connection with such Alteration, including those to be
employed by all contractors and subcontractors, and of comprehensive
public liability insurance (including property damage coverage) in which
Landlord and its agents shall be named as parties insured, which policies
shall be issued by companies, and shall be in form and amounts, reasonably
satisfactory to Landlord and shall be maintained by Tenant until the
completion of such Alteration; no Alterations in or to the electrical
facilities in or serving the Leased Premises shall exceed the capacity of
the existing feeders or wiring installations then serving the Leased
Premises; electrical and air conditioning certificates, and all other
permits, approvals and certificates required by all governmental
authorities shall be timely obtained by Tenant and submitted to Landlord;
all Alterations, once commenced, shall be made promptly and in a good and
workmanlike manner; notwithstanding Landlord's approval of plans and
specifications for any Alteration, all Alterations shall be made and
performed in full compliance with all applicable laws, orders and
regulations (including, but not limited to, the energy conservation
provisions of the Massachusetts Building Code) of Federal, State, County
and Municipal authorities and with all directions of all public officers,
and with all applicable rules, orders, regulations and requirements of the
New England Fire Insurance Rating Organization or any similar body; all
Alterations shall be made and performed in accordance with the Rules and
Regulations; all materials and equipment to be installed, incorporated or
located in the Leased Premises as a result of any Alteration shall be new
and first quality; no such materials or equipment shall be subject to any
lien, encumbrance, chattel mortgage or title retention or security
agreement or any kind; Tenant, before commencement of such Alteration,
shall furnish to Landlord and its mortgagees a statutory xxxx xxxx and a
performance bond or other security reasonably satisfactory to Landlord and
such mortgagees in an amount at least equal to the estimated cost of such
Alteration; in the event Landlord or its agents employ any independent
architect or engineer to examine any plans or specifications submitted by
Tenant to Landlord in connection with any proposed Alteration, Tenant
agrees to pay to Landlord a sum equal to any reasonable fees incurred by
Landlord in connection therewith.
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(c) No Consent or Request of Landlord. Nothing in this Lease shall be
deemed or construed in any way as constituting the consent or request of
Landlord, express or implied, by inference or otherwise, to any
contractor, subcontractor, laborer or materialman, for the performance of
any labor or the furnishing of any material for any specific Alteration
to, or repair of, the Leased Premises, the Building, or any part of
either. Any mechanic's or other lien filed against the Leased Premises or
the Building or the Property for work claimed to have been done for, or
materials claimed to have been furnished to, Tenant, or based upon any act
or omission or alleged act or omissions of Tenant, shall be discharged by
Tenant, at Tenant's sole cost and expense, within ten (10) days after the
filing of such lien.
(d) Labor Conflict. Tenant shall not knowingly, at any time prior to or
during the Lease Term, directly or indirectly employ, or permit the
employment of, any contractor, mechanic or laborer in the Leased Premises,
whether in connection with any Alteration or otherwise, if such employment
will interfere or cause any conflict with other contractors, mechanics or
laborers engaged in the construction, maintenance or operation of the
Building by Landlord, Tenant or others. In the event of any such
interference or conflict, Tenant, upon request of demand of Landlord shall
cause all contractors, mechanics or laborers causing such interference or
conflict to leave the Building immediately.
(e) Ownership of Improvements. All appurtenances, fixtures, improvements,
additions and other property attached to or installed in the Leased
Premises, whether by Landlord or Tenant or others, and whether at
Landlord's expense, or Tenant's expense, or the joint expense of Landlord
or Tenant or others, shall be and remain the property of Landlord, except
that any such fixtures, improvements, additions and other property which
is (i) installed at the sole expense of Tenant with respect to which
Tenant has not been granted any credit or allowance by Landlord, whether
pursuant to Schedule A or otherwise, (ii) which are removable without
material damage to the said premises, and (iii) as to which Tenant shall
have given notice to Landlord requesting the identification of such
property without reasonable objection by Landlord, shall be and remain the
property of Tenant and are referred to as "Tenant's Personal Property".
Any replacements of any property of Landlord, whether made at Tenant's
expense or otherwise, shall be and remain the property of Landlord.
12. Inspection. The Landlord and its authorized representatives shall have the
right at all reasonable times to enter the Leased Premises for reasonable
business purposes including, without limitation, inspecting the same and to be
accompanied by representatives of mortgagees, insurers or similar persons, to
make repairs or replacements therein as required by this Lease, to introduce
conduits and pipes or ducts as may be necessary in Landlord's reasonable
judgment; and to exhibit the Leased Premises to prospective tenants or others,
provided, however, that the Landlord shall use reasonable efforts not to unduly
disturb Tenant's use and occupancy. Landlord shall not be liable to Tenant in
any manner for any expense, loss or damage occurring by reason of the aforesaid
entries, nor shall the exercise of any such right be deemed an eviction or
disturbance of Tenant's use or possession, unless caused by the negligence or
misconduct of Landlord, its agents or invitees.
13. Casualty. If the Leased Premises, but not including other improvements made
by Tenant within the Leased Premises (but including Landlord's Initial
Construction), or any part thereof shall
11
be damaged by fire or other casualty, Landlord shall proceed with reasonable
diligence, and at the expense of Landlord, to repair or cause to be repaired
such damage; provided, however, that Landlord's obligations with respect to
restoration shall not require Landlord to expend more than the net proceeds of
insurance recovered and available to Landlord. Landlord shall have no
responsibility for any repairs or damage to or replacements of, Tenant's
personal property and property which Tenant may be required to remove as
provided in this Lease. All such repairs and replacements shall be promptly made
by and at the expense of Tenant. If the Leased Premises, but not including the
Improvements within the Leased Premises, or any part thereof, shall have been
rendered unfit for use and occupation hereunder by reason of such damage for a
period of five (5) or more days, the Base Rent or a just and proportionate part
thereof, according to the nature and extent to which the Leased Premises shall
have been so rendered unfit, shall be suspended or abated retroactive to the
date on which such portion of the Leased Premises became unfit for occupancy,
until the Leased Premises (except as to the property which is to be repaired by
or at the expense of Tenant) shall have been restored as nearly as practicably
may be to the condition in which they were immediately prior to such fire or
other casualty. Within sixty (60) days of such damage, Landlord shall give
Tenant notice ("Landlord's Notice") in writing of its reasonable estimate of the
length of time it will take to restore such damage ("Estimated Time to Repair").
If the Estimated Time to Repair is one hundred eighty (180) days or less from
the date of casualty, Landlord shall proceed to make repairs. If Landlord fails
to substantially so restore (to a condition of Substantial Completion as defined
in Schedule A-1) the Leased Premises within one hundred eighty (180) days from
the date of such damage, (as such period may be extended on account of delays in
such completion which are beyond the reasonable control of Landlord), Tenant
may, if it has paid all sums then payable to Landlord, terminate this Lease by
notice to Landlord and this Lease shall terminate forty-five (45) days after
delivery of such notice fully as if such date were the original expiration date
of this Lease; provided, that if Landlord substantially restores the Leased
Premises within such forty-five (45) day period such termination shall be deemed
null and void and the Lease will continue as if such restoration occurred within
the one hundred eighty (180) day period. Landlord shall not be liable for delays
in the making of any such repairs which are due to governmental regulations,
casualties and strikes, unavailability of labor and materials, and other causes
beyond the control of Landlord, nor shall Landlord be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting from such delays in repairing such damage. If the Estimated Time to
Repair, as specified in Landlord's notice, exceeds one hundred eighty (180)
days, Tenant may terminate the Lease by giving written notice ("Tenant's
Notice") to Landlord within five (5) business days of its receipt of Landlord's
Notice specifying the Estimated Time to Repair, the effective date of such
termination to be thirty (30) days from the date of Tenant's Notice.
Notwithstanding the foregoing, if either (a) the Leased Premises shall be
damaged materially by any such fire or other casualty during the last year of
the Lease Term, or (b) all or any substantial part of the Leased Premises or the
Building is so damaged by such fire or other casualty that repair or
reconstruction (may reasonably be expected to take longer than one hundred eight
(180) days from the date of such casualty to complete (in the reasonable
judgment of Landlord) whether or not the Leased Premises shall have been damaged
by such fire or other casualty, then in either such case this Lease and the term
hereof may be terminated at the election of the Landlord by notice in writing of
its election so to terminate given within sixty (60) days of the occurrence of
such casualty, to be effective not less than thirty (30) days after the day on
which such termination notice is received. In the event of any such termination,
this Lease and the Lease Term hereof shall expire as of such effective
termination date
12
and the Base Rent and additional rent shall be apportioned as of such date; and
if the Leased Premises or any part thereof shall have been rendered unfit for
use and occupation by reason of such damage the Base Rent for the period from
the date of the fire or other casualty to the effective termination date, or a
just and proportionate part thereof, according to the nature and extent to which
the Leased Premises shall have been so rendered unfit, shall be abated.
14. Condemnation - Eminent Domain.
(a) In the event that the Leased Premises or any substantial part thereof,
or the whole or any substantial part of the Building, or the access
thereto, shall be taken or appropriated by eminent domain or shall be
condemned for any public or quasi-public use, or (by virtue of any such
taking, appropriation or condemnation) shall suffer any damage (direct,
indirect or consequential) for which Landlord or Tenant shall be entitled
to compensation, then (and in any such event) this Lease and the Lease
Term hereof may be terminated at the election of Landlord by a notice in
writing of its election so to terminate which shall be given by Landlord
to Tenant within sixty (60) days following the date on which Landlord
shall have received notice of such taking, appropriation or condemnation.
If the entire Leased Premises or such portion thereof or the access
thereto shall be so taken, appropriated or condemned, such that Tenant
shall be precluded from effectively utilizing the Leased Premises in the
reasonable judgment of Landlord, then (and in any such event) this Lease
and the Lease Term hereof may be terminated at the election of Tenant by a
notice in writing of its election so to terminate which shall be given by
Tenant to Landlord within sixty (60) days following the date on which
Tenant shall have received notice of such taking, appropriation or
condemnation. Upon the giving of any such notice of termination (either by
Landlord or Tenant) this Lease and the Lease Term hereof shall terminate
on or retroactively as of the date on which Landlord or Tenant, as the
case may be, shall be required to vacate any portion of the area so taken,
appropriated or condemned or shall be deprived of the means of access
thereto, provided, however, that Landlord may in Landlord's notice of
termination elect to terminate this Lease and the Lease Term hereof
retroactively as of the date on which such taking, appropriation or
condemnation became legally effective. In the event of such termination
this Lease and the Lease Term hereof shall expire as of such effective
termination date and the Rent shall be apportioned as of such date.
(b) If neither party (having the right so to do) elect to terminate this
Lease and the Lease Term hereof, Landlord shall, with reasonable diligence
and at Landlord's expense, restore the remainder of the Leased Premises
(but not any of Tenant's Personal Property), or the remainder of the means
of access, as nearly as practicably may be to the condition prior to such
taking, appropriation or condemnation, in which event the Rent shall be
adjusted in a manner such that (i) a just proportion of the Base Rent and
additional rent, according to the nature and extent of the taking,
appropriation or condemnation and the resulting permanent injury to the
Leased Premises and the means of access thereto, shall be permanently
abated and (ii) a just proportion of the remainder of the Base Rent and
additional rent, according to the nature and extent of the taking,
appropriation or condemnation and the resultant injury sustained to the
Leased Premises and the means of access thereto, shall be abated until
what remains of the Leased Premises (other than any property to Tenant)
and the means of access thereto shall have been
13
restored for permanent use and occupation by Tenant hereunder. Landlord
shall not be liable for any delays in such restoration which are due to
governmental regulations, casualties, strikes, unavailability of labor or
materials, or other causes beyond Landlord's control nor shall Landlord be
liable for any inconvenience or annoyance to Tenant or injury to the
business of Tenant resulting from such delays in such restoration.
Landlord expressly reserves and Tenant hereby assigns to Landlord all
rights to compensation and damages created, accrued or accruing by reason
of any such taking, appropriation or condemnation, but not including
relocation assistance payments by a governmental agency or entity for
which Tenant may be eligible.
(c) If the Leased Premises or any part thereof or the access thereto shall
be taken, appropriated or condemned for any temporary use (i) this Lease
shall be and remain unaffected thereby and Tenant shall continue to pay
the full amount of the Rent hereunder, (ii) Tenant shall be entitled to
receive for itself any award made for such use allocable to the Lease
Term, and (iii) Tenant shall be responsible for any repairs necessary to
restore the Leased Premises to their condition prior to such taking,
appropriation or condemnation, provided that if any such taking,
appropriation or condemnation extends beyond the Lease Term, the costs of
such repairs shall be allocated between Landlord and Tenant in proportion
to the amount of any award each receives. Any taking, appropriation or
condemnation continuing in excess of one year shall be deemed to be a
permanent taking, appropriation or condemnation and shall be governed by
paragraph (a) and (b) above.
15. Indemnification. Tenant hereby indemnifies and covenants to save Landlord
harmless from and against any and all claims, liabilities or penalties asserted
by or on behalf of any person, firm corporation, public authority or other
entity:
(a) On account of or based upon any injury to person, or loss of or damage
to property, sustained or occurring on the Leased Premises on account of
or based upon the act, omission, fault, negligence or misconduct of any
person other than Landlord or its servants, agents or employees;
(b) On account of or based upon any injury to person, or loss of or damage
to property, sustained or occurring in or about the Property and other
than on the Leased Premises (and, in particular, without limiting the
generality of the foregoing, on or about the elevators, stairways, public
corridors, sidewalks, concourses, arcades, approaches, areaways, roof or
other appurtenances and facilities used in connection with the Building or
the Leased Premises) arising out of the use or occupancy of the Building
or the Leased Premises by the Tenant or by any person claiming by, through
or under Tenant, and caused by the act, omission, fault, negligence or
misconduct of any person other than Landlord or its servants, agents or
employees, and in addition to and not in limitation of the foregoing
subdivision (a);
(c) On account of or based upon (including monies due on account of) any
work or thing whatsoever done (other than by Landlord or its contractors,
or agents or employees of either) on the Leased Premises during the Lease
Term and during the period of time, if any, prior to the Commencement Date
when Tenant may have been given access to the Leased Premises;
14
and
(d) In respect of any of the foregoing, from and against all costs,
expenses (including, without limitation, reasonable attorneys' fees) and
liabilities incurred in or in connection with any such claim, or any
action or proceeding brought thereon; and in case any action or proceeding
be brought against Landlord by reason of any such claim, Tenant upon
notice from Landlord shall at Tenant's expense resist or defend such
action or proceeding and employ counsel therefor reasonably satisfactory
to Landlord, it being agreed that such counsel as may act for insurance
underwriters of Tenant engaged in such defense shall be deemed
satisfactory.
16. Liability Insurance. Tenant agrees to maintain public liability insurance
and property damage liability insurance in the amounts set forth in the
Reference Data section and to submit and maintain copies of such policies with
the Landlord. The insurers under such policies shall be reasonably satisfactory
to Landlord and such policies shall name as insured parties Landlord, Tenant and
any Mortgagee of which Tenant has received notice or otherwise has actual
knowledge, as their interest may appear, and shall provide twenty (20) days
prior written notice to Landlord or any such Mortgagee of lapse or cancellation.
17. Damage to Property of Tenant. In addition to and not in limitation of the
foregoing, Tenant covenants and agrees that all Tenant's furniture, fixtures and
property of every kind, nature and description which may be in or upon the
Leased Premises or Building, in the public corridors, or on the sidewalks,
areaways and approaches adjacent thereto, during the term hereof, shall be at
the sole risk and hazard of Tenant, and that if the whole or any part thereof
shall be damaged, destroyed, stolen or removed for any cause or reason
whatsoever no part of said damage or loss shall be charged to, or borne by
Landlord. Tenant agrees to maintain all risk insurance on the full insurable
value of all personalty located on the Leased Premises and to submit and
maintain copies of such policies with Landlord.
18. Injury and Damage. Landlord shall not be liable for any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, electrical disturbance, water, rain or snow or leaks from any part
of the Building or from the pipes, appliances or plumbing works or from the
roof, street or subsurface or from any other place or by dampness or by any
other cause of whatever nature, unless caused by or due to the act, omission,
fault, negligence or misconduct of Landlord, or its agents, servants or
employees; nor shall Landlord or its agents be liable for any such damage caused
by other tenants or persons in the Building or caused by operations in
construction of any private, public or quasi-public work; nor shall Landlord be
liable for any latent defect in the Leased Premises or in the Building.
19. Waiver of Subrogation / Landlord's Insurance.
(a) Tenant and Landlord covenant that with respect to any property
insurance coverage carried by either Tenant or Landlord in connection with
the Leased Premises or the Building whether or not such insurance is
required by the terms of this Lease, such insurance shall provide for the
waiver by the insurance carrier of any subrogation rights against
Landlord, its agents, servants and employees under Tenant's insurance
policies or against Tenant, its agents,
15
servants, and employees under Landlord's insurance policies, where such
waiver of subrogation rights does not require the payment of an additional
premium or, if an additional premium is required to be paid, the other
party offers to pay such premium after being notified of such additional
premium.
(b) Notwithstanding any other provision of this Lease, (i) Landlord shall
not be liable to Tenant for any loss or damage, whether or not such loss
or damage is caused by the negligence of Landlord, its agents, servants or
employees, to the extent that such loss or damage is covered by valid and
enforceable insurance carried by Tenant; and (ii) Tenant shall not be
liable to Landlord for any loss or damage, whether or not such loss or
damage is caused by the negligence of Tenant or its agents, servants or
employees, to the extent that such loss or damage is covered by valid and
enforceable insurance carried by Landlord.
(c) Landlord shall procure and keep in force "all risk" property insurance
on the Building with terms and coverage required by any institutional
mortgagee of the Building or, if there exists no such mortgagee, as
reasonably determined by Landlord to be consistent with similar policies
customary for first class buildings in the Greater Boston marketplace.
20. Assignment, Mortgaging and Subletting.
(a) Tenant covenants and agrees that neither this Lease nor the Lease Term
and estate hereby granted, nor any interest herein or therein, will be
assigned, mortgaged, pledged, encumbered or otherwise transferred, and
that neither the Leased Premises, nor any part thereof, will be encumbered
in any manner by reason of any act or omission of Tenant, or used or
occupied, or permitted to be used or occupied, by anyone other than
Tenant, its servants, agents and employees, or for any use or purpose
other than as above stated, or be sublet, or offered, or advertised for
subletting, without in each case, Landlord's prior written consent.
Landlord may refuse to consider a request for such consent and may
withhold such consent unless Tenant shall have agreed to reimburse
Landlord promptly for reasonable expenses, including legal expenses,
incurred by Landlord in connection with such request. If Tenant shall
propose any subletting of more than half of the Leased Premises or any
assignment of this Lease, Landlord shall have the option of terminating
this Lease by giving notice thereof to Tenant.
Any assignment of this Lease made hereunder shall be upon the express
condition that the assignee and Tenant shall promptly execute, acknowledge
and deliver to Landlord an agreement in form and substance satisfactory to
Landlord whereby assignee shall agree to be personally bound by the terms,
covenants, and conditions of this Lease on Tenant's part to be performed
and whereby assignee shall expressly agree that the provisions of this
Section shall, notwithstanding such assignment or transfer, continue to be
binding upon it with respect to all future assignments and transfer. Any
sublease of the Leased Premises or any part thereof shall be expressly
subject to the terms of this Lease and shall contain the agreement of the
subtenant thereunder that, upon Landlord's written request, it will pay
all rents under the sublease directly to Landlord. If, pursuant to the
provisions of this Section, Tenant sublets the Leased Premises or any part
thereof, Tenant shall pay to Landlord as additional rent at the times and
in the manner specified by Landlord, an amount equal to the difference
between all amounts
16
which Tenant receives from a subtenant by virtue of such subletting (less
the amortization of reasonable costs incurred by Tenant in direct
connection with such subletting) and the total of the Rent due under this
Lease for the sublet area proportioned on a square foot basis; provided
said difference is greater than zero. No such assignment or subletting of
the Leased Premises by Tenant shall relieve Tenant from the observance or
performance of any of the terms, covenants and conditions of this Lease.
(b) If this Lease be assigned, or if the Leased Premises or any part
thereof be sublet or occupied by anybody other than Tenant and its
employees, Landlord, after default by Tenant hereunder, may collect the
rents from such assignee, subtenant or occupant, as the case may be, and
apply the net amount collected to the Rent herein reserved, but no such
assignment, subletting, occupancy or collection shall be deemed a waiver
of the requirements set forth in subparagraph (a) of this Section, the
acceptance by Landlord of such assignee, subtenant or occupant, as the
case may be, as a tenant, or a release by Tenant of its covenants,
agreements and obligations contained in this Lease. The consent by
Landlord to an assignment or subletting shall not in any way be construed
to relieve Tenant from obtaining the express consent in writing of
Landlord to any further assignment or subletting. No assignment,
subletting or use of the Leased Premises shall affect the purpose for
which the Leased Premises may be used as stated in Section 2.
(c) Notwithstanding the foregoing, Tenant may assign this Lease or
sublease any portion of the Leased Premises to any entity which is a
parent or subsidiary corporation of Tenant or to any entity with which
Tenant may merge or consolidate or to which Tenant may sell all of
substantially all of its assets as a going concern in exchange for
assumption of all or substantially all of its liabilities (any of the
foregoing entities being hereinafter referred to as a "Successor") but
only if such Successor is of comparable character, quality and financial
capacity as Tenant as of the date thereof, in Landlord's judgment;
provided that simultaneously with any such assignment, Tenant shall
deliver to Landlord an agreement in form and substance reasonably
satisfactory to Landlord which contains an appropriate covenant of
assumption by such assignee, and provided further that in the case of any
such assignment or sublease to a Successor, Tenant shall have submitted to
Landlord prior thereof financial information reasonably satisfactory to
Landlord evidencing that such Successor has at least an equivalent net
worth and other financial resources as Tenant and a general business
reputation comparable to or superior to that of Tenant.
(d) The listing of any name other than that of Tenant, whether on the
doors or the Leased Premises or on the Building directory, or otherwise,
shall not operate to vest any right or interest in this Lease or in the
Leased Premises or be deemed to be the written consent of Landlord
mentioned in this Section, it being expressly understood that any such
listing is a privilege extended by Landlord revocable at will by written
notice to Tenant.
(e) Tenant further covenants and agrees that it will not sublease space
from or take an assignment of a lease covering space in the Building from
any other Building tenant, without Landlord's prior written consent.
17
(f) Subject to the foregoing provisions of this Section, including,
without limitation, Landlord's right to terminate this Lease in accordance
with paragraph (a) above, Landlord agrees to not unreasonably withhold its
consent to a subletting of all or a portion of the Leased Premises,
provided that the Landlord shall determine, in its reasonable discretion,
that (i) the prospective subtenant or assignee has personal references and
the financial capacity to meet all of the obligations of this Lease and to
carry out its business in a manner consistent with the level of Landlord's
operation of the Building, (ii) the use of the Leased Premises under such
sublease or assignment shall be for a first-class office use which is
consistent with the mix of tenants in and the character of the Building,
(iii) such use shall not materially burden the common areas or operating
systems of the Building, and (iv) space reasonably comparable to that
proposed to be sublet is not available from Landlord in the Building.
21. Signs and Drapes. No signs may be put on or in any window by Tenant. Tenant
may hang its own drapes, provided that such drapes are of a neutral color and
are completely screened from view from the exterior of the Building at all times
by building standard Venetian blinds. Any signs or lettering in the public
corridors or on the doors must be submitted to Landlord and its architect for
written approval of the size, color, design and location of such signs or
lettering before installation. Any sign of Tenant in the Leased Premises or in
the Building must comply with any applicable sign ordinances, and may not
conflict with the terms restricting signs in any other lease of space in the
Building. Notwithstanding the foregoing, Landlord shall provide the initial
building standard signage in the lobby directory.
22. Landlord's Insurance. Tenant will not do or omit to do or keep anything in,
upon or about the Leased Premises, the Building or any adjacent areas which may
prevent the obtaining of any fire, liability or other insurance upon or written
in connection with the Leased Premises, the Building or such adjacent areas or
which may make any such insurance void or voidable or otherwise invalidate the
obligations of the insurer contained therein, or which may create any extra
premiums or increase the rate of any such insurance over that normally
applicable to office buildings. Tenant agrees to pay to Landlord, upon demand,
the amount of any extra premiums or any increase in the rate of such insurance
which results from the business carried on in the Leased Premises by Tenant,
whether or not Landlord has consented to such business. If Tenant installs any
electrical equipment that overloads the lines in the Leased Premises, Tenant
shall, at its expense, make whatever changes are necessary to comply with the
requirements of the insurance underwriter or governmental authorities having
jurisdiction, but such changes shall be made in accordance with the provisions
of Section 11.
23. Inflammables, Odors. Tenant shall not bring or permit to be brought into or
keep in or on the Leased Premises or elsewhere in the Building, any inflammable,
combustible or explosive fluid, material, chemical or substance, or cause or
permit any odors or cooking or other processes, or any unusual or other
objectionable odors to emanate from or permeate the Leased Premises, except as
used in the ordinary course of businesses customarily located in first class
office buildings.
24. Default. If the Tenant shall default in the payment of the Rent or any other
charges due hereunder; or if the Tenant shall default in the performance of any
other of its obligations and such default shall continue for ten (10) days after
written notice thereof by the Landlord to the Tenant (except that if the Tenant
cannot reasonably cure any such default within said ten (10) day period,
18
this period may be extended for a reasonable time not to exceed thirty (30)
days, provided that the Tenant commences to cure such default within the ten
(10) day period and proceeds diligently thereafter to effect such cure); or if
the Tenant shall file a petition under any bankruptcy, insolvency law or code,
or if such a petition is filed against Tenant and not dismissed within sixty
(60) days; or if the Tenant shall be adjudicated bankrupt or insolvent according
to law; or if the Tenant shall make any assignment for the benefit of creditors;
or if the Tenant shall file any petition seeking a reorganization, arrangement
or similar relief; or if a receiver, custodian, trustee or similar agent of the
Leased Premises or of all or a substantial part of Tenant's assets shall be
authorized or appointed and not removed within sixty (60) days in the case of an
involuntary appointment; or if Tenant's interest in this Lease is taken upon
execution or other process of law in any action against Tenant; then the
Landlord may lawfully enter the Leased Premises and repossess the same as the
former estate of the Landlord, or terminate this Lease by written notice to
Tenant and, in either event, expel the Tenant and those claiming through or
under the Tenant, and remove their effects (forcibly, if necessary but in
conformity with applicable laws), without being deemed guilty of any manner of
trespass and without prejudice to any other remedy which the Landlord may have
for arrears of Rent and other charges due hereunder or proceeding on account of
breach of covenant, and upon entry or notice as aforesaid, this Lease shall
terminate. The Tenant covenants, in case of any default by Tenant hereunder, to
pay the Landlord all actual and reasonable costs of enforcing its rights under
this Lease (including, without limitation, reasonable attorney's fees and
expenses), loss of rent, reletting expenses, and brokerage fees together with,
as agreed liquidated damages, either of the following options as selected by
Landlord: (i) the amount by which, at the termination of the Lease, the
aggregate of the Rent (including, without limitation, the Operating Costs Excess
and the Tax Excess payments projected on the basis of experience under this
Lease) and other sums payable hereunder projected over a period from such
termination until the normal expiration date of the Lease Term exceeds the
aggregate projected fair market rental value of the Leased Premises for such
period discounted at the then current rate for U.S. Treasury obligations with a
maturity coinciding as closely as possible with the end of the Lease Term, or
(ii) an amount equal to the Rent (including, without limitation, Operating Costs
Excess and Tax Excess payments projected on the basis of experience under this
Lease) and other sums which would have been payable had the Lease not so
terminated (subject to off-set for net rents actually received from reletting
after subtraction of the expenses of reletting), payable upon the due dates as
specified herein.
Landlord may bring legal proceedings for the recovery of such damages, or any
installments thereof, from time to time at its election, and nothing contained
herein shall be deemed to require Landlord to postpone suit until the date when
the Lease Term would have expired if it had not been terminated hereunder.
Nothing herein contained shall be construed as limiting or precluding the
recovery by Landlord from Tenant of any sums or damages (including, without
limitation, reasonable attorneys' fees and expenses) to which, in addition to
the damages particularly provided above, Landlord may lawfully be entitled by
reason of any default hereunder on the part of Tenant.
Landlord and Tenant agree that, for the purpose of computing liquidated damages,
the Tax Excess payments and the Operating Costs Excess payments for the period
between the termination of this Lease pursuant to this Section and the normal
expiration date shall be computed by multiplying both
19
the Tax Excess payment and the Operating Costs Excess payment for the year
immediately preceding the year in which termination occurs times the number of
years remaining in the full Lease Term hereby granted on the assumption that the
amount of such Tax Excess payment and Operating Costs Excess payment for the
immediately preceding year would have remained constant for each subsequent year
during the full Lease Term. If this Lease and the Lease Term hereof shall
terminate pursuant to this Section prior to the determination of the initial Tax
Excess payment or Operating Costs Excess payment, the Tax Excess payment and the
Operating Costs Excess payment shall be reasonably estimated by Landlord.
Payment of Base Rent, Additional Rent, any other payment due as Rent, Operating
Costs Excess, Tax Excess and any other obligations of Tenant which are not paid
on the date due plus the applicable grace period, if any, shall, at the option
of Landlord, bear interest at the rate equal to prime rate published in the Wall
Street Journal, plus five (5%) percent per annum, or such lesser rate as may be
the highest rate allowed by law (the "Lease Interest Rate") from the due date
and shall be compounded monthly). If Tenant shall fail to make any payment,
including, without limitation, electricity, telephone or other charges which
Tenant makes directly to a utility or other company when due, and such failure
shall threaten the continued provision of such service to the Leased Premises,
Landlord or other tenants in the Building, Landlord may make such payment on
Tenant's behalf, and such amount shall be due from Tenant as Rent with interest
at the Lease Interest Rate.
25. Subordination.
(a) This Lease and all rights of Tenant hereunder are, and shall remain
unconditionally subject and subordinate in all respects to all mortgages
which are or may hereafter be placed on or affect such Lease and/or the
Property of which the Leased Premises are a part, or any part of such real
property, and/or Landlord's interest or estate therein, and to each
advance made and/or hereafter to be made under any such mortgages, and to
all renewals, modifications, consolidations, replacements and extensions
thereof provided that the holder of record thereof enters into a written
agreement with Tenant binding upon the successors and assigns of the
parties thereto by the terms of which such holder will agree, (a) to
recognize the rights of Tenant under this Lease, (b) in the event of
acquisition of title by said holder through foreclosure proceedings or
otherwise, to perform Landlord's obligations hereunder arising after the
date of such holder's acquisition of title, and (c) to accept Tenant as
tenant of the Leased Premises under the terms and conditions of this
Lease, and Tenant agrees to recognize such holder or any other person
acquiring title to the Leased Premises as Landlord. This Section shall be
self-operative and no further instrument of subordination shall be
required. In confirmation of such subordination, Tenant shall execute and
deliver promptly any certificate acknowledging or confirming such
subordination that Landlord and/or any mortgagee and/or their respective
successors in interest may request.
(b) No act or failure to act on the part of Landlord which would entitle
Tenant under the terms of this Lease, or by law, to be relieved of
Tenant's obligations hereunder or to terminate this Lease shall result in
a release or termination of such obligations or a termination of this
Lease unless (i) Tenant shall have first given written notice of
Landlord's act or failure to act to the holder of any mortgages of whom
Tenant has been given written notice specifying the
20
act or failure to act on the part of Landlord which could or would give
basis to Tenant's rights; and (ii) the holder or holders of such
mortgages, after receipt of such notice, have failed or refused to correct
or cure the condition complained of within a reasonable time thereafter,
but nothing contained in this sentence shall be deemed to impose any
obligation on any such holders to correct or cure any such condition.
"Reasonable time" as used above means and includes a reasonable time to
obtain possession of the Building if any such holder elects to do so and a
reasonable time (not to exceed ninety (90) days) to correct or secure the
condition if such condition is determined to exist.
(c) From time to time, within ten (10) days next following Landlord's
request, Tenant shall deliver to Landlord a written statement executed and
acknowledged by Tenant, in form reasonably satisfactory to Landlord, (i)
stating that this Lease is then in full force and effect and has not been
modified (or, if modified, setting forth the specific nature of all
modifications), and (ii) setting forth the date to which the Base Rent has
been paid, and (iii) stating whether or not, to the best knowledge of
Tenant, Landlord is in default under this Lease, and, if Landlord is in
default, setting forth the specific nature of all such defaults. Tenant
acknowledges that any statement delivered pursuant to this paragraph may
be relied upon by any purchaser or owner of the Building, or the Property
or any part thereof, or Landlord's interest in the Building or the
Property or by an mortgagee, or by any assignee of any mortgagee.
(d) Tenant hereby agrees that this Lease shall be subject and subordinate
to all the terms, conditions and provisions of any Master Deed,
Declaration of Trust or By-Laws of any condominium regime created for the
Building and which includes the Leased Premises and Tenant shall execute
any reasonable instrument confirming said subordination and recognizing
and consenting to said condominium regime, provided that Tenant's rights
and obligations hereunder shall not be adversely affected thereby.
26. Holdover. If the Tenant remains in the Leased Premises beyond the expiration
or earlier termination of the Lease Term such holding over shall not be deemed
to create any tenancy, but the Tenant shall be a Tenant-at-Sufferance only and
shall pay rent to Landlord at the times and manner determined by Landlord at a
daily rate in an amount equal to two times the daily rate of the Rent and other
sums payable under this Lease as of the last day of the Lease Term.
27. Notices. Any notice or demand by Tenant to Landlord shall be served by hand
delivery, recognized overnight courier service, or registered or certified mail
addressed to the Landlord at the address above indicated, and until otherwise
directed in writing by the Landlord, and any notice or demand by Landlord to
Tenant shall be served by any of the same means addressed to Tenant at the
Leased Premises with a courtesy copy to Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx,
Xxxxxx, XX 00000, Attn: Xxxx Xxxxxxxxxx, Esq. (provided that the failure to
provide such copy shall not affect the effectiveness, enforceability or the
service of such notice) until otherwise directed in writing by Tenant. Any such
notice shall be deemed to have been given when it is received or on the date
that delivery is referred during normal business hours.
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28. Rules and Regulations. Tenant will faithfully observe and comply with the
Rules and Regulations annexed hereto as Exhibit B and such other and further
reasonable Rules and Regulations as Landlord hereafter at any time or from time
to time may make and may communicate in writing to Tenant, which in the judgment
of Landlord shall be necessary for the reputation, safety, care or appearance of
the Building, or the preservation of good order therein, or the operation or
maintenance of the Building, or any equipment relating thereto, or the comfort
of Tenant or others in the Building. If this Lease shall conflict with any such
Rules and Regulations, the provisions of this Lease shall control. Landlord
shall not have any duty or obligation to enforce the Rules and Regulations or
the terms, covenants or conditions in any other lease as against any other
tenant and Landlord shall not be liable to Tenant for violation of the same by
other tenants, their servants, employees, agents, visitors, invitees or
licensees.
29. Quiet Enjoyment. The Tenant shall upon paying the Rent reserved herewith and
performing all of the terms, covenants and condition on Tenant's part to be
observed and performed, peaceably and quietly have and hold the Leased Premises
without hindrance or molestation by any person or persons lawfully claiming by,
through or under Landlord, subject, however, to the terms of this lease.
30. Disputes; Landlord's Reasonableness; Arbitration. Notwithstanding any other
provisions hereof to the contrary, Tenant's sole remedy in any dispute with
respect to the reasonableness of any failure or refusal of Landlord to grant its
consent or approval to any request for such consent or approval pursuant to any
of the provisions of this Lease with respect to which Landlord has covenanted
not unreasonably to withhold such consent or approval, shall be an action for
specific performance. If the determination of any such proceedings shall be
adverse to Landlord, Landlord shall be deemed to have granted the requested
consent or approval, but that shall be Tenant's sole remedy in such event and
Landlord shall not be liable to Tenant for any damages or for a breach of
Landlord's covenant not unreasonably to withhold such consent or approval, or
otherwise. Any dispute which Landlord and Tenant shall agree to submit to
arbitration shall be finally determined by arbitration in accordance with the
rules and regulations then obtaining of the American Arbitration Association or
its successor. Any such determination shall be final and binding upon the
parties, whether or not a judgment shall be entered in any court. In making a
determination, the arbitrators shall not subtract from, add to, or otherwise
modify any of the provisions of this Lease.
Landlord and Tenant may, at their own expense, be represented by counsel and
employ expert witnesses in any such arbitration.
31. Seisin. In the event of a sale or other disposition of the Building and/or
Property by Landlord, Landlord shall be entirely freed and relieved from the
performance and observance thereafter of all covenants and obligations of
Landlord hereunder, provided that the Landlord's successor shall thereupon
assume and agree thereafter to perform and observe, any and all of such
covenants and obligations of Landlord.
32. Binding Agreement. This Lease shall bind and inure to the benefit of the
parties hereto and their respective heirs, representatives, successors or
assigns. This Lease contains the entire agreement of the parties and many not be
modified except by an instrument in writing.
22
33. Notice of Lease. Tenant agrees that it will not record this Lease. Landlord
and Tenant shall, upon request of either, execute and deliver a notice of this
Lease in such recordable form as may be permitted by applicable statute.
34. Landlord's Right to Cure. If Tenant shall default in the observance or
performance of any term, covenant or condition on its part to be observed or
performed under this Lease, Landlord, without being under any obligation to do
so and without waiving such default, may remedy such default for the account and
at the expense of Tenant, immediately and without notice in case of emergency,
or in any other case, if Tenant, shall fail to remedy such default with all
reasonable diligence within the time set forth under Section 24 and after
Landlord shall be notified Tenant of such default. If Landlord makes any
expenditures or incurs any obligations of the payment of money in connection
therewith, including, but not limited to, reasonable attorneys fees, such sums
paid or obligations incurred, with interest at the Lease Interest Rate, shall be
paid to Landlord by Tenant as Rent hereunder.
35. Hazardous Materials. Tenant agrees to properly handle, store, use and
dispose of all hazardous material, as may be defined by applicable law. Without
limiting the foregoing, Tenant shall not dispose of such material on or into any
property of Landlord, any sewage or drainage system, or any trash receptacle
provided by Landlord. Prior to storing, handling, using, or disposing of any
hazardous material on the Leased Premises or the Property of Landlord, Tenant
shall notify Landlord of such activity and provide all reasonable evidence that
such material shall be dealt with in accordance with the terms of this Lease.
Tenant shall indemnify and hold Landlord harmless from all claims, including
costs and attorneys' fees arising from Tenant's possession of such materials.
This provision shall survive termination of this Lease.
36. First Offer for Basement Space.
(a) Provided Tenant shall not be in default hereunder, then, if after the
initial leasing of the basement of the Building, all or a portion of the
basement becomes available for leasing and Tenant has notified Landlord
that it has a need for additional space, then Landlord shall give notice
of such availability to Tenant (the "Offer Notice") and Tenant shall have
the option, exercisable only by notice given to Landlord within fifteen
(15) days from the receipt of the Offer Notice and subject to the
provisions hereof, to lease and add to the Leased Premises the space which
is the subject of the proposal referred to in the Offer Notice, for a term
to commence on the date designated in such Notice and ending on the
Expiration Date (unless sooner terminated pursuant to this Lease or law),
in an "as-is" condition, at rent and other conditions as described in the
Offer Notice, and upon all the other then executory terms, covenants and
conditions contained in this Lease. The terms contained in the Offer
Notice shall be determined in good faith by the Landlord to reflect the
fair market value for the premises described therein. Tenant may only
exercise such option on all of the space so offered (the "Applicable Added
Space").
(b) No space shall be deemed to be "available for leasing" or otherwise
subject to the provisions of this Section if the tenant of such space or
any assignee or subtenant thereof enters into any agreement with Landlord
relating to such space. It is understood and agreed that time
23
is of the essence with respect to the exercise of any option set forth in
this Section.
(c) The lease term applicable to any space as to which Tenant can exercise
the option under this Section shall be for at least three (3) years.
Accordingly, the option set forth in this Section shall not be exercisable
if the proposed term applicable to any such space commences on a date
which is less than three (3) years prior to the Expiration Date then in
effect.
(d) With Tenant's notice, Tenant's shall provide Landlord with a complete
description of its proposed operation in the Applicable Added Space, and
if Landlord determines that such operation is not compatible and
consistent with: (i) the Use of the Leased Premises; (ii) Landlord's
operation of the Building; and (iii) other uses in the Building and the
tenant mix therein, it may revoke Tenants option and render it null and
void.
(e) On the effective commencement date of the term applicable to the
Applicable Added Space, this Lease shall be deemed modified as follows:
(i) The Leased Premises shall include the Applicable Added Space
(together with all appurtenances, fixtures, improvements, additions
and other property attached thereto or installed therein at the
commencement of the term applicable to the Applicable Added Space or
at any time during said term, other than Tenant's Personal Property)
for all purposes of this Lease;
(ii) The Base Rent shall be increased by the base rent set forth in
the proposal referred to in the Applicable Offer Notice with respect
to the Applicable Added Space.
(iii) Additional Rent shall include all other rent and charges
proposed in the Offer Notice.
(f) Upon request of Landlord, Tenant shall execute and deliver to Landlord
an instrument, in reasonably satisfactory form and suitable for recording,
stating that Tenant has not exercised an option which became available to
it pursuant to this Section to lease any Applicable Added Space, if that
be the case, or stating that Tenant has exercised such option, if that be
the case, and setting forth all of the modifications to the Lease
resulting from the application of the provisions of this Section,
including, but not limited to, the effective commencement date of the term
applicable to the Applicable Added Space. Neither Landlord's failure to
request that Tenant execute such instrument nor Tenant's failure to comply
with the provisions of this paragraph shall, however, vitiate the
provisions of this Section.
37. General Provisions.
(a) Except as provided in Section 30, the various rights and remedies
contained in this Lease and reserved to each of the parties shall not be
exclusive of any other right or remedy of such party, but shall be
construed as cumulative and shall be in addition to every other remedy now
or hereafter existing at law, in equity, or by statute. No delay or
omission of the right to exercise any power by either party shall impair
any such right or power or shall be construed
24
as a waiver of any default or as acquiescence in any default. One or more
waivers of any covenant, term or condition of this Lease by either party
shall not be construed by the other party as a waiver of a subsequent
breach of the same covenants, term or condition. The consent or approval
of either party to or of any act by the other party of a nature requiring
consent or approval shall not be deemed to waive or render unnecessary
consent to or approval of any subsequent similar act.
(b) Payments to Landlord under this Lease are rental for the use of the
Leased Premises, and nothing herein contained shall be deemed or construed
to make Landlord a partner or associate of Tenant in the conduct of any
business, nor as rendering Landlord liable for any debts, liabilities or
obligations incurred by Tenant in the conduct of any business it being
expressly agreed that the relationship between the parties is, and shall
at all times remain, that of Landlord and Tenant.
(c) All amounts payable by Tenant to Landlord under any provision of this
Lease, other than the Base Rent, shall be deemed to be additional rental
for the use of the Leased Premises, and Landlord shall have the same
remedies for the nonpayment of such amounts as for non-payment of other
rents.
(d) Where the words "Landlord" and "Tenant" are used in this Lease they
shall include Landlord and Tenant and shall apply to persons, both men and
women, associations, partnerships and corporations, and in reading this
Lease the necessary grammatical changes required to make the provisions
hereof mean and apply to them shall be made in the same manner as if
written into the Lease.
(e) Tenant hereby declares that in entering into this Lease, Tenant relied
solely upon the statements contained in this Lease and Landlord and Tenant
both fully understand that no agents or representatives of either Landlord
or Tenant, respectively, have authority to in any manner change, add to or
detract from the terms of this Lease.
(f) The invalidity of one or more of the provisions of this Lease shall
not affect the remaining portions of this Lease; and, if any one or more
of the provisions of this Lease should be declared invalid by final order,
decree or judgment of a court of competent jurisdiction, this Lease shall
be construed as if such invalid provisions had not been included in this
Lease.
(g) Tenant hereby agrees for itself and each succeeding holder of the
Tenant's interest or any portion thereof under this Lease that any
judgment, decree or award obtained against the Landlord or any succeeding
owner of Landlord's interest which is in any manner related to this Lease,
the Leased Premises, or the Tenant's use and occupancy of the Leased
Premises or the Building of which the Leased Premises are a part, or the
land on which such Building is situated, whether at law or in equity,
shall be satisfied out of Landlord's Property to the extent then owned by
the Landlord and each such succeeding owner and further agrees to look
only to such assets and to no other assets of the Landlord or each
succeeding owner for satisfaction. Neither the Trustees executing this
Lease not any beneficiaries of such Trust nor any subsequent Landlord
shall have any personal liability hereunder.
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(h) Force Majeure: Whenever either party hereto is required to do or
complete any act, matter or thing, the time for doing or completion
thereof shall be extended by a period of time equal to the number of days
on or during which party is prevented from, or is unreasonably interfered
with, the doing or completion of such act, matter or thing because of
strikes, lock-outs, embargoes, unavailability of labor or materials, wars,
insurrections, rebellions, civil disorder, declaration of national
emergencies, acts of God, or other causes beyond such party's reasonably
control (financial inability excepted); provided, however, nothing
contained in this subsection shall excuse Tenant from the prompt payment
of any rental or other charge required of Tenant hereunder except as may
be expressly provided elsewhere in this Lease. Time is of the essence of
all forms and provisions of this Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease in triplicate,
the original as a sealed instrument, on the day and year first above written.
LANDLORD: TENANT:
0000 XXXXXXX XXXXXX REALTY TRUST BIOSPHERE, INC.
By:/s/ ILLEGIBLE By: /s/ Xxxx X. Xxxxxxxxx
----------------------------- ---------------------------------
Trustee and not individually
Xxxx X. Xxxxxxxxx, President & CEO
----------------------------------
Print Name and Title
Wpa:1050BioSpherelse5.doc
26
EXHIBIT A1
----------
LEASE PLAN
27
EXHIBIT A2
----------
SITE PLAN
28
EXHIBIT B
---------
0000 XXXXXXX XXXXXX
RULES AND REGULATIONS
1. The regular business hours for the Building shall be from 8:00 a.m. to
6:00 p.m. Monday through Friday and from 9:00 a.m. to 1:00 p.m. Saturday,
except customary holidays, as designated by Landlord. Landlord reserves
the right to exclude from the office portions of the Building, at all
times other than during such regular business hours, all persons who do
not present a building pass signed by Landlord. Landlord will furnish
passes for persons for whom any tenant requests such passes. Tenant shall
be responsible for all persons for whom it requests such passes and shall
be liable to Landlord for all wrongful acts of such persons.
2. The parking areas, driveways, walkways, entrances, passages, courts,
elevators, vestibules, stairways, corridors or halls of the Building shall
not be obstructed or encumbered or used for any purpose other than ingress
and egress to and from the premises demised to any tenant or occupant. All
loitering is strictly prohibited.
3. No awnings, antennae or other projections shall be attached to the outside
walls, windows or roof of the Building without the prior consent of
Landlord. No curtains, blinds, shades or screens shall be attached or hung
in, or used in connections with, any window or door of the Leased Premises
without the prior consent of Landlord. Such awnings, projections,
curtains, blinds, shades, screens, or other fixtures must be of a quality,
type, design and color, and attached in a manner, approved by Landlord.
4. No sign, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted or affixed on any part of the outside or
inside (if visible from outside) of the Leased Premises or of the Building
without the prior consent of Landlord. Interior signs on doors and
directory tables, if any, shall be of a size, color and style approved by
Landlord.
5. The sashes, sash doors, skylights, windows, transoms and doors that
reflect or admit light and air into the atrium, halls, passageways or
other public places in the Building shall not be covered or obstructed,
nor shall any bottles, parcels, or other articles be placed in any window
xxxxx.
6. No show cases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, nor placed in the halls, corridors,
vestibules or other parts of the Building except as expressly permitted in
writing by Landlord.
7. All waste, rubbish and refuse shall be kept in proper receptacles upon the
Leased Premises and nothing shall be thrown or swept into or upon the
corridors, passageways, stairways or other parts of the Building. The
water and wash closets and other plumbing fixtures shall not be used for
any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags or other substances shall be
thrown therein nor shall water be wasted
29
by improper use of faucets, sinks or toilets or otherwise. Tenant shall
not dispose of any hazardous or toxic materials or substances, as such
materials or substances may be defined in any applicable federal, state or
local statute, law, regulation, or ordinance, in or on the Leased
Premises, or the Building or any fixtures, plumbing or receptacles
therein. Tenant shall be responsible for any violation of this rule by
Tenant or Tenant's agents, clerks, invitees or employees.
8. Tenant shall not xxxx, paint, drill into, or in any way deface any part of
the Building or the Leased Premises. No boring, cutting or stringing of
wires shall be permitted, except with the prior consent of the Landlord,
and as Landlord may direct. Tenant shall not install any resilient tile or
similar floor covering in the Leased Premises except in manner approved by
Landlord.
9. No bicycles, vehicles or animals of any kind shall be brought into or kept
in or about the Leased Premises or the Building. Bicycles may be stored in
racks, if any, furnished for such purpose by Landlord in a common area of
the Property. No cooking shall be done or permitted in the Building by any
tenant without the approval of Landlord. Tenant shall not cause or permit
any unusual or objectionable odors to emanate from the Leased Premises.
10. Without the prior consent of Landlord, no space in the Building shall be
used for manufacturing except as specified herein, or for the sale of
merchandise, goods or property of any kind at auction, fire, bankruptcy,
going out of business or similar sale.
11. No additional locks, bolts or other closing or locking devices shall be
placed upon any of the doors, windows, transoms or other openings by
Tenant without written permission from the Landlord, and upon termination
of his leasehold, Tenant shall restore to the Landlord all keys to
offices, toilets or other rooms furnished to or otherwise procured by
Tenant. In the event of the loss of any keys furnished by Landlord, Tenant
shall pay to the Landlord the cost hereof.
12. All removals from the Building, or the carrying in or out of the Building
or the Leased Premises of any safes, freight, furniture, or bulky matter
of any description must take place at such time and in such manner as
Landlord or its agents may determine, from time to time. If any such
matter requires special handling, only a person holding a Master Rigger's
license or otherwise experienced and approved by all appropriate
authorities for such handling, shall be employed to perform such special
handling. Tenant shall not place, or permit to be placed, on any part of
the floor or floors of the Leased Premises a load exceeding the floor load
per square foot which such floor was designed to carry and which is
allowed by law. Landlord reserves the right to prescribe the weight and
position of safes and other heavy matter, which must be placed so as to
distribute the weight. Landlord reserves the right to inspect all freight
to be brought into the Building and to exclude from the Building all
freight which violates any of the Building Rules or the provisions of
Tenant's lease. Tenant shall pay for all damages caused by such moving.
13. Tenant shall not use or occupy, or permit any portion of the Leased
Premises to be used or occupied, as an office for a public stenographer or
typist, for a xxxxxx or manicure shop, or as an employment bureau. Tenant
shall not engage or pay any employees in the Building, except
30
actually working for Tenant in the Building, nor advertise for laborers
giving any address at the Building.
14. Tenant, before closing and leaving the Leased Premises at any time, shall
see that all entrances are locked.
15. Tenant shall, at its expense, provide artificial light in the Leased
Premises for Landlord's agents, contractors, and employees while
performing janitorial or other cleaning services and making repairs or
alterations in said premises.
16. The Leased Premises shall not be used, or permitted to be used, for
lodging or sleeping, or for any immoral or illegal purpose. Canvassing,
soliciting and peddling in the Building are prohibited and Tenant shall
cooperate in seeking their prevention.
17. Tenant shall properly dispose of edible refuse in sealed containers and
encourage cleanliness among employees to prevent infestation of vermin. If
the Leased Premises become infested with vermin, Tenant, at its sole cost
and expense, shall cause Leased Premises to be exterminated from time to
time, to the satisfaction of the Landlord, and shall employ such
exterminators therefor as shall be approved by Landlord.
18. Tenant shall always conduct its operation in the Leased Premises under its
present trade name, unless Landlord shall otherwise consent in writing.
19. Tenant shall not use the walkway and parking areas adjacent to the
Building for business purposes without the prior written consent of the
Landlord.
20. Tenant shall receive and deliver goods and merchandise only in the manner,
at such times, and in such locations as may be reasonably designated by
Landlord. There shall not be used in any space, or in the common areas of
the Building any equipment which may damage or deface the Building, either
by Tenant or by jobbers or others under Tenant's control, in the delivery
of merchandise or otherwise.
21. Tenant shall comply with all reasonable requests of Landlord or its agents
as such requests pertain to safety and security in the Building.
22. The requirements of Tenant and any complaints of Tenant will be attended
to by notice to Landlord or upon application at the office of Landlord.
Employees of Landlord have no authority and shall perform no work or do
anything outside of the regular duties, unless under special instruction
of the Landlord.
23. In order that the good will and reputation of the Building may be
maintained, no newspaper, magazine or other kind of advertising shall be
issued by any Tenant wherein any office or other space in the Building is
given as an address unless Tenant reasonably determined in good faith that
such advertising could not have any adverse impact on the character of the
Building or its Landlords.
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24. No Tenant shall do, or permit or suffer anything to be done, on the Leased
Premises or in the Building which will interfere with the rights,
privileges and conveniences of any other tenant or which will conflict
with the provisions of any insurance policy covering the Building or any
part thereof or which will violate any law, ordinance or rule or
regulation of any governmental authority.
25. Landlord reserves the right to rescind, amend or waive any rule or
regulation at any time prescribed for the Building when, in its judgment,
it deems it necessary, desirable or proper for its best interest and for
the best interests of the tenants, and no alteration or waiver of any rule
or regulation in favor of one tenant shall operate as an alteration or
waiver in favor of any other tenant. Landlord shall not be responsible to
any tenant for the non-observance or violation by any other tenant of any
of the rules or regulations at any time prescribed for the Building.
Tenant shall conform to all other reasonable rules established by Landlord
and uniformly applied relative to the operation and use of the Building.
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EXHIBIT C
---------
0000 XXXXXXX XXXXXX
SPECIFICATIONS FOR CLEANING SERVICES
FREQUENCY - Five (5) nights per week, Monday through Friday, except holidays.
WORK AREA - 0000 Xxxxxxx Xxxxxx Main lobby and floors 1, 2, and 3
I. GENERAL CLEANING SERVICES
Nightly
- Dust sweep flooring with specially treated mops to insure dust-free
floors.
- Wash flooring in building entrance foyers.
- Vacuum carpet areas and rugs.
- Empty and damp wipe all ashtrays.
- Empty and damp wipe ashtrays and receptacles in corridors.
- Clean cigarette urns and replace sand or water as necessary.
- Empty waste and remove to specific area.
- Dust office furniture and equipment.
- Clean and sanitize drinking fountains.
- Dust counter tops.
- Vacuum carpeted stairwells.
- Damp mop and spray buff floors in the lobby.
- Damp mop and spray buff resilient tile floors. (1/5th of entire area
to be completed each night.
- Vacuum carpeting in elevator.
- Sweep stairs.
- Clean entrance door glass.
- Keep service rooms in clean and orderly condition.
- Clean exposed surfaces in kitchen areas, provided that all utensils
and kitchen equipment shall be kept clean and removed from such
surfaces.
Weekly
- Dust window xxxxx, ledges and baseboards.
- Remove finger marks from light switches, door, door frames.
- Spot-clean glass partition.
- Damp mop stairs.
Periodic Cleaning:
- Strip, seal and refinish all vat floors once per year.
II. LAVATORY CLEANING SERVICES (Nightly)
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- Sweep and wash flooring with approved germicidal detergent solution.
- Wash mirrors, powder shelves, bright work, etc. including
flushometers, piping and toilet seat hinges.
- Wash both sides of toilet seats, wash basins, bowls and urinals with
approved germicidal detergent solution.
- Dust partitions, tile walls, dispensers, doors and receptacles.
- Empty and clean towel and sanitary disposal receptacles.
- Remove wastepaper and refuse to a designated area in the premises.
- Fill toilet tissue, soap and towel dispensers with supplies as
furnished.
III. GENERAL CLEANING SERVICES
Periodic Cleaning:
- Dust venetian blinds.
- Accomplish high dusting every three months, which includes the
following:
- Dust pictures, frames, charts, graphics and similar wall hangings
not reached in nightly cleaning.
- Dust exterior of lighting fixtures.
- Dust overhead pipes, sprinklers, etc.
- Dust window frames.
- Dust vertical surfaces, such as partitions, ventilating louvers,
etc. not reached in nightly cleaning.
- Vacuum upholstered furniture every three months.
- Damp mop corridors and heavy traffic areas nightly.
IV. LAVATORY CLEANING SERVICES
Periodic Cleaning
- Machine scrub flooring with an approved germicidal detergent
solution quarterly.
- Wash partitions, tile walls and enamel surfaces with an approved
germicidal solution once a month.
- Dust exterior of lighting fixtures once a month.
- Accomplish high dusting once a month.
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EXHIBIT D
---------
CLARIFICATION OF LIGHT MANUFACTURING USE
Landlord has permitted Tenant to conduct limited research and development and
light manufacturing within the Leased Premises. It is the intention that these
activities be limited, and Tenant hereby provides the following description of
its research and development ("R&D") and limited manufacturing activities
included in the Use of the Leased Premises upon which Landlord's approval is
based.
Tenant is engaged in developing medical applications that incorporate the use of
its plastic particles called microspheres for an emerging category of procedures
called embolotherapy. At the present time, all production activities are
accomplished at its Paris, France facility.
The following describes Tenant's anticipated activities in the short,
intermediate and long-term future:
o Other than administrative, marketing sales and finance, the Leased
Premises will be used for only a portion of Tenant's research and
development ("R & D") activities and none of its manufacturing. These R &
D activities will involve bench top modeling and testing that incorporates
standard plastic and metal processing technologies. These are accomplished
using hand tools or small mechanized or powered tools that generally use
little power and the process generates little or no heat or noise and no
volatile, toxic or detectable fumes.
o Tenant plans to establish a separate manufacturing capability in the
Leased Premises. This will resemble closely the present manufacturing area
of the Paris facility. It will be limited to an area of approximately 500
square feet. This is a highly conditioned "clean room" environment but
contains little equipment or mechanized tooling. The operations are simple
chemical operations involving the use of several of the raw material and
processing components used to manufacture the present product.
o Tenant will engage in development of complementary products and
technologies that may include other "particle technologies" that
incorporate other materials or combinations of materials. This will
involve some light chemical, mechanical and/or thermal forming processes.
This will require an expansion of the manufacturing area to a total of
approximately 1,000 square feet.
o Almost all of the components used to produce Tenant's product are
inherently non-toxic or non-hazardous. All handling and disposal will be
done in accordance with all pertinent local, state or federal regulatory
standards in effect at the time.
o All operations conducted in the Leased Premises will be conducted using
equipment and materials which use little power and generate little or no
heat or noise and no volatile, toxic or detectable fumes.
35
o In the event Tenant proposes to enter into a sublease or assignment of
this Lease, Landlord shall have the absolute right to withhold its consent
to any subtenant or assignee which proposes to conduct manufacturing and
research and development activities in the Leased Premises, unless such
assignee is a Successor conducting operations substantially identical to
those conducted by Tenant.
Such activities will be considered within the Use of the Leased Premises if they
otherwise comply with the terms of this lease, including without limitation the
following:
o All activities, processes, transportation and handling of materials and
waste are in strict conformance with all environmental, zoning, OSHA, and
other applicable laws, orders, and conditions, and Tenant provides
reasonably satisfactory proof of such conformance to Landlord promptly
upon request.
o None of such uses require utility, HVAC, floor loading or other physical
parameters materially beyond those customary in office uses and provided
in the Building.
o Activities associated with the use shall not be more intrusive, disruptive
or materially more demanding of the Property or the Building beyond the
Leased Premises including, without limitation, use of the loading dock and
other delivery areas.
o Such uses will be limited to areas within the Leased Premises reasonably
acceptable to Landlord, with recognition that the Building shall operate
as a first class office building, and such uses should be as inapparent as
possible outside the Leased Premises.
o Tenant's use shall not materially adversely impact other tenants, the
operation or facilities of the Property, or the compliance with any law,
order or condition.
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SCHEDULE A
LANDLORD'S INITIAL CONSTRUCTION
I. (1) Landlord and Tenant have agreed upon a schematic plan (the "Schematic
Plan") for construction of Landlord's Initial Construction a copy of which is
attached hereto as Exhibit A-1. Landlord shall cause Landlord's Architect to
complete and deliver to Tenant a plan ("Tenant's Plan") consistent with the
Schematic Plan, for the construction of the Leased Premises to prepare for
Tenant's occupancy. Tenant's Plan shall contain all details of Tenant's proposed
improvements to the Leased Premises which are required to permit such
construction by Landlord, including, without limitation, selections of wall
coverings, selection of paint colors, selection of carpeting, door keying
schedule, and the heat factor, if any, of all equipment intended to be used in,
and the human load factor proposed for, each room or other area. Tenant's Plan
shall also include as many requests for pricing of alternatives as Tenant wishes
to consider prior to authorizing Landlord to commence the work pursuant to
Paragraph III below. All of the improvements shown on Tenant's Plan as it is
finally approved by Landlord and Tenant are hereinafter referred to as
"Landlord's Initial Construction." Landlord shall allow Tenant and its agents
and employees access to the Leased Premises at all reasonable times from and
after the date hereof for the purpose of developing Tenant's Plan. Landlord
agrees to reasonably cooperate with Tenant and Tenant's agents, employees and
contractors during the development of Tenant's Plan. Tenant agrees that in order
to prepare Tenant's Plan, Landlord's Architect will need the full cooperation of
Tenant in making decisions with respect to such plan concerning colors, carpets
and other details described above. Tenant shall approve or request modifications
to Tenant's Plan within two (2) business days of receipt from Landlord's
Architect. Tenant agrees to act promptly and within the schedule set forth by
Landlord's Architect for the making of all decisions and approvals required.
(2) Landlord has contracted with Landlord's Architect for all aspects of
Tenant's Plan which constitute a Building Standard installation, and provided
Tenant uses Landlord's Architect for the preparation of Tenant's Plan, that
portion of the cost of preparation of Tenant's Plan related to a Building
Standard installation shall be paid by Landlord provided that Tenant agrees to
pay to Landlord's Architect promptly after receipt of statements therefore the
cost of completing any part of Tenant's Plan as is not covered by the foregoing
description. The foregoing is intended solely as a benefit to Tenant based upon
Landlord's contractual relationship with Landlord's Architect, and Tenant shall
have no obligation to utilize Landlord's Architect for the preparation of
Tenant's Plan.
(3) Tenant's Plan shall be subject to Landlord's approval, which Landlord
agrees not to unreasonably withhold or delay. In this connection, any
disapproval or withholding of approval of such Plan by Landlord shall not be
deemed unreasonable if the work designated on such Plan (i) is not in accordance
with the Building Standard or other standards adopted by Landlord consistent
with the terms and conditions of this Lease and timely communicated to Tenant
for construction in the Building, and with all applicable codes and governmental
regulations, including, without limitation, the energy conservation provisions
of the Massachusetts Building Code, (ii) will require the use of contractors of
a type other than those normally engaged by Landlord in the construction of the
Building without Landlord's prior approval, which shall not be unreasonably
withheld or delayed,
37
(iii) will tend in Landlord's reasonable judgment to delay completion of
Landlord's Initial Construction (as shown on such Plan) beyond the specified
Commencement Date, (iv) is not practicable and consistent with existing physical
conditions in the Building and the plans for the Building which have been filed
with appropriate government authorities, (v) will materially impair Landlord's
ability to perform any of Landlord's obligations under the Lease in the
reasonable judgment of Landlord, (vi) will adversely affect any portion of the
Building other than the Leased Premises or (vii) will exceed the capacity of the
existing feeders or wiring installations serving the Leased Premises.
II. Upon Landlord's and Tenant's approval of Tenant's Plan in accordance with
Paragraph I above, Landlord will promptly negotiate a proposal from a contractor
acceptable to Landlord for Landlord's Initial Construction as shown on Tenant's
Plan including such alternative pricing for any items included in Tenant's Plan
which are beyond the scope of work agreed upon between Landlord and Tenant
("Alternates"). The prices for Alternates specified in Tenant's Plan submitted
by all contractors shall be submitted to Tenant for review forthwith after
receipt.
III. Tenant shall have two (2) business days in which to review such material
concerning Alternates and to approve some alternative combination of work and
the price therefor and to authorize Landlord to commence the work or to
disapprove such work and pricing. The price submitted by the contractor for all
of Landlord's Initial Construction which is in addition to work agreed herein to
be paid for by Landlord (the "Extra Work"), including the price for any
alternative combination of work selected by Tenant pursuant to the preceding
sentence, is hereinafter referred to as "Landlord's Extra Work Price". Any
failure by Tenant to authorize Landlord to perform any element of Landlord's
Initial Construction including any alternative selected as aforesaid within two
(2) business days of submission to Tenant of the material referred to above
shall be deemed a Tenant Delay within the meaning of subparagraph C of Paragraph
V of this Schedule A.
IV. Landlord agrees to construct so much of Landlord's Initial Construction as
constitutes a Building Standard installation as per Schedule A-2 (using
quantities of Building Standard materials necessary to meet the requirements of
Tenant's Plan) at Landlord's sole cost and expense. In addition, Landlord shall
provide glass walls for two conference rooms.
In the event the cost of design and construction of Landlord's Initial
Construction (not including Extra Work) exceeds $140,346, Tenant shall pay to
Landlord the excess cost up to a maximum sum of $31,188 to be defined as
"Tenant's Construction Contribution." Landlord shall be responsible for any
costs in excess of $171,534.00 (not including Extra Work and costs resulting
from Tenant Delays or revisions to Tenant's Plan).
Landlord will also construct Alternates selected by Tenant, the cost of which
shall be borne by Tenant (Extra Work Price). Landlord shall xxxx all or a
portion of the Extra Work Price and Tenant's Construction Contribution to Tenant
as work progresses. Tenant shall pay all amounts due within ten (10) days.
38
V. Completion of Landlord's Initial Construction.
A. Landlord's Initial Construction shall be constructed in a good and
workmanlike manner with reasonable diligence and in accordance with
applicable laws and codes and Tenant's Plan and related
specifications, and shall constitute a single non-recurring
obligation on the part of Landlord. In the event this Lease is
renewed or extended, for a further term by agreement or by operation
of law, or if Tenant shall exercise any option to lease or add
additional rentable area to the Leased Premises, Landlord's
obligation to perform Landlord's Initial Construction shall not
apply to any such renewal, extension or expansion.
B. In accordance with Section 3 of the Lease, unless it occurs prior to
the Specified Commencement Date, the date on which Substantial
Completion of Landlord's Initial Construction in the Initial
Occupancy Area occurs shall constitute the Commencement Date.
"Substantial Completion" of Landlord's Initial Construction or words
of similar import shall mean completion of Landlord's Initial
Construction exclusive of punch list items, i.e., details of
construction, mechanical adjustment and decoration, the completion
of which will not materially interfere with Tenant's use and
occupancy of the Leased Premises for its normal business purposes
("Punch List Items"), including issuance of a certificate of
occupancy which allows Tenant to occupy the Leased Premises
provided, however, that if such Substantial Completion has been
delayed on account of a Tenant Delay (defined below), then
Substantial Completion shall be deemed to have occurred on the date
on which Landlord reasonably determined Substantial Completion would
have occurred but for such Tenant Delay. At any reasonable time,
after such Substantial Completion following reasonable advance
notice to Tenant, Landlord may enter the Leased Premises to complete
such Punch List Items. Landlord shall use reasonable diligence to
complete such Punch List Items within 60 days thereafter unless such
item remains incomplete due to lack of availability or for other
reasons beyond Landlord's control and :Landlord is diligently
pursuing the resolution of such item, and entry by Landlord, its
agents, servants, employees or contractors for such purpose shall
not constitute an actual or constructive eviction, in whole or in
part, or entitle Tenant to any abatement or diminution of rent, or
relieve Tenant from and of its obligations under this Lease, or
impose any liability upon Landlord or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption
of Tenant's business, or otherwise.
C. In the event Substantial Completion of Landlord's Initial
Construction shall be delayed by reason of Tenant's delays in
supplying information, or timely submitting any other plans or
specifications, or in supplying information, or in approving plans
or specifications or estimates, or in giving authorizations
including, without limitation, authorization to proceed with the
work, or by reason of any changes by Tenant in any designations
previously made by Tenant pursuant to this Schedule, or by reason of
any other acts or omissions of Tenant, any such cause shall together
with other acts referred to in subparagraph (d) of this Paragraph be
referred to as "Tenant Delays".
39
D. Landlord and Tenant shall cooperate to facilitate the installation
of cabling, furniture and equipment during the period during which
Landlord's Initial Construction is in process. Provided that Tenant
and its employees, agents and contractors do not unreasonably
interfere with Landlord's Initial Construction, Landlord shall allow
Tenant access to the Leased Premises for such installations. Prior
to Tenant's entry into the Leased Premises as permitted hereunder,
Tenant shall submit a schedule to Landlord (and Landlord's
contractor, if so requested by Landlord), for their reasonable
approval, which schedule shall detail the timing and purpose of
Tenant's entry. Tenant shall hold the Landlord harmless from and
indemnify and protect and defend Landlord against any loss or damage
to the Project or Leased Premises and against injury to any person
caused by Tenant's actions as a result of such entry, to the extent
such loss or damage is not covered by insurance carried or required
to be carried under this Lease.
VI. Alterations.
No Alterations (as opposed to Landlord's Initial Construction) or
installations of equipment or otherwise, whether or not constituting an
Alteration, shall be made or performed by or on behalf of Tenant in the
Leased Premises prior to the Commencement Date without the prior written
approval of Landlord, which approval Landlord agrees not to unreasonably
withhold or delay provided either (i) such work does not impose any
additional burden on Landlord or Landlord's Contractor and does not
materially interfere with or delay completion of Landlord's Initial
Construction, in the reasonable judgment of Landlord, or (ii) Tenant
agrees to reimburse Landlord for any reasonable cost of such additional
burden and to treat any resulting delay in Substantial Completion of
Landlord's Initial Construction as a Tenant Delay. Any such sums billed to
Tenant in connection with Alterations for services provided by Landlord
shall be payable by Tenant to Landlord, whether or not the Lease Term
shall have commenced, within ten (10) days next following the rendition of
a statement therefore by Landlord to Tenant.
VII. Estoppel.
After the Commencement Date, and within ten (10) days next following the
request of Landlord, Tenant shall deliver to Landlord a written statement
executed and acknowledged by Tenant, in form reasonably satisfactory to
the holder of any mortgage of the Property, stating that (i) this Lease is
then in full force and effect and has not been modified (or, if modified,
setting forth the specific nature of all modifications), (ii) Tenant has
accepted the Leased Premises as constructed (iii) the Lease Term has
commenced, and (iv) the rent payable under this Lease is being paid by
Tenant on a current basis with no offsets or counterclaims, or if such is
not the case, stating the correct facts and any reasons therefore if
applicable.
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SCHEDULE B
----------
0000 XXXXXXX XXXXXX
BUILDING STANDARD
Partitions:
New partitions within office space shall consist of 2 "" metal studs with 5/8"
drywall on both sides. Partitions shall extend six inches above ceiling.
On multi-tenant floors, demising partitions between tenants shall be constructed
as above but shall go to underside of floor above.
Doors and Frames:
3'0" x 7'0" solid core stain grade oak veneer doors with knock-down hollow metal
frames.
Door hardware: 1 " pair butts and one building standard lever handle latch set
with brushed steel finish per door.
Ceilings:
Suspended 2' x 4' texture patterned mineral fiber "second look" acoustical
ceiling tile with exposed recessed grid.
Lighting:
Standard lighting is 2' x 4' fluorescent fixtures with parabolic reflectors.
Switches:
Single pole rocker-type light switches are provided for the purpose of
controlling light fixtures.
Convenience Outlets:
The Landlord will provide Building Standard 120 volt duplex convenience outlets
in partitions.
Telephone Outlets:
The Landlord will provide Building Standard telephone outlets. Outlets shall
include pull string and plaster ring, ready to receive Teflon coated wire.
Devices, plates, wiring and instrument by Tenant.
Wiring:
The Landlord will provide a 120/208 volt tenant panel with 100 amp. main.
Flooring:
The Landlord shall provide a selection of carpet and vinyl tile for Tenant's
consideration. A 4" vinyl base will be utilized on all partitions.
Painting:
The Landlord shall provide painting for all partitions, columns and perimeter
walls within the Tenant Space. Such painting shall consist of one (1)
roller-applied primer coat and one (1) roller
41
applied finish coat of latex eggshell. Paint colors shall be selected from the
Xxxxx standard range of colors. No color breaks, dados or special striping or
design shall be provided by Landlord under this Section. The Landlord shall
provide painting for all door frames within the Tenant Space. Such painting
shall consist of two (2) coats of semi-gloss alkyd enamel. Paint colors shall be
selected from the Xxxxx standard range of colors.
The Landlord shall provide finishing for building standard doors. Such finishing
shall consist of staining and sealing to match the building standard finish.
The Landlord reserves the right to approve the color of all soffits at the
exterior windows of the building, in accordance with samples approved by
Landlord and Landlord's Architect, at their sole discretion.
Sprinklers:
Landlord will provide semi-recessed chrome sprinkler heads as required by
Massachusetts State Building Codes.
Window Treatment:
The Landlord will provide Building Standard horizontal mini-blinds for all
exterior windows.
42