hereunder, or pro rata portion thereof on a square footage basis for any portion of the Premises (“Excess Amount”), Tenant shall promptly pay fifty percent (50%) of said Excess Amount to Landlord as and when received by Tenant after first deducting therefrom all of Tenant’s reasonable expenses incurred in connection with such transaction, including, without limitation, brokerage fees and commissions, legal fees and expenses, the cost of any improvements performed at Tenant’s expense for the benefit of the transferee, and any allowance or other concession made by Tenant for the benefit of such transferee. If Tenant requests Landlord’s consent to assign this Lease or sublet more than one-third (1/3) of the Premises, Landlord shall have the option (“Landlord’s Recapture Option”), exercisable by written notice to Tenant given within ten (10) days after receipt of such request, to terminate this Lease as of a date specified in such notice which shall be not less than thirty (30) or more than sixty (60) days after the date of such notice.
Notwithstanding the foregoing, Landlord shall not unreasonably withhold its consent to a proposed assignment or sublease to the specific assignee or subtenant set forth in Tenant’s notice to Landlord requesting approval to such proposed assignment or sublease (“Tenant’s Sublease Notice”), provided that (i) Tenant and the assignee or subtenant set forth in Tenant’s Sublease Notice have executed an assignment or sublease including terms which do not differ materially from those set forth in Tenant’s Sublease Notice within three (3) months of the date of such Notice, (ii) the terms and provisions of such assignment or subletting shall specifically make applicable to the assignee or sublessee all of the provisions of this Section 6.1.6 so that Landlord shall have against the assignee or sublessee all rights with respect to any further assignment and subletting which are set forth herein; (iii) the character of the proposed assignee or subtenant is consistent with the character of the Building as a first-class office building; (iv) the credit of the proposed assignee or subtenant shall be as good as or better than the credit of the Tenant as of the execution of this Lease as reasonably demonstrated by financial information supplied to Landlord with Tenant’s Sublease Notice; (v) provided that Landlord or any affiliate of Landlord then has available for rent space in the Building or the office park in which the Building is located, Landlord or its affiliate shall not have been negotiating with the proposed assignee or subtenant, or any affiliate thereof, for space in the Building within the previous twelve (12) months; (vi) no assignment or subletting shall affect the continuing primary liability of Tenant (which, following assignment shall be joint and several with the assignee); (vii) no consent to any of the foregoing in a specific instance shall operate as a waiver in any subsequent instance; (viii) no consent shall be deemed unreasonably withheld by Landlord to the extent the granting of consent might cause Landlord to be in default under any mortgage; and (ix) no assignment shall be binding upon Landlord or any of Landlord’s mortgagees, unless Tenant shall deliver to Landlord an instrument in recordable form which contains a covenant of assumption by the assignee running to Landlord and all persons claiming by, through or under Landlord (an “Assumption Agreement”), but the failure or refusal of the assignee to execute an Assumption Agreement shall not release or discharge the assignee from its liability as tenant hereunder. In the event Tenant and the proposed assignee or sublessee have failed to execute an assignment or sublease within three (3) months of the date of Tenant’s Sublease Notice, Tenant’s right to assign or sublease shall again be subject to the provisions of this Section 6.1.6.
Notwithstanding the foregoing, Tenant may assign this Lease (a “Permitted Assignment”) to an entity owned or controlled by, under common ownership or control with or owning or controlling Tenant (in each case, an “Affiliate”) or to a third party successor of substantially all
of Tenant’s stock or business operations (a “Successor”), without Landlord’s consent, but upon thirty (30) days’ prior notice, accompanied by information which reasonably demonstrates that the proposed assignee is an Affiliate or a Successor, as the case may be, provided such assignee provides an Assumption Agreement to Landlord. A request for Landlord’s consent to a Permitted Assignment shall not trigger Landlord’s Recapture Option nor shall Tenant be required to share with Landlord any portion of the Excess Amount, if any, realized by Tenant in connection with a Permitted Assignment. The liability of Tenant and any assignee to Landlord hereunder shall following assignment be joint and several.
6.1.7 Indemnity. To defend, with counsel approved by Landlord, which approval shall not be unreasonably withheld and which shall not be required with respect to counsel appointed by any insurer assuming liability for the applicable claim, all actions against Landlord, Managing Agent, any partner, member, trustee, stockholder, officer, director, employee or beneficiary of Landlord or Managing Agent, holders of mortgages secured by the Premises or the Building and Lot and any other party having an interest in the Premises (“Indemnified Parties”) with respect to, and to pay, protect, indemnify and save harmless, to the extent permitted by law, all Indemnified Parties from and against, any and all liabilities, losses damages, costs, expenses (including reasonable attorneys’ fees and expenses), causes of action, suits, claims, demands or judgments of any nature arising from or related to (i) injury to or death of any person, or damage to or loss of property, on the Premises, or connected with the use, condition or occupancy of the Premises unless caused by the negligence of Landlord or its agents, contractors or employees, (ii) violation of this Lease, or (iii) any act, fault, omission, or other misconduct of Tenant or its agents, employees, contractors, licensees, sublessees or invitees or (iv) the use, generation, storage or disposal of Hazardous Materials by Tenant or its agents, employees or invitees on the Premises, the Building or Lot or any portion thereof or any surrounding area, including, without limitation, any and all liabilities, losses, damages, costs, expenses (including reasonable attorneys’ fees and expenses), causes of action, suits, claims, demands or judgments of any nature arising from or related to removal or other remediation of any Hazardous Materials or precautions required to protect against the release of Hazardous Materials by Tenant or its agents, employees, contractors, licensees, sublessees or invitees into the environment to the extent required by any Environmental Laws (as defined above).
6.1.8 Tenant’s Insurance. To carry and maintain, or cause to be carried and maintained, the following, at all times during the term of this lease and at Tenant’s expense:
all Risk Property insurance including coverage of the full replacement value of Tenant’s improvements, betterments, furniture, fixtures, equipment and contents. The insurer used by Tenant hereunder shall waive rights of subrogation against Landlord for losses payable under such All Risk Property insurance;
a commercial general liability insurance policy (hereinafter referred to as a “Liability Policy”). Such Liability Policy shall include Landlord (and any other party reasonably required by Landlord), as Additional Insured and be written on an “occurrence basis” including, without limitation, blanket contractual liability coverage, broad form property damage, and personal injury coverage protecting Landlord against liability (except for liability resulting from gross negligence or willful misconduct of Landlord) occasioned by any occurrence on or about the premises. Such Liability Policy shall be maintained in an amount not less than $1,000,000 for a
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single occurrence limit and $2,000,000 for an aggregate limit, and, in addition, $5,000,000 per single occurrence and $5,000,000 per aggregate of excess or umbrella liability insurance;
such other insurance or such additional amounts of insurance with respect to the Premises as is generally maintained by persons having similar exposures or properties similarly situated and as the Landlord shall from time to time reasonably require;
All policies of insurance maintained by Tenant shall be in a form reasonably acceptable to Landlord issued by an insurer with an A.M. Best rating of at least (A-)(VIII); issued by Chubb or another insurer reasonably acceptable to Landlord and licensed to do business in The Commonwealth of Massachusetts; and require at least thirty (30) days’ written notice of cancellation, non-renewal or material alteration to Landlord and to Landlord’s mortgagee(s), and those who are named as additional insureds. If requested by Landlord, Tenant shall, upon the Commencement Date, and thereafter no less than thirty (30) days prior to the expiration date of each such policy, deliver to Landlord or Landlord’s designated representative a certificate or certificates of such insurance and written evidence satisfactory to Landlord that all premiums have been paid and all policies are in effect. If Tenant fails to secure or maintain any insurance coverage required by clause (a) above, or should insurance secured not be approved by Landlord (which approval shall not be unreasonably withheld), Landlord may, without obligation, purchase such required insurance coverage at Tenant’s expense. Tenant shall promptly reimburse Landlord for any monies so expended.
6.1.9 Tenant’s Worker’s Compensation Insurance. To keep all of Tenant’s employees working in the Premises covered by worker’s compensation insurance in statutory amounts and to furnish Landlord with certificates thereof.
6.1.10 Landlord’s Right of Entry. To permit Landlord and Landlord’s agents entry: to examine the Premises at reasonable times and, except in an emergency, after reasonable advance notice and, if Landlord shall so elect, to make repairs or replacements; to remove, at Tenant’s expense, any changes, additions, signs, curtains, blinds, shades, awnings, aerials, or the like not consented to in writing or otherwise specifically permitted hereunder; and to show the Premises to prospective tenants during the twelve (12) months preceding expiration of the Term and to prospective purchasers and mortgagees at all reasonable times.
6.1.11 Loading. Not to place Tenant’s Property, as defined in Section 6.1.13, upon the Premises so as to exceed a rate of eighty (80) pounds of live load per square foot (including 20 pounds per square foot for walls and partitions) and not to move any safe, vault or other heavy equipment in, about or out of the Premises except in such manner and at such times as Landlord shall in each instance approve; Tenant’s business machines and mechanical equipment which cause vibration or noise that may be transmitted to the Building structure or to any other leased space in the Building shall be placed and maintained by Tenant in settings of cork, rubber, spring, or other types of vibration eliminators sufficient to eliminate such vibration or noise.
6.1.12 Landlord’s Costs. In case Landlord shall be made party to any litigation commenced by or against Tenant or by or against any parties in possession of the Premises or any part thereof claiming under Tenant, to pay, as additional rent, all costs including, without implied limitation, reasonable counsel fees incurred by or imposed upon Landlord in connection with such litigation
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and, as additional rent, also to pay all such costs and fees incurred by Landlord in connection with the successful enforcement by Landlord of any obligations of Tenant under this Lease.
6.1.13 Tenant’s Property. All the furnishings, fixtures, equipment, effects and property of every kind, nature and description of Tenant and of all persons claiming by, through or under Tenant which, during the continuance of this Lease or any occupancy of the Premises by Tenant or anyone claiming under Tenant, may be on the Premises or elsewhere in the Building or on the Lot shall be at the sole risk and hazard of Tenant, and if the whole or any part thereof shall be destroyed or damaged by fire, water or otherwise, or by the leakage or bursting of water pipes, steam pipes, or other pipes, by theft, or from any other cause, no part of said loss or damage is to be charged to or to be borne by Landlord unless due to the gross negligence of Landlord.
6.1.14 Labor or Materialmen’s Liens. To pay promptly when due the entire cost of any work done on the Premises by Tenant, its agents, employees, or independent contractors; not to cause or permit any liens for labor or materials performed or furnished in connection therewith to attach to the Premises; and to discharge any such liens which may so attach promptly after Tenant receives notice thereof or otherwise becomes aware thereof.
6.1.15 Changes or Additions. To make any changes or additions to the Premises only in accordance with Article III hereto and to reimburse Landlord for all reasonable, out of pocket costs incurred by Landlord in reviewing Tenant’s proposed changes or additions.
6.1.16 Holdover. To pay to Landlord the greater of 150% for the first two (2) months of any holdover, and 200% thereafter, of (a) the then fair market rent as reasonably determined by Landlord or (b) the sum of the Annual Rent and all additional rent then applicable for each month or portion thereof Tenant shall retain possession of the Premises or any part thereof after the termination of this Lease, whether by lapse of time or otherwise, and also to pay all damages sustained by Landlord on account thereof; the provisions of this subsection shall not operate as a waiver by Landlord of the right of reentry provided in this Lease.
6.1.17 Security. To forever release and remise Landlord from any claim for injury to person or damage to property asserted by any personnel, employee, guest, invitee or agent of Tenant which is suffered or occurs in or about the Premises or in or about the Building or the Lot by reason of the act of any intruder or any other person in or about the Premises, the Building or the Lot, except to the extent caused by the negligence or willful misconduct of Landlord or its agents, employees or contractors.
6.1.18 Tenant Financial Statements. In connection with a sale or financing of the Building, or the Lot, Tenant shall provide Landlord with Tenant’s most recent financial statements (audited, if available) within thirty (30) days of Landlord’s request therefor if the same are not publicly available via the internet.
ARTICLE VII. DAMAGE AND DESTRUCTION; CONDEMNATION
7.1 FIRE OR OTHER CASUALTY.
Subject to the provisions of Section 7.1.2 hereof, in the event during the Term hereof the Premises shall be partially damaged (as distinguished from “substantially damaged” as such term
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is hereinafter defined) by fire, explosion, casualty or any other occurrence covered or as may be required to be covered, as herein provided, by Landlord’s insurance or by such casualty plus required demolition, or by action taken to reduce the impact of any such event, Landlord shall forthwith proceed to repair such damage and restore the Premises, or so much thereof as was originally constructed or delivered by Landlord to substantially its condition at the time of such fire, explosion, casualty or occurrence, provided that Landlord shall not be obligated to expend for such repair an amount in excess of the insurance proceeds recovered as a result of such damage plus the deductible payable under any applicable insurance policy and, further provided that Tenant is not then in default of any of its obligations under this Lease beyond any applicable cure period. Landlord shall not be responsible for any delay which may result from any cause beyond Landlord’s reasonable control.
If, however, (i) the Premises should be damaged or destroyed (a) by fire or other casualty (1) to the extent of twenty-five percent (25%) or more of the cost of replacement, or (2) so that twenty-five percent (25%) or more of the principal area contained in the Premises shall be rendered untenantable, or (b) by any casualty other than those covered by insurance policies required to be maintained by Landlord under this Lease (hereinafter “substantially damaged”), or (ii) the Premises shall be damaged in whole or in part during the last year of the Term such that the repair thereof cannot, in the ordinary course, be completed within sixty (60) days, or (iii) the Premises shall be damaged in whole or in part during the last six (6) months of the Term, or (iv) there shall be damage to the Premises of a character as cannot reasonably be expected to be repaired within nine (9) months from the date of casualty, or (v) such restoration involves the demolition of or repair of damage to twenty-five percent (25%) or more of the Premises, or (vi) applicable law requires the demolition of the Building or forbids the rebuilding of the damaged portion of the Building, or (vii) such restoration requires repairs in an amount in excess of the insurance proceeds recovered or recoverable plus the deductible payable under any applicable insurance policy, or (viii) Landlord’s mortgagee shall require that the insurance proceeds from such damage or destruction be applied against the principal balance due on any mortgage, Landlord may, at its option, either terminate this Lease or elect to repair the Premises and Landlord shall notify Tenant as to its election within ninety (90) days after such fire or casualty. If Landlord elects to terminate this Lease, the Term hereof shall end on the date specified in the notice (which shall be the end of a calendar month and not sooner than thirty (30) days after such election was made). If Landlord does not elect to terminate this Lease, then Landlord shall perform such repairs set forth in Section 7.1.3 hereof and Tenant shall perform such repairs in the Building as set forth in Section 7.1.4 hereof, and the Term shall continue without interruption and this Lease shall remain in full force and effect.
If Landlord has not elected to terminate this Lease and if (i) there shall be damage to the Premises of a character as cannot (in the reasonable judgment of Landlord’s engineer) reasonably be expected to be repaired within nine (9) months from the date of casualty or (ii) the Premises shall damaged in whole or in part during the last year of the Term such that the repair thereof cannot, in the ordinary course, be completed within sixty (60) days, or (iii) if Landlord does not actually complete the restoration required under this Article VII within twelve (12) months after the occurrence of such casualty, then, in any such event, Tenant may, at its option, terminate this Lease provided that, in the case of (i) or (ii) above, Tenant’s election shall be made by notice to Landlord within thirty (30) days of Landlord’s delivery of the estimate of Landlord’s engineer as to the time period required for restoration.
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If Landlord or Tenant does not elect to terminate this Lease as provided in Section 7.1.2 hereof and if Tenant is not then in default of any of its obligations under the Lease beyond any applicable cure period provided for herein, Landlord shall reconstruct the Premises, and such other portions of the common areas and facilities of the Building as shall be necessary to provide access to the Premises and the building services required to be provided under this Lease, to substantially their condition at the time of such damage, but Landlord shall not be responsible for any delays which may result from any cause beyond Landlord’s reasonable control.
If Landlord or Tenant does not elect to terminate this Lease as provided in Section 7.1.2 hereof; Tenant shall, at its own cost and expense, unless Tenant elects to not reoccupy the Premises, repair and restore the Premises in accordance with the provisions of Section 6.1.15 hereof to the extent not required to be repaired by Landlord pursuant to the provisions of this Section 7.1, including, but not limited to, the repairing and/or replacement of its merchandise, trade fixtures, furnishings and equipment in a manner and to at least a condition equal to that prior to its damage or destruction. Tenant agrees to commence the performance of its work promptly after Landlord completes the restoration work to be performed by Landlord under Section 7.13 and, in such event, Tenant shall complete such work as promptly thereafter as is practicable, but in no event more than 90 days thereafter.
All proceeds payable from Landlord’s insurance policies with respect to the Premises shall belong to and shall be payable to Landlord. If Landlord does not elect to terminate this Lease as provided in Section 7.1.2 hereof, Landlord shall disburse and apply so much of any insurance recovery (including payment of the deductible by Landlord) as shall be necessary against the cost to Landlord of restoration and rebuilding of Landlord’s work referred to in Section 7.1.3 hereof, subject to the prior rights of any lessor under a ground or underlying lease covering the Building and/or the holder of any mortgage liens against the Building; provided, however, that Landlord agrees to use reasonable efforts to assert any rights it may have under any applicable mortgage or ground lease to obtain insurance proceeds for restoration purposes.
In the event that the provisions of Section 7.1.1 or Section 7.1.2 shall become applicable, the Annual Rent and additional rent shall be abated or reduced proportionately during any period in which, by reason of such damage or destruction, there is substantial interference with the operation of the business of Tenant in the Premises, having regard to the extent to which Tenant may be required to discontinue its business in the Premises, and such abatement or reduction shall continue for the period commencing with such destruction or damage and ending with the completion by Landlord of such work of repair and/or reconstruction as Landlord is obligated to do.
7.2 EMINENT DOMAIN.
If, after the execution and before termination of this Lease, the entire Premises shall be taken by eminent domain or destroyed by the action of any public or quasi-public authority, or in the event of conveyance in lieu thereof, the Term shall cease as of the day possession shall be taken by such authority, and Tenant shall pay rent up to that date with a pro-rata refund by Landlord of such rent and additional rent as shall have been paid in advance for a period subsequent to the date of the taking of possession.
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If less than twenty-five percent (25%) of the Premises shall be so taken or conveyed, this Lease shall cease only with respect to the parts so taken or conveyed, as of the day possession shall be taken, and Tenant shall pay rent up to that day, with an appropriate refund by Landlord of such rent as may have been paid in advance for a period subsequent to the date of the taking of possession, and thereafter the Annual Rent shall be equitably adjusted. Pending agreement of such rental adjustment, Tenant agrees to pay to Landlord the Annual Rent and additional rent in effect immediately prior to the taking by eminent domain. Landlord shall at its expense make all necessary repairs or alterations so as to constitute the remaining premises a complete architectural unit. If more than twenty-five percent (25%) of the Premises shall be so taken or conveyed, then the Term shall cease only as respects the part so taken or conveyed, from the day possession shall be taken, and Tenant shall pay rent to that date with an appropriate refund by Landlord of such rent as may have been paid in advance for a period subsequent to the date of the taking of possession, but Landlord shall have the right to terminate this Lease upon notice to Tenant in writing within thirty (30) days after such taking of possession. If Landlord does not elect to terminate the Lease, all of the terms herein provided shall continue in effect except that the Annual Rent shall be equitably adjusted, and Landlord shall make all necessary repairs or alterations so as to constitute the remaining premises a complete architectural unit.
Notwithstanding the foregoing, if a material portion of the Premises shall be taken such that the Premises cannot reasonably be used by Tenant for the Permitted Uses, or access to the Lot, or any portion of the parking facility such that the parking areas serving the Building do not contain at least two (2) parking spaces for each 1,000 square feet of rentable floor area in the Building (after taking into account any other buildings served by such parking area), shall be taken, then, in any such event, each of Landlord or Tenant shall have the right to terminate this Lease upon notice to the other within thirty (30) days after such taking. If neither party elects to terminate the Lease, all of the terms herein provided shall continue in effect, subject to the provisions hereof.
All compensation awarded for any such taking or conveyance, whether for the whole or a part of the Premises, shall be the property of Landlord, whether such damages shall be awarded as compensation for diminution in the value of the leasehold or of the fee of or underlying leasehold interest in the Premises, and Tenant hereby assigns to Landlord all of Tenant’s right, title and interest in and to any and all such compensation; provided, however, that Tenant shall be entitled to seek a separate award for Tenant’s stock, trade fixtures and relocation expense.
In the event of any taking of the Premises or any part thereof for temporary use (i.e., for less than twelve (12) months), this Lease shall be and remain unaffected thereby and rent shall not abate, but Tenant shall have the exclusive right to seek compensation for such taking for temporary use.
ARTICLE VIII. RIGHTS OF MORTGAGEE
8.1 PRIORITY OF LEASE.
This Lease is and shall continue to be subject and subordinate to any presently existing mortgage or deed of trust of record covering the Lot or Building or both (the “mortgaged premises”). The holder of any such presently existing mortgage or deed of trust shall have the election to subordinate the same to the rights and interests of Tenant under this Lease exercisable by filing
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with the appropriate recording office a notice of such election, whereupon the Tenant’s rights and interests hereunder shall have priority over such mortgage or deed of trust. Landlord agrees to use diligent good faith efforts to obtain an SNDA (defined below) from the holder of any present mortgage or deed of trust on the mortgaged premises.
Unless the option provided for in the next following sentence shall be exercised, this Lease shall be superior to and shall not be subordinate to, any mortgage, deed of trust or other voluntary lien hereafter placed on the mortgaged premises. The holder of any such mortgage, deed of trust or other voluntary lien shall have the option to subordinate this Lease to the same, provided that such holder enters into an agreement (an “SNDA”) with Tenant by the terms of which the holder will agree to recognize the rights of Tenant under this Lease and to accept Tenant as tenant of the Premises under the terms and conditions of this Lease in the event of acquisition of title by such holder through foreclosure proceedings or otherwise and Tenant will agree to recognize the holder of such mortgage as Landlord in such event, which agreement shall be made to expressly bind and inure to the benefit of the successors and assigns of Tenant and of the holder and upon anyone purchasing the mortgaged premises at any foreclosure sale. Any such mortgage to which this Lease shall be subordinated may contain such commercially reasonable terms, provisions and conditions as the holder deems usual or customary.
8.2 RIGHTS OF MORTGAGE HOLDERS; LIMITATION OF MORTGAGEE’S LIABILITY.
The word “mortgage” as used herein includes mortgages, deeds of trust or other similar instruments evidencing other voluntary liens or encumbrances, and modifications, consolidations, extensions, renewals, replacements and substitutes thereof. The word “holder” shall mean a mortgagee, and any subsequent holder or holders of a mortgage. Until the holder of a mortgage shall enter and take possession of the Premises for the purpose of foreclosure, such holder shall have only such rights of Landlord as are necessary to preserve the integrity of this Lease as security. Upon entry and taking possession of the Premises for the purpose of foreclosure, such holder shall have all the rights of Landlord. Notwithstanding any other provision of this Lease to the contrary, including without limitation Section 10.4, no such holder of a mortgage shall be liable, either as mortgagee or as assignee, to perform, or be liable in damages for failure to perform any of the obligations of Landlord unless and until such holder shall enter and take possession of the Premises for the purpose of foreclosure, and such holder shall not in any event be liable to perform or for failure to perform the obligations of Landlord under Section 3.2. Upon entry for the purpose of foreclosure, such holder shall be liable to perform all of the obligations of Landlord (except for the obligations under Section 3.2), subject to and with the benefit of the provisions of Section 10.4, provided that a discontinuance of any foreclosure proceeding shall be deemed a conveyance under said provisions to the owner of the equity of the Premises.
8.3 MORTGAGEE’S ELECTION.
Notwithstanding any other provision to the contrary contained in this Lease, if prior to substantial completion of Landlord’s obligations under Article III, any holder of a first mortgage on the mortgaged premises enters and takes possession thereof for the purpose of foreclosing the mortgage, such holder may elect, by written notice given to Tenant and Landlord at any time within ninety (90) days after such entry and taking of possession, not to perform Landlord’s
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obligations under Article III, and in such event such holder and all persons claiming under it shall be relieved of all obligations to perform, and all liability for failure to perform, said Landlord’s obligations under Article III, and Tenant may terminate this Lease and all its obligations hereunder by written notice to Landlord and such holder given within thirty (30) days after the day on which such holder shall have given its notice as aforesaid.
8.4 NO PREPAYMENT OR MODIFICATION, ETC.
Tenant shall not pay Annual Rent, additional rent, or any other charge more than twenty (20) days prior to the due date thereof. No prepayment of Annual Rent, additional rent or other charge, no assignment of this Lease and no agreement to modify so as to reduce the rent, change the Term, or otherwise materially change the rights of Landlord under this Lease, or to relieve Tenant of any obligations or liability under this Lease, shall be enforceable against any mortgagee unless consented to in writing by the mortgagee of record at the time thereof, if any.
8.5 NO RELEASE OR TERMINATION.
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 Landlord’s mortgagees of record, if any, specifying the act or failure to act on the part of Landlord which could or would give basis to Tenant’s rights and (ii) such mortgagees, 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 Section 8.5 shall be deemed to impose any obligation on any such mortgagee to correct or cure any such condition. “Reasonable time” as used above means and includes a reasonable time to obtain possession of the mortgaged premises, if the mortgagee elects to do so, and a reasonable time to correct or cure the condition if such condition is determined to exist. Nothing contained in this Section 8.5 shall affect Tenant’s termination rights under Article VII.
8.6 CONTINUING OFFER.
The covenants and agreements contained in this Lease with respect to the rights, powers and benefits of a mortgagee (particularly, without limitation thereby, the covenants and agreements contained in this Article VIII) constitute a continuing offer to any person, corporation or other entity, which by accepting or requiring an assignment of this Lease or by entry or foreclosure assumes the obligations herein set forth with respect to such mortgagee; such mortgagee is hereby constituted a party to this Lease as an obligee hereunder to the same extent as though its name were written hereon as such; and such mortgagee shall be entitled to enforce such provisions in its own name. Tenant agrees on request of Landlord to execute and deliver from time to time any commercially reasonable agreement which may reasonably be deemed necessary to implement the provisions of this Article VIII.
ARTICLE IX. DEFAULT
9.1 EVENTS OF DEFAULT.
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If any default by Tenant continues, in case of Annual Rent, additional rent or any other monetary obligation to Landlord for more than ten (10) days after notice to Tenant thereof (provided that no notice shall thereafter be required if Tenant defaults in any monetary requirement twice in any twelve (12) month period), or if Tenant fails to provide an estoppel certificate in accordance with Section 10.10 hereof, which failure continues for more than ten (10) days after notice to Tenant thereof, or if any default by Tenant continues in any other case for more than thirty (30) days after notice and such additional time, if any, as is reasonably necessary to cure the default if the default is of such a nature that it cannot reasonably be cured in thirty (30) days and Tenant promptly commences to cure such default and diligently pursues such cure without interruption to completion; or if Tenant becomes insolvent, fails to pay its debts as they fall due, files a petition under any chapter of the U.S. Bankruptcy Code, 11 U.S.C. 101 et seq., as it may be amended (or any similar petition under any insolvency law of any jurisdiction), or if such petition is filed against Tenant and not dismissed within sixty (60) days; or if Tenant proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, makes an assignment or trust mortgage for benefit of creditors, or if a receiver, trustee, custodian or similar agent is appointed or takes possession with respect to any property of Tenant, and, unless such appointment was consented to by Tenant, such appointment is not dismissed within sixty (60) days; or if the leasehold hereby created is taken on execution or other process of law in any action against Tenant; then, and in any such case, Landlord and the agents and servants of Landlord may, in addition to and not in derogation of any remedies for any preceding breach of covenant, immediately or at any time thereafter while such default continues and without further notice, at Landlord’s election, do any one or more of the following: (1) give Tenant written notice stating that the Lease is terminated, effective upon the giving of such notice or upon a date stated in such notice, as Landlord may elect, in which event the Lease shall be irrevocably extinguished and terminated as stated in such notice without any further action, or (2) with or without process of law, in a lawful manner enter and repossess the Premises as of Landlord’s former estate, and expel Tenant and those claiming through or under Tenant, and remove its and their effects, without being guilty of trespass, in which event the Lease shall be irrevocably extinguished and terminated at the time of such entry, or (3) pursue any other rights or remedies permitted by law. Any such termination of the Lease shall be without prejudice to any remedies which might otherwise be used for arrears of rent or prior breach of covenant, and in the event of such termination Tenant shall remain liable under this Lease as hereinafter provided. Tenant hereby waives all statutory rights (including, without limitation, rights of redemption, if any) to the extent such rights may be lawfully waived, and Landlord, without notice to Tenant, may store Tenant’s effects and those of any person claiming through or under Tenant at the expense and risk of Tenant and, if Landlord so elects, may sell such effects at public auction or private sale and apply the net proceeds to the payment of all sums due to Landlord from Tenant, if any, and pay over the balance, if any, to Tenant.
9.2 TENANT’S OBLIGATIONS AFTER TERMINATION.
In the event that this Lease is terminated under any of the provisions contained in Section 9.1 or shall be otherwise terminated for breach of any obligation of Tenant, Tenant covenants to pay forthwith to Landlord, as compensation, the net present value, discounted at a rate reasonably determined by Landlord, of the excess of the total rent reserved for the residue of the Term over the rental value of the Premises for said residue of the Term. In calculating the rent reserved, there shall be included, in addition to the Annual Rent and all additional rent, the value of all
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other consideration agreed to be paid or performed by Tenant for said residue. Tenant further covenants as an additional and cumulative obligation after any such ending to pay punctually to Landlord all the sums and perform all the obligations which Tenant covenants in this Lease to pay and to perform in the same manner and to the same extent and at the same time as if this Lease had not been terminated. In calculating the amounts to be paid by Tenant under the next foregoing covenant, Tenant shall be credited with any amount paid to Landlord as compensation as provided in the first sentence of this Section 9.2 and also with the net proceeds of any rents obtained by Landlord by reletting the Premises, after deducting all Landlord’s expenses in connection with such reletting, including, without implied limitation, all repossession costs, brokerage commissions, fees for legal services and expenses of preparing the Premises for such reletting, it being agreed by Tenant that Landlord may (i) relet the Premises or any part or parts thereof for a term or terms which may at Landlord’s option be equal to or less than or exceed the period which would otherwise have constituted the balance of the Term and may grant such concessions and free rent as Landlord in its sole judgment considers advisable or necessary to relet the same and (ii) make such alterations, repairs and decorations in the Premises as Landlord in its sole judgment considers advisable or necessary to relet the same, and no action of Landlord in accordance with the foregoing or failure to relet or to collect rent under reletting shall operate or be construed to release or reduce Tenant’s liability as aforesaid.
Nothing contained in this Lease shall, however, limit or prejudice the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, the damages are to be proved, whether or not the amount be greater, equal to, or less than the amount of the loss or damages referred to above.
ARTICLE X. MISCELLANEOUS
10.1 NOTICE OF LEASE.
Upon request of either party, both parties shall execute and deliver, after the Term begins, a notice of this Lease in form appropriate for recording or registration, and if this Lease is terminated before the Term expires, an instrument in such form acknowledging the date of termination.
10.2 RELOCATION.
Not more than once during the Term, Landlord reserves the right to relocate the Premises to comparable space within the Building or another Office Park Building by giving Tenant prior written notice of such intention to relocate. If within thirty (30) days after receipt of such notice, Landlord and Tenant have not agreed on the space to which the Premises are to be relocated and the timing of such relocation, this Lease shall terminate on that date which is sixty (60) days after the Tenant’s receipt of such notice. If Landlord and Tenant do so agree, then the Lease shall be deemed amended by deleting the description of the original Premises and substituting therefor a description of such comparable space and, if such relocation is to another Office Park Building owned by a party other than Landlord, by reexecuting the Lease with the owner of such other Office Park Building being substituted for the Landlord hereunder. The relocation shall occur
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during hours other than normal business hours. Landlord agrees to pay all of the reasonable costs incurred by Tenant in connection with such relocation, including, without limitation, replacing a reasonable stock of Tenant’s stationery if Tenant’s current stationery is rendered obsolete as a result of the relocation.
10.3 NOTICES FROM ONE PARTY TO THE OTHER.
All notices required or permitted hereunder shall be in writing and addressed, if to the Tenant, at Tenant’s Address or such other address as Tenant shall have last designated by notice in writing to Landlord and, if to Landlord, at Landlord’s Address or such other address as Landlord shall have last designated by notice in writing to Tenant. Any notice shall have been deemed duly given if mailed to such address postage prepaid, registered or certified mail, return receipt requested, when deposited with the U.S. Postal Service, or if delivered to such address by hand, when so delivered or by a reputable overnight delivery service, such as Federal Express, in each case, upon delivery, attempted delivery, or refusal to accept delivery, whichever occurs first at the address of the intended recipient.
10.4 BIND AND INURE.
The obligations of this Lease shall run with the land, and this Lease shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that the Landlord named herein and each successive owner of the Premises shall be liable only for the obligations accruing during the period of its ownership (provided, however, that a transfer of the Building to an entity controlling, controlled by, or under common control with Landlord shall not relieve such successor for liability for the existing defaults of the transferring Landlord). The obligations of Landlord shall be binding upon the assets of Landlord which comprise the Building and the Lot but not upon other assets of Landlord. No individual partner, member, trustee, stockholder, officer, director, employee or beneficiary of Landlord shall be personally liable under this Lease and Tenant shall look solely to Landlord’s interest in the Building and the Lot in pursuit of its remedies upon an event of default hereunder, and the general assets of the individual partners, trustees, stockholders, officers, employees or beneficiaries of Landlord shall not be subject to levy, execution or other enforcement procedure for the satisfaction of the remedies of Tenant. Notwithstanding the foregoing, Tenant shall have recourse against the proceeds of a sale of the Building and the Lot (the “Proceeds”) for obligations of the transferring Landlord accruing during such transferring Landlord’s period of ownership of the Building and the Lot, unless and until the occurrence of either of the following, after which Tenant shall not have recourse to the Proceeds: (a) Tenant has delivered an estoppel certificate in connection with such sale which does not take exception for any default or other condition which forms the basis of a claim by Tenant against such transferring Landlord (the “Exception Matters”), or (b) Tenant has failed to deliver an estoppel certificate in connection with such sale within ten (10) days after written request therefor in accordance with Section 10.10 hereof. In the case of delivery of an estoppel certificate by Tenant under (a) above, recourse to the Proceeds shall be limited to claims relating to Exception Matters, if any, and only to the extent that Tenant brings an action in a court of competent jurisdiction to assert such claims within ninety (90) days after Landlord’s request for an estoppel certificate, and then only during the pendency of such claims.
10.5 NO SURRENDER.
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The delivery of keys to any employee of Landlord or to Landlord’s agent or any employee thereof shall not operate as a termination of this Lease or a surrender of the Premises.
10.6 NO WAIVER, ETC.
The failure of either party to seek redress for violation of, or to insist upon the strict performance of any covenant or condition of this Lease or any of the Rules and Regulations referred to in Section 6.1.4, whether heretofore or hereafter adopted by Landlord, shall not be deemed a waiver of such violation nor prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation, nor shall the failure of Landlord to enforce any of said Rules and Regulations against any other tenant in the Building be deemed a waiver of any such Rules or Regulations. The payment by Tenant or receipt by Landlord of Annual Rent or additional rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach by such party, unless such waiver be in writing and signed by such party. No consent or waiver, express or implied, by either party to or of any breach of any agreement or duty shall be construed as a waiver or consent to or of any other breach of the same or any other agreement or duty.
10.7 NO ACCORD AND SATISFACTION.
No acceptance by Landlord of a lesser sum than the Annual Rent and additional rent then due shall be deemed to be other than on account of the earliest installment of such rent due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed as accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such installment or pursue any other remedy in this Lease provided.
10.8 CUMULATIVE REMEDIES.
The specific remedies to which Landlord or Tenant may resort under the terms of this Lease are cumulative and are not intended to be exclusive of any other remedies or means of redress to which it may be lawfully entitled in case of any breach or threatened breach by the other party of any provisions of this Lease. In addition to the other remedies provided in this Lease, either party shall be entitled to the restraint by injunction of the violation or attempted or threatened violation of any of the covenants, conditions or provisions of this Lease or to a decree compelling specific performance of any such covenants, conditions or provisions.
10.9 LANDLORD’S RIGHT TO CURE.
If Tenant shall at any time default in the performance of any obligation under this Lease, Landlord shall have the right, but shall not be obligated, to enter upon the Premises and to perform such obligation, notwithstanding the fact that no specific provision for such substituted performance by Landlord is made in this Lease with respect to such default. In performing such obligation, Landlord may make any payment of money or perform any other act. All sums so paid by Landlord (together with interest at the rate of 4% per annum in excess of the then prime commercial rate of interest being charged by the three largest national banks in Boston, Massachusetts) and all necessary incidental costs and expenses in connection with the performance of any such act by Landlord, shall be deemed to be additional rent under this Lease
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and shall be payable to Landlord immediately on demand. Landlord may exercise the foregoing rights without waiving any other of its rights or releasing Tenant from any of its obligations under this Lease.
10.10 ESTOPPEL CERTIFICATE.
Each party agrees, from time to time, upon not less than ten (10) days’ prior written request by the other, to execute, acknowledge and deliver to the requesting party a statement in writing certifying, if and to the extent then true and correct, that this Lease is unmodified and in full force and effect; that Tenant has no defenses, offsets or counterclaims against its obligations to pay the Annual Rent and additional rent and to perform its other covenants under this Lease; that there are no uncured defaults of Landlord or Tenant under this Lease (or, if there have been modifications, that this Lease is in full force and effect as modified and stating the modifications, and, if there are any defenses, offsets, counterclaims, or defaults, setting them forth in reasonable detail); and the dates to which the Annual Rent, additional rent and other charges have been paid. Any such statement delivered pursuant to this Section 10.10 shall be in a form reasonably acceptable to and may be relied upon by any prospective purchaser or mortgagee of premises which include the Premises or any prospective assignee of any such mortgagee, or any permitted assignee or sublessee of Tenant. If Landlord fails to deliver such statement within ten (10) days of the written request from Tenant, Landlord shall not be deemed in default hereof unless Tenant provides a second notice to Landlord requesting the same, and Landlord fails to deliver the statement within ten (10) days of such second notice.
10.11 WAIVER OF SUBROGATION.
Any insurance carried by either party with respect to the Premises and property therein or occurrences thereon shall include a clause or endorsement denying to the insurer rights of subrogation against the other party to the extent rights have been waived by the insured prior to occurrences of injury or loss. Each party, notwithstanding any provisions of this Lease to the contrary, hereby waives any rights of recovery against the other for injury or loss due to hazards covered by insurance containing such clause or endorsement to the extent of the indemnification received thereunder or that would be covered by insurance required to be maintained hereunder (including self insurance), regardless of whether or not such required insurance is in effect.
10.12 ACTS OF GOD.
In any case where either party hereto is required to do any act, delays caused by or resulting from Acts of God, war, civil commotion, fire, flood or other casualty, labor difficulties, shortages of labor, materials or equipment, government regulations, unusually severe weather, or other causes beyond such party’s reasonable control shall not be counted in determining the time during which work shall be completed, whether such time be designated by a fixed date, a fixed time or a “reasonable time,” and such time shall be deemed to be extended by the period of such delay. Nothing contained in this Section 10.12 shall affect Tenant’s termination rights under Article VII.
10.13 BROKERAGE.
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Tenant and Landlord represent and warrant that they dealt with no brokers in connection with this transaction other than the Broker and agree to defend, with counsel approved by the other, indemnify and save the other harmless from and against any and all cost, expense or liability for any compensation, commissions or charges claimed by a broker or agent, other than the Broker in connection with this Lease. Landlord hereby agrees to pay the brokerage fees to the Broker in connection with the execution and delivery of this Lease.
10.14 SUBMISSION NOT AN OFFER.
The submission of a draft of this Lease or a summary of some or all of its provisions does not constitute an offer to lease or demise the Premises, it being understood and agreed that neither Landlord nor Tenant shall be legally bound with respect to the leasing of the Premises unless and until this Lease has been executed by both Landlord and Tenant and a fully executed copy has been delivered to each of them.
10.15 APPLICABLE LAW AND CONSTRUCTION.
This Lease shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. If any term, covenant, condition or provision of this Lease or the application thereof to any person or circumstances shall be declared invalid or unenforceable by the final ruling of a court of competent jurisdiction having final review, the remaining terms, covenants, conditions and provisions of this Lease and their application to persons or circumstances shall not be affected thereby and shall continue to be enforced and recognized as valid agreements of the parties, and in the place of such invalid or unenforceable provision, there shall be substituted a like, but valid and enforceable provision which comports to the findings of the aforesaid court and most nearly accomplishes the original intention of the parties.
There are no oral or written agreements between Landlord and Tenant affecting this Lease. This Lease may be amended, and the provisions hereof may be waived or modified, only by instruments in writing executed by Landlord and Tenant.
The titles of the several Articles and Sections contained herein are for convenience only and shall not be considered in construing this Lease.
Unless repugnant to the context, the words “Landlord” and “Tenant” appearing in this Lease shall be construed to mean those named above and their respective heirs, executors, administrators, successors and assigns, and those claiming through or under them respectively. If there be more than one tenant, the obligations imposed by this Lease upon Tenant shall be joint and several.
10.16 AUTHORITY.
Tenant represents and warrants to Landlord (which representations and warranties shall survive the delivery of this Lease) that: (a) Tenant (i) is duly organized, validly existing and in good standing under the laws of its state of incorporation, (ii) has the corporate power and authority to carry on businesses now being conducted and is qualified to do business in every jurisdiction where such qualification is necessary and (iii) has the corporate power to execute and deliver and perform its obligations under this Lease and (b) the execution, delivery and performance by
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Tenant of its obligations under this Lease have been duly authorized by all requisite corporate action and will not violate any provision of law, any order of any court or other agency of government, the corporate charter or by-laws of the Tenant or any indenture, agreement or other instrument to which it is a party or by which it is bound.
Landlord represents and warrants to Tenant (which representations and warranties shall survive the delivery of this Lease) that: (a) Landlord (i) is duly organized, validly existing and in good standing under the law of its state of organization, (ii) has the power and authority to carry on businesses now being conducted and is qualified to do business in every jurisdiction where such qualification is necessary and (iii) has the power to execute and deliver and perform its obligations under this Lease and (b) the execution, delivery and performance by Landlord of its obligations under this Lease have been duly authorized by all requisite action and will not violate any provision of law, any order of any court or other agency of government, the partnership agreement of the Landlord or any indenture, agreement or other instrument to which it is a party or by which it is bound.
ARTICLE XI. SECURITY DEPOSIT
Simultaneously with Tenant’s delivery of the executed Lease to Landlord, Tenant will deliver to Landlord the Security Deposit in the form of a letter of credit in the amount of the Security Deposit and in conformity with the provisions set forth below (the “Letter of Credit”), which Security Deposit shall be held by Landlord, as security, without interest, for and during the Term, and which Security Deposit shall be returned to Tenant at the termination of this Lease, provided there exists no. default of Tenant under the provisions of this Lease. The Letter of Credit shall be an irrevocable and unconditional standby documentary letter of credit in the amount of the Security Deposit issued by a institution satisfactory to Landlord in its reasonable discretion, naming Landlord, its successors and assigns as the beneficiary, assignable to a successor or assignee at no cost to Landlord or such successor or assignee, expiring no less than one (1) year from the Term Commencement Date and renewing automatically each year (or at the end of the applicable term thereof) unless the issuing bank has given Landlord notice at least forty-five (45) days prior to the expiration that the same will not be renewed, and otherwise in form and substance reasonably acceptable to Landlord. Landlord shall be permitted to draw upon the Letter of Credit in the event of (i) default by Tenant in any of its obligations hereunder after the giving of any required notice and the expiration of any applicable cure period, in which event Landlord may draw upon all or a portion of the Letter of Credit and apply the proceeds as described below, or (ii) failure by Tenant to provide to Landlord a replacement or substitute Letter of Credit in the amount of Security Deposit, and otherwise subject to the conditions set forth above, no less than thirty (30) days prior to the expiration date of the Letter of Credit then held by Landlord, in which event Landlord may draw upon all of the Letter of Credit and use the same to satisfy any unfulfilled obligation of Tenant under the Lease, without any obligation to segregate such funds or to account for them to Tenant, Tenant acknowledging that in such circumstance it shall have no right whatsoever to such proceeds. Such failure to provide a replacement or substitute Letter of Credit to Landlord no less than thirty (30) days prior to the expiration date of the Letter of Credit then held by Landlord shall be an event of default hereunder. Notwithstanding any other provision hereof to the contrary, the Letter of Credit or any substitute therefor, as the same may be automatically renewed as provided herein, shall
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expire no sooner than thirty (30) days after the scheduled expiration of the Term, as the same may be extended.
The Security Deposit is being delivered by Tenant to Landlord as security for the faithful performance and observance by Tenant of the terms, provisions and conditions of this Lease. It is understood and agreed that if any default by Tenant occurs hereunder and continues after the giving of any required notice and the expiration of any applicable cure period, Landlord may use, apply or retain the whole or any part of the Security Deposit so deposited to the extent required to cure such default or for payment of any sum as to which Tenant is in such default, if any, or for any sum which Landlord may expend or may be required to expend by reason of any such default by Tenant hereunder, if any. It is agreed that Landlord shall always have the right to apply the Security Deposit or any part thereof, as aforesaid, without prejudice to any other remedy or remedies which Landlord may have, or Landlord may pursue any other such remedy or remedies in lieu of applying the Security Deposit. If all or any part of the Security Deposit is applied to an obligation of Tenant hereunder, Tenant shall immediately upon request by Landlord restore the Security Deposit to its original amount. Tenant shall not have the right to call upon Landlord to apply all or any part of the Security Deposit to cure any default or fulfill any obligation of Tenant, but such use shall be solely in the discretion of Landlord. Upon any conveyance by Landlord of its interest under this Lease, the Security Deposit may be delivered by Landlord to Landlord’s grantee or transferee. Upon any delivery, Tenant hereby releases Landlord herein named of any and all liability with respect to such Security Deposit and agrees to look solely to such grantee or transferee. It is further understood that this provision shall also apply to subsequent grantees and transferees.
ARTICLE XII. ERISA MATTERS
Tenant acknowledges that it has been advised that an affiliate of the Landlord is a collective investment fund (the “Fund”) which holds the assets of one or more employee benefit plans or retirement arrangements which are subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and/or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) (each a “Plan”), and with respect to which JPMorgan Chase Bank, N.A. (“JPMCB”) is the Trustee and that, as a result, Landlord may be prohibited by law from engaging in certain transactions.
Landlord hereby represents and warrants to Tenant that, as of the date hereof, the only Plans whose assets are invested in the Fund which, together with the interests of any other Plans maintained by the same employer or employee organization, represent a collective interest in the Fund in excess of ten percent (10%) of the total interests in the Fund (each, a “10% Plan”) are referenced on Exhibit G (collectively, the “Existing 10% Plans”) hereto.
Tenant represents and warrants that as of the date hereof, and at all times while it is a Tenant under this Lease, one of the following statements is, and will continue to be, true: (1) Tenant is not a “party in interest” (as defined in Section 3(14) of ERISA) or a “disqualified person” (as defined in Section 4975 of the Code) (each a “Party in Interest”) with respect to the Existing 10% Plans or, (2) if Tenant is a Party in Interest, that:
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neither Tenant nor its “affiliate” (as defined in Section V(c) of PTCE 84-14, “Affiliate”) has, or during the immediately preceding one (1) year has, exercised the authority to either: (i) appoint or terminate JPMCB as the qualified professional asset manager (as defined in Section V(a) of PTCE 84-14, “QPAM”) of any of the assets of the Existing 10% Plan with respect to which Tenant or its Affiliate is a Party in Interest; or (ii) negotiate the terms of the management agreement with JPMCB, including renewals or modifications thereof, on behalf of the Existing 10% Plan; and
neither Tenant nor any entity controlling, or controlled by, Tenant owns a five percent (5%) or more interest (within the meaning of PTCE 84-14, “5% Interest”) in J.P. Morgan Chase & Co.
If Landlord or the Fund notifies Tenant in writing that a Plan other than the Existing 10% Plan may become a 10% Plan, Tenant will, within 10 days of such notification, inform the Fund in writing as to whether it can make the representations in clause (i) or (ii) of subsection (c) of this Section with respect to such prospective 10% Plan. Thereafter, if based on such representations made by Tenant such Plan becomes a 10% Plan, Tenant represents and warrants that, at all times during the period Tenant is a tenant under the Lease, the statements set forth in clause (i) or (ii) of subsection (c) will be true with respect to such 10% Plan.
In the event that Tenant becomes aware that any statement in subsection (c) is no longer true with respect to a 10% Plan, Tenant will immediately notify Landlord, and Tenant will cooperate with Landlord and/or the Fund in its efforts to take whatever action is necessary under ERISA to rectify the situation.
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EXECUTED as a sealed instrument in two or more counterparts on the day and year first above written.
LANDLORD: |
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CAMBRIDGEPARK 125 REALTY CORPORATION |
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By:/s/ T. Sanford Monaghan |
Name: T. Sanford Monaghan |
Title: CCIM, Vice President |
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TENANT: |
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ADVANCED MAGNETICS, INC. |
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By: /s/ Joseph L. Farmer Esq. |
Name: Joseph L. Farmer Esq. |
Title: General Counsel & Vice President of Legal Affairs |
Hereunto duly authorized |
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EXHIBIT A
Description of Lot
.
A-1
This Exhibit is a description of the parcel of land on which the building is located. This Exhibit has been omitted and will be furnished to the SEC upon request.
A-2
EXHIBIT A-1
Site Plan
[Exhibit follows this page]
A-1-1
This Exhibit is a Site Plan indicating parking areas. This Exhibit has been omitted and will be furnished to the SEC upon request.
A-1-2
EXHIBIT B
Plan Showing Premises
[Exhibit follows this page]
B-1
This Exhibit is a Plan showing the Premises, located on the sixth (6th) floor of the Building. This Exhibit has been omitted and will be furnished to the SEC upon request.
B-2
EXHIBIT C
COMMENCEMENT DATE AGREEMENT
The undersigned, parties to a Lease between them dated _______________, 2006, [notice of which is recorded in the Middlesex South Registry of Deeds in Book __, Page __,] for premises at 125 CambridgePark Drive, Cambridge, Massachusetts, consisting of approximately 8,230 square feet of Rentable Floor Area on the sixth (6th) floor as shown on Exhibit B hereto, hereby agree, pursuant to the Lease, that the Term Commencement Date for the Premises as defined in the Lease, is February 27, 2006, and that the Term shall expire on February 28, 2009, unless extended as provided therein and set forth in said notice of the Lease, or unless sooner terminated as provided therein.
Executed as a sealed instrument on the _____ day of _________, 2006.
LANDLORD: |
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CAMBRIDGEPARK 125 REALTY CORPORATION |
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By:____________________ |
Name: |
Title: |
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TENANT: |
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ADVANCED MAGNETICS, INC. |
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By:____________________ |
Name: |
Title: |
Hereunto duly authorized |
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C-1
EXHIBIT D
Landlord’s Work
1. | New carpets, tiles and paint (tiles in kitchen, bathroom and IT closet; carpet in large file room and all closets). |
2. | Touch up and refinish oak ledges on windows. | |
3. | Put coat hanger rods in all closets, including the large closet in the back. |
4. | Install full length vertical blinds in conference room on window looking out toward common hallway/atrium. |
5. | Glass on two sides of conference room behind reception area. |
6. | Remove wall to create 1 office out of two. |
7. | Replace countertop and cabinetry in kitchen. |
8. | Remove half-height wall at secretary station and install one new outlet to replace the one going away as a result of demo of wall. |
All in accordance with Building standard specifications.
D-1-1
EXHIBIT E
Landlord’s Services
| | | 1. | | All cleaning work will be performed between 8 a.m. and 12 midnight, Monday through Friday, unless otherwise necessary for stripping, waxing, etc. |
| | | 2. | | Abnormal waste removal (e.g., computer installation paper, bulk packaging, wood or cardboard crates, refuse from cafeteria operation, etc.) shall be Tenant’s responsibility. |
| | B. | | Daily Operations (5 times per week) |
| | | | a. | | Empty and clean all waste receptacles; wash receptacles as necessary. |
| | | | b. | | Vacuum all rugs and carpeted areas. |
| | | | c. | | Empty, damp-wipe and dry all ashtrays. |
| | | | a. | | Sweep and wash floors with disinfectant. |
| | | | b. | | Wash both sides of toilet seats with disinfectant. |
| | | | c. | | Wash all mirrors, basins, bowls, urinals. |
| | | | d. | | Spot clean toilet partitions. |
| | | | e. | | Empty and disinfect sanitary napkin disposal receptacles. |
| | | | f. | | Refill toilet tissue, towel, soap, and sanitary napkin dispensers. |
| | | | a. | | Wipe down entrance doors and clean glass (interior and exterior). |
| | | | b. | | Vacuum elevator carpets and wipe down doors and walls. |
| | C. | | Operations as Needed (but not less than every other day) |
| | | 1. | | Tenant and Public Areas |
| | | | a. | | Buff all resilient floor areas. |
| | | 1. | | Tenant Areas, Lavatories, Public Areas |
E-1
| | | | a. | | Hand-dust and wipe clean all horizontal surfaces with treated cloths to include furniture, office equipment, window sills, door ledges, chair rails, baseboards, convector tops, etc., within normal reach. |
| | | | b. | | Remove finger marks from private entrance doors, light switches, and doorways. |
| | | 1. | | Tenant and Public Areas |
| | | | a. | | Thoroughly vacuum seat cushions on chairs, sofas, etc. |
| | | | b. | | Vacuum and dust grillwork. |
| | | | a. | | Wash down interior walls and toilet partitions. |
| | F. | | As Required and Weather Permitting Not More Often Than Twice Yearly |
| | | | a. | | Clean inside of all windows. |
| | | | b. | | Clean outside of all windows. |
| | | | a. | | Strip and wax all resilient tile floor areas. |
| II. | | HEATING, VENTILATING, AND AIR CONDITIONING |
| | | 1. | | Heating, ventilating, and air conditioning as required to provide reasonably comfortable temperatures for normal business day occupancy (excepting holidays); Monday through Friday from 8:00 a.m. to 6:00 p.m. and Saturday from 8:00 a.m. to 1:00 p.m. |
| | | 2. | | Maintenance of any additional or special air conditioning equipment and the associated operating cost will be at Tenant’s expense, which is currently estimated at $55 per hour. |
Hot water for lavatory purposes and cold water for drinking, lavatory and toilet purposes, and cold water for Tenant’s kitchen and Tenant’s hot water heater (Tenant is to supply hot water heater).
E-2
| IV. | | ELEVATORS (if Building is Elevatored) |
Elevators for the use of all tenants and the general public for access to and from all floors of the Building. Programming of elevators (including, but not limited to, service elevators) shall be as Landlord from time to time determines best for the Building as a whole.
| V. | | RELAMPING OF LIGHT FIXTURES |
Tenant will reimburse Landlord for the cost of lamps, ballasts and starters and the cost of replacing same within the Premises.
| VI. | | CAFETERIA AND VENDING INSTALLATIONS |
| | 1. | | Any space to be used primarily for lunchroom or cafeteria operation shall be Tenant’s responsibility to keep clean and sanitary, it being understood that Landlord’s approval of such use must be first obtained in writing. |
| | 2. | | Vending machines or refreshment service installations by Tenant must be approved by Landlord in writing and shall be restricted in use to employees and business callers. All cleaning necessitated by such installations shall be at Tenant’s expense. |
| | A. | | Landlord, at Landlord’s expense, shall furnish electrical energy required for lighting, electrical facilities, equipment, machinery, fixtures, and appliances used in or for the benefit of the Premises, in accordance with the provisions of the Lease of which this Exhibit is part. |
| | B. | | Tenant shall not, without prior written notice to Landlord in each instance, connect to the Building electric distribution system any fixtures, appliances or equipment other than normal office machines such as personal computers, desk-top calculators and typewriters, or any fixtures, appliances or equipment which Tenant on a regular basis operates beyond normal building operating hours. In the event of any such connection, Tenant agrees to an increase in the BASE ANNUAL ELECTRICITY CHARGE which will reflect the cost to Landlord of the additional electrical service to be furnished by Landlord, such increase to be effective as of the date of any such installation. If Landlord and Tenant cannot agree thereon, such amount shall be conclusively determined by a reputable independent electrical engineer or consulting firm to be selected by Landlord and paid equally by both parties, and the cost to Landlord will be included in Landlord’s Operating Costs provided in Section 4.2 hereof. |
| | C. | | Tenant’s use of electrical energy in the Premises shall not at any time exceed the capacity of any of the electrical conductors or equipment in or otherwise serving the Premises. In order to insure that such capacity is not exceeded and to avert |
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possible adverse effect upon the Building electric service, Tenant shall not, without prior written notice to Landlord in each instance, connect to the Building electric distribution system any fixtures, appliances or equipment which operate on a voltage in excess of 120 volts nominal or make any alteration or addition to the electric system of the Premises. Unless Landlord shall reasonably object to the connection of any such fixtures, appliances or equipment, all additional risers or other equipment required therefor shall be provided by Landlord, and the cost thereof shall be paid by Tenant upon Landlord’s demand. In the event of any such connection, Tenant agrees to an increase in the BASE ANNUAL ELECTRICITY CHARGE such increase to be effective as of the date of any such connection. If Landlord and Tenant cannot agree thereon, such amount shall be conclusively determined by a reputable independent electrical engineer or consulting firm to be selected by Landlord and paid equally by both parties, and the cost to Landlord will be included in Landlord’s Operating Costs provided in Section 4.2 hereof.
| | D. | | If at any time after the date of this Lease, the rates at which Landlord purchases electrical energy from the public utility supplying electric service to the Building, or any charges incurred or taxes payable by Landlord in connection therewith, shall be increased or decreased, the BASE ANNUAL ELECTRICITY CHARGE shall be increased or decreased, as the case may be, by an amount equal to the estimated increase or decrease, as the case may be, in Landlord’s cost of furnishing the electricity referred to in Paragraph A above as a result of such increase or decrease in rates, charges, or taxes. If Landlord and Tenant cannot agree thereon, such amount shall be conclusively determined by a reputable independent electrical engineer or consulting firm to be selected by Landlord and paid equally by both parties, and the cost to Landlord will be included in Landlord’s Operating Costs as provided in Section 4.2 hereof. Any such increase or decrease shall be effective as of the date of the increase or decrease in such rate, charge or taxes. |
| | E. | | Landlord may, at any time, elect to discontinue the furnishing of electrical energy. In the event of any such election by Landlord: (1) Landlord agrees to give reasonable advance notice of any such discontinuance to Tenant; (2) Landlord agrees to permit Tenant to receive electrical service directly from the public utility supplying service to the Building and to permit the existing feeders, risers, wiring and other electrical facilities serving the Premises to be used by Tenant and/or such public utility for such purpose to the extent they are suitable and safely capable; (3) Landlord agrees to pay such charges and costs, if any, as such public utility may impose in connection with the installation of Tenant’s meters and to make or, at such public utility’s election, to pay for such other installations as such public utility may require, as a condition of providing comparable electrical service to Tenant; and (4) Tenant shall thereafter pay, directly to the utility furnishing the same, all charges for electrical services to the Premises. |
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EXHIBIT F
Rules and Regulations
The following rules and regulations have been formulated for the safety and well-being of all tenants of the Building and to insure compliance with governmental and other requirements. Strict adherence to these rules and regulations is necessary to guarantee that each and every tenant will enjoy a safe and undisturbed occupancy of its premises in the Building. Any continuing violation of these rules and regulations by Tenant shall constitute a default by Tenant under the Lease.
Landlord may, upon request of any tenant, waive the compliance by such tenant of any of the following rules and regulations, provided that (i) no waiver shall be effective unless signed by Landlord’s authorized agent, (ii) any such waiver shall not relieve such tenant from the obligation to comply with such rule or regulation in the future unless otherwise agreed to by Landlord, (iii) no waiver granted to any tenant shall relieve any other tenant from the obligation of complying with these rules and regulations, unless such other tenant has received a similar written waiver from the Landlord, and (iv) any such waiver shall not relieve Tenant from any liability to Landlord for any loss or damage occasioned as a result of Tenant’s failure to comply with any rule or regulation
| 1. | The entrances, lobbies, passages, corridors, elevators, halls, courts, sidewalks, vestibules, and stairways shall not be encumbered or obstructed by Tenant, Tenant’s agents, servants, employees, licensees or visitors or used by them for any purposes other than ingress or egress to and from the Premises. Landlord shall have the right to control and operate portions of the Building and the facilities furnished for common use of the tenants in such manner as Landlord deems best for the benefit of the tenants generally. |
| 2. | The moving in or out of all safes, freight, furniture, or bulky matter of any description shall take place during the hours which Landlord may determine from time to time. Landlord reserves the right to inspect all freight and bulky matter to be brought into the Building and to exclude from the Building all freight and bulky matter which violates any of these Rules and Regulations or the Lease of which these Rules and Regulations are a part. Landlord reserves the right to have Landlord’s structural engineer review Tenant’s floor loads on the Premises at Tenant’s expense. |
| 3. | Tenant, or the employees, agents, servants, visitors or licensees of Tenant shall not at any time place waste or discard any rubbish, paper, articles, or objects of any kind whatsoever outside the doors of the Premises or in the corridors or passageways of the Building. No animals or birds (other than fish in a fish tank) shall be brought or kept in or about the Building. Bicycles shall not be permitted in the Building. |
| 4. | Tenant shall not place objects against glass partitions or doors or windows or adjacent to any common space which would be unsightly from the Building |
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corridors or from the exterior of the Building and will promptly remove the same upon notice from Landlord.
| 5. | Tenant shall not make noises, cause disturbances, create vibrations, odors (other than ordinarily acceptable tenant kitchen odors in the building) or noxious fumes or use or operate any electric or electrical devices or other devices that emit sound waves or are dangerous to other tenants and occupants of the Building or that would interfere with the operation of any device or equipment or radio or television broadcasting or reception from or within the Building or elsewhere, or with the operation of roads or highways in the vicinity of the Building, and shall not place or install any projections, antennae, aerials, or similar devices inside or outside of the Premises, without the prior written approval of Landlord. |
| 6. | Tenant may not (without Landlord’s approval therefor, which approval will be signified on Tenant’s Plans submitted pursuant to the Lease) and Tenant shall not permit or suffer anyone to: (a) cook in the Premises except as accessory to the use of a coffee room/kitchenette containing a microwave oven; (b) place vending or dispensing machines of any kind in or about the Premises; (c) at any time sell, purchase or give away, or permit the sale, purchase, or gift of food in any form. |
| 7. | Tenant shall not: (a) use the Premises for lodging, manufacturing or for any immoral or illegal purposes; (b) use the Premises to engage in the manufacture or sale of, or permit the use of spirituous, fermented, intoxicating or alcoholic beverages on the Premises; (c) use the Premises to engage in the manufacture or sale of, or permit the use of, any illegal drugs on the Premises. |
| 8. | No awning or other projections (including antennae) shall be attached to the outside walls or windows. No curtains, blinds, shades, screens or signs other than those furnished by Landlord shall be attached to, hung in, or used in connection with any window or door of the Premises without prior written consent of Landlord. |
| 9. | No signs, advertisement, object, notice or other lettering shall be exhibited, inscribed, painted or affixed on any part of the outside or inside of the Premises if visible from outside of the Premises. Interior signs on doors shall be painted or affixed for Tenant by Landlord or by sign painters first approved by Landlord at the expense of Tenant and shall be of a size, color and style acceptable to Landlord. |
| 10. | Tenant shall not use the name of the Building or use pictures or illustrations of the Building in advertising or other publicity without prior written consent of Landlord. Landlord shall have the right to prohibit any advertising by Tenant which, in Landlord’s opinion, tends to impair the reputation of the Building or its desirability for offices, and upon written notice from Landlord, Tenant will refrain from or discontinue such advertising. |
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| 11. | Door keys for doors in the Premises will be furnished at the Commencement of the Lease by Landlord. Tenant shall not affix additional locks on doors and shall purchase duplicate keys only from Landlord and will provide to Landlord the means of opening of safes, cabinets, or vaults left on the Premises. In the event of the loss of any keys so furnished by Landlord, Tenant shall pay to Landlord the cost thereof. Each tenant shall, upon the termination of its tenancy, restore to Landlord all keys of offices, storage and toilet rooms either furnished to, or otherwise procured by, such tenant. |
| 12. | Tenant shall cooperate and participate in all security programs affecting the Building. |
| 13. | Tenant assumes full responsibility for protecting its space from theft, robbery and pilferage, which includes keeping doors locked and other means of entry to the Premises closed and secured. |
| 14. | Tenant shall not make any room-to-room canvass to solicit business from other tenants in the Building, and shall not exhibit, sell or offer to sell, use, rent or exchange any item or services in or from the Premises unless ordinarily embraced within Tenant’s use of the Premises as specified in its Lease. Canvassing, soliciting and peddling in the Building are prohibited and Tenant shall cooperate to prevent the same. Peddlers, solicitors and beggars shall be reported to the Management Office. |
| 15. | Tenant shall not mark, paint, drill into, or in any way deface any part of the Building or Premises. No boring, driving of nails or screws (except for picture hanging, etc.), cutting or stringing of wires shall be permitted, except with the prior written consent of Landlord, and as Landlord may direct. Tenant shall not construct, maintain, use or operate within their respective premises any electrical device, wiring or apparatus in connection with a loud speaker system or other sound system, except as reasonably required as part of a communication system approved in writing by Landlord, prior to the installation thereof. Tenant shall not install any resilient tile or similar floor covering in the Premises except with the prior written approval of Landlord. The use of cement or other similar adhesive material is expressly prohibited. |
| 16. | Tenant shall not waste electricity or water and agrees to cooperate fully with Landlord to assure the most effective operation of the Building’s heating and air conditioning and shall refrain from attempting to adjust controls. Tenant shall keep corridor doors closed except when being used for access. |
| 17. | The water and wash closets and other plumbing fixtures shall not be used for any purposes other than those for which they were constructed, and no sweepings, rubbish, rags, or other substances shall be thrown therein. All damage resulting from misuse of said fixtures shall be borne by the tenant who, or whose servant, employees, agents, licensees, invitees, customers or guests shall have caused the same. |
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| 18. | Building employees shall not be required to perform, and shall not be requested by any tenant or occupant to perform, any work outside of their regular duties, unless under specific instructions from the office of the Managing Agent of the Building. The requirements of tenants will be attended to only upon application to Landlord, and any special requirements shall be billed to Tenant (and paid when the next installment of rent is due) in accordance with the schedule of charges maintained by Landlord from time to time or at such charge as is agreed upon in advance by Landlord and Tenant. |
| 19. | Tenant may request heating and/or air conditioning during other periods in addition to normal working hours by submitting its request in writing to the office of the Managing Agent of the Building no later than 2:00 p.m. the preceding work day (Monday through Friday) on forms available from the office of the Managing Agent. The request shall clearly state the start and stop hours of the “off-hour” service. Tenant shall submit to the Building Manager a list of personnel authorized to make such request. The Tenant shall be charged for such operation in the form of additional rent; such charges are to be determined by the Managing Agent and shall be fair and reasonable and reflect the additional operating costs involved. |
| 20. | Tenant covenants and agrees that its use of the Premises shall not cause a discharge of more than the gallonage per foot of Premises Design Floor Area per day of sanitary (non-industrial) sewage allowed under the sewage discharge permit for the Building. Discharges in excess of that amount, and any discharge of industrial sewage, shall only be permitted if Tenant, at its sole expense, shall have obtained all necessary permits and licenses therefor, including without limitation permits from state and local authorities having jurisdiction thereof. Tenant shall submit to Landlord on December 31 of each year of the Term of this Lease a statement, certified by an authorized officer of Tenant, which contains the following information: name of all chemicals, gases, and hazardous substances, used, generated, or stored on the Premises; type of substance (liquid, gas or granular); quantity used, stored or generated per year; method of disposal; permit number, if any, attributable to each substance, together with copies of all permits for such substances; and permit expiration date for each substance. No flammable, combustible or explosive fluid, chemical or substance shall be brought into or kept upon the Premises, the Building or the Lot (other than those fluids or chemicals customarily used by tenants of other first-class office buildings in connection with office purposes and then only those types and quantities permitted under Landlord’s policies of insurance for the Building). |
| 21. | Landlord reserves the right to exclude from the Building at all times any person who is not known or does not properly identify himself to the Building management. Landlord may, at its option, require all persons admitted to or leaving the Building between the hours of 6:00 p.m. and 8:00 a.m., Monday through Friday, and at any hour on Saturdays, Sundays and legal holidays, to register. Each tenant shall be responsible for all persons for whom it authorizes |
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entry into the Building, and shall be liable to Landlord for all acts or omissions of such persons.
| 22. | 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 these rules and regulations. There shall not be used in any space or in the common halls of the Building, either by any tenant or by jobbers or others in the delivery or receipt of merchandise, any hand trucks, except those equipped with rubber tires and side guards. |
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EXHIBIT G
Existing 10% Plans
1. | General Motors Hourly - Rate Employees Pension Plan |
2. | General Motors Retirement Program for Salaried Employees |
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