LEASE
BETWEEN
REPLIGEN CORPORATION, AS TENANT
AND
WEST SEYON LLC, AS LANDLORD
35 SEYON STREET, WALTHAM, MASSACHUSETTS
The submission of an unsigned copy of this document to Tenant for Tenant's
consideration does not constitute an offer to lease the Premises or an option to
or for the Premises. This document shall become effective and binding only upon
the execution and delivery of this Lease by both Landlord and Tenant.
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 BASIC DATA; DEFINITIONS......................................1
1.1 Basic Data...................................................1
1.2 Definitions..................................................3
1.3 Enumeration of Exhibits......................................6
ARTICLE 2 PREMISES AND APPURTENANT RIGHTS..............................7
2.1 Lease of Premises............................................7
2.2 Appurtenant Rights and Reservations..........................7
2.3 Tenant's Parking Areas.......................................7
2.4 Option to Extend.............................................8
2.5 Right of First Offer.........................................9
ARTICLE 3 BASIC RENT..................................................10
3.1 Payment.....................................................10
ARTICLE 4 COMMENCEMENT AND CONDITION..................................10
4.1 Base Building Work; Commencement Date.......................10
4.2 Tenant's Work...............................................11
4.3 Condition; Landlord's Warranty..............................13
4.4 Rent Credit.................................................13
ARTICLE 5 USE OF PREMISES.............................................14
5.1 Permitted Use...............................................14
5.2 Installations and Alterations by Tenant.....................16
5.3 Extra Hazardous Use.........................................17
5.4 Hazardous Materials.........................................18
ARTICLE 6 ASSIGNMENT AND SUBLETTING...................................19
6.1 Prohibition.................................................19
6.2 Acceptance of Rent..........................................21
6.3 Intentionally Omitted.......................................21
6.4 Landlord's Recapture Right..................................22
6.5 Further Requirements........................................22
ARTICLE 7 RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES;
SERVICES TO BE FURNISHED BY LANDLORD........................23
7.1 Landlord Repairs............................................23
7.2 Tenant Repairs..............................................23
7.3 Floor Load - Heavy Machinery................................24
7.4 Utility Services............................................24
(i)
7.5 Other Services..............................................24
7.6 Interruption of Service.....................................25
ARTICLE 8 REAL ESTATE TAXES...........................................27
8.1 Payments on Account of Real Estate Taxes....................27
8.2 Abatement...................................................28
ARTICLE 9 OPERATING AND UTILITY EXPENSES..............................28
9.1 Definitions.................................................28
9.2 Tenant's Payment of Operating Expenses......................29
9.3 Utility Payments............................................30
ARTICLE 10 INDEMNITY AND PUBLIC LIABILITY INSURANCE....................30
10.1 Tenant's Indemnity..........................................30
10.2 Tenant Insurance............................................31
10.3 Tenant's Risk...............................................31
10.4 Waiver of Subrogation.......................................32
ARTICLE 11 FIRE, EMINENT DOMAIN, ETC...................................32
11.1 Landlord's Right of Termination.............................32
11.2 Restoration; Tenant's Right of Termination..................33
11.3 Landlord's Insurance........................................33
11.4 Abatement of Rent...........................................33
11.5 Condemnation Award..........................................34
ARTICLE 12 HOLDING OVER; SURRENDER.....................................34
12.1 Holding Over................................................34
12.2 Surrender of Premises.......................................34
ARTICLE 13 RIGHTS OF MORTGAGEES; TRANSFER OF TITLE.....................35
13.1 Rights of Mortgagees........................................35
13.2 Assignment of Rents and Transfer of Title...................36
13.3 Notice to Mortgagee.........................................36
ARTICLE 14 DEFAULT; REMEDIES...........................................37
14.1 Tenant's Default............................................37
14.2 Landlord's Remedies.........................................40
14.3 Additional Rent.............................................41
14.4 Remedying Defaults..........................................42
14.5 Remedies Cumulative.........................................42
14.6 Enforcement Costs...........................................42
14.7 Waiver......................................................42
14.8 Security Deposit............................................43
14.9 Landlord's Default..........................................45
(ii)
ARTICLE 15 MISCELLANEOUS PROVISIONS....................................45
15.1 Rights of Access............................................45
15.2 Covenant of Quiet Enjoyment.................................45
15.3 Landlord's Liability........................................45
15.4 Estoppel Certificate........................................46
15.5 Brokerage...................................................46
15.6 Rules and Regulations.......................................46
15.7 Invalidity of Particular Provisions.........................47
15.8 Provisions Binding, Etc.....................................47
15.9 Recording...................................................47
15.10 Notice......................................................47
15.11 When Lease Becomes Binding; Entire Agreement; Modification..48
15.12 Paragraph Headings and Interpretation of Sections...........48
15.13 Dispute Resolution..........................................48
15.14 Waiver of Jury Trial........................................49
15.15 Time Is of the Essence......................................49
15.16 Multiple Counterparts.......................................49
15.17 Governing Law...............................................49
EXHIBIT A Location Plan of Premises
EXHIBIT B Site Plan of Building
EXHIBIT C Commencement Date Letter
EXHIBIT D Operating Expenses
EXHIBIT E Rules and Regulations of Building
EXHIBIT F Parking Areas
EXHIBIT G Base Building Plans
EXHIBIT H Form Letter of Credit
EXHIBIT I Tenant's Approved Hazardous Materials
EXHIBIT J Notice of Lease
EXHIBIT K Alterations to be Retained by Tenant
EXHIBIT L Environmental Reports
EXHIBIT M Tenant's Exterior Signage
EXHIBIT N Tenant's Layout Plan
(iii)
L E A S E
THIS LEASE is dated as of October 10, 2001, between the Landlord and the
Tenant named below, and is of space in the Building described below.
ARTICLE 1
BASIC DATA; DEFINITIONS
1.1 Basic Data. Each reference in this Lease to any of the following terms
shall be construed to incorporate the data for that term set forth in this
Section:
Landlord: West Seyon LLC, a Delaware limited liability company
Landlord's Address: c/o Saracen Development, 7 Wells Avenue, Newton, MA
02459
Tenant: Repligen Corporation, a Delaware Corporation
Tenant's Address: Prior to the Commencement Date, 117 Fourth Avenue,
Needham, Massachusetts, 02494, and from and after the Commencement Date, at the
Premises.
Guarantor: N/A
Property: The land located in Waltham, Massachusetts on the west side of
Seyon Street, together with the Building and other improvements thereon, along
with the South Parking Lot, constituting a portion of the mixed-use complex
known as iPark, all as shown on the site plan attached hereto as Exhibit B.
Property Rentable Area: Agreed to be 600,000 square feet.
Building: The one-story building commonly known and numbered as 35 Seyon
Street, shown on the site plan attached hereto as Exhibit B.
Building Rentable Area: Agreed to be 250,000 square feet.
Premises: The portion of the Building shown on the location plan attached
hereto as Exhibit A.
Premises Rentable Area: Agreed to be 24,468 square feet.
Basic Rent: The Basic Rent is as follows:
- -------------------------------------------- ----------- -----------
ANNUAL BASIC MONTHLY
RENTAL PERIOD RENT PAYMENT
- -------------------------------------------- ----------- -----------
From the Rent Commencement Date
through the end of Lease Year 2 $330,318.00 $ 27,526.50
- -------------------------------------------- ----------- -----------
Lease Years 3 through 5 $379,254.00 $ 31,604.50
- -------------------------------------------- ----------- -----------
Lease Years 6 through 7 $403,722.00 $ 33,643.50
- -------------------------------------------- ----------- -----------
Lease Years 8 through 10 $428,190.00 $ 35,682.50
- -------------------------------------------- ----------- -----------
Tenant's Proportionate Share: 4.1% (which is based on the ratio of (a)
Premises Rentable Area to (b) Property Rentable Area ).
Security Deposit: $ 500,000.00, to be held, reduced and disposed of as
provided in Section 14.8.
Rent Commencement Date: One hundred twenty days after the Commencement
Date.
Term: The period of time commencing on the Commencement Date and expiring
at the close of the day immediately preceding the tenth anniversary of the Rent
Commencement Date, except that if the Rent Commencement Date is other than the
first day of a calendar month, the expiration of the Term shall be at the close
of the last day of the calendar month in which such anniversary falls. The Term
shall include any extension thereof that is expressly provided for by this Lease
and that is effected strictly in accordance with this Lease; if no extension of
the Term is expressly provided for by this Lease, no right to extend the Term
shall be implied by this provision.
Initial General Liability Insurance: $3,000,000 per occurrence/$5,000,000
aggregate (combined single limit) for property damage, bodily injury or death.
Permitted Uses: Executive and general offices, and laboratory and
manufacturing space in connection with Tenant's business.
Landlord's Contribution: $100,000.00 to be used by Tenant for interior
improvements to the Premises. Landlord shall also contribute the lesser of (i)
$10,000.00, or (ii) the cost for Tenant to perform the slab preparation being
requested by Resicon USA.
Landlord's Construction Representative: Joseph Mazzola
Tenant's Construction Representative: H. Randolph Lewis, AIA of Olson,
Lewis & Dioli Architects and Planners, Inc.
Tenant's Estimated Contribution: $1,400,000.00
2
1.2 Definitions. When used in Lease, the capitalized terms set forth below
shall bear the meanings set forth below.
Adequate Assurance: As defined in Section 14.1.
Adequate Assurance of Future Performance: As defined in Section 14.1.
Additional Rent: All charges and sums payable by Tenant as set forth in
this Lease, other than and in addition to Basic Rent.
Alterations: As defined in Section 5.2.
Bankruptcy Code: As defined in Section 14.1.
Base Building Plans: As defined in Section 4.1.
Base Building Work: As defined in Section 4.1.
Base Building Substantial Completion Date: As defined in Section 4.1.
Basic Rent: As defined in Section 1.1.
Broker: Landlord's Broker and Tenant's Broker.
Building: As defined in Section 1.1.
Building Rentable Area: As defined in Section 1.1.
Business Day: All days except Saturdays, Sundays, New Year's Day, Martin
Luther King Day, Memorial Day, Presidents Day, Independence Day, Labor Day,
Columbus Day, Veteran's Day, Thanksgiving Day, Christmas Day (and the following
day when any such day occurs on Sunday).
Commencement Date: As defined in Section 4.1.
Common Facilities: As defined in Section 2.2.
Common Facilities Base Building Work: As defined in Section 4.1.
Environmental Condition: Any disposal, release or threat of release of
Hazardous Materials on, from or about the Building or the Property or storage of
Hazardous Materials on, from or about the Building or the Property.
3
Environmental Laws: Any federal, state and/or local statute, ordinance,
bylaw, code, rule and/or regulation now or hereafter enacted, pertaining to any
aspect of the environment or human health, including, without limitation,
Chapter 21C, Chapter 21D, and Chapter 21E of the General Laws of Massachusetts
and the regulations promulgated by the Massachusetts Department of Environmental
Protection, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C.ss.9601 et seq., the Resource Conservation and Recovery
Act of 1976, 42 U.S.C.ss.6901 et seq., the Toxic Substances Control Act, 15
U.S.C.ss.2061 et seq., the Federal Clean Water Act, 33 U.S.C.ss.1251, and the
Federal Clean Air Act, 42 U.S.C.ss.7401 et seq.
Escalation Charges: The Additional Rent arising pursuant to Article 8 and
Article 9 of this Lease.
Essential Services: As defined in Section 7.6.
Event of Bankruptcy: As defined in Section 14.1.
Event of Default: As defined in Section 14.1.
Force Majeure: Collectively and individually, strikes or other labor
trouble (other than any such strikes or labor trouble caused by or arising as a
result of Landlord's labor practices at the Property), fire or other casualty,
acts of God, governmental preemption of priorities or other controls in
connection with a national or other public emergency or shortages of fuel,
supplies or labor resulting therefrom, or any other cause, whether similar or
dissimilar, beyond the reasonable control of the party required to perform an
obligation.
Guarantor: As defined in Section 1.1.
Holder: As defined in Section 13.1.
Hazardous Materials: Shall mean each and every element, compound, chemical
mixture, contaminant, pollutant, material, waste or other substance which is
defined, determined or identified as hazardous or toxic under any Environmental
Law, including, without limitation, any "oil," "hazardous material," "hazardous
waste," "hazardous substance" or "chemical substance or mixture", as the
foregoing terms (in quotations) are defined in any Environmental Laws.
Initial General Liability Insurance: As defined in Section 1.1.
Land: The land that constitutes the Property.
Landlord: As defined in Section 1.1.
Landlord's Broker: Insignia/ESG.
4
Landlord's Construction Representative: As defined in Section 1.1.
Landlord's Contribution: As defined in Section 1.1.
Landlord's Address: As defined in Section 1.1.
Lease Year: Means each period of one (1) year during the Term commencing on
the Commencement Date or on any anniversary thereof, except that the first Lease
Year shall consist of the period from the Commencement Date to the Rent
Commencement Date, and any remaining partial calendar month following the Rent
Commencement Date, and the succeeding twelve (12) full calendar months, and each
succeeding Lease Year shall consist of each succeeding twelve (12) month period
thereafter.
Management Fee: $.70 per rentable square foot.
Mortgage: As defined in Section 13.1.
Operating Expenses: As defined in Section 9.1.
Operating Year: As defined in Section 9.1.
Permitted Uses: As defined in Section 1.1.
Plans: As defined in Section 4.2.
Premises: As defined in Section 1.1.
Premises Base Building Work: As defined in Section 4.1.
Premises Rentable Area: As defined in Section 1.1.
Property: As defined in Section 1.1.
Recapture Date: As defined in Section 6.4.
Rent Commencement Date: As defined in Section 1.1.
Rules and Regulations : As defined in Section 2.2.
Security Deposit: As defined in Section 1.1.
Service Interruption: As defined in Section 7.6.
Substantial Completion Date: As defined in Section 4.2.
5
Successor: As defined in Section 13.1.
Taxes: As defined in Section 8.1.
Tax Year: As defined in Section 8.1.
Tenant: As defined in Section 1.1.
Tenant's Address: As defined in Section 1.1.
Tenant's Broker: Insignia/ESG
Tenant's Building Proportionate Share: As defined in Section 1.1.
Tenant's Construction Representative: As defined in Section 1.1.
Tenant's Delay: As defined in Section 4.4.
Tenant's Plans: As defined in Section 4.2.
Tenant's Property Proportionate Share: As defined in Section 1.1.
Tenant's Removable Property: As defined in Section 5.2.
Tenant's Work: As defined in Section 4.2.
Term: As defined in Section 1.1.
1.3 Enumeration of Exhibits. The following Exhibits are a part of this
Lease, are incorporated herein by reference attached hereto, and are to be
treated as a part of this Lease for all purposes. Undertakings contained in such
Exhibits are agreements on the part of Landlord and Tenant, as the case may be,
to perform the obligations stated therein.
Exhibit A - Location Plan of the Premises
Exhibit B - Site Plan of Buildings
Exhibit C - Commencement Date Letter
Exhibit D - Operating Expenses
Exhibit E - Rules and Regulations
Exhibit F - Parking Areas
Exhibit G - Base Building Plans
Exhibit H - Form Letter of Credit
Exhibit I - Tenant's Approved Hazardous Materials
Exhibit J - Notice of Lease
Exhibit K - Alterations to be Retained by Tenant
Exhibit L - Environmental Reports
6
Exhibit M - Tenant's Exterior Signage
Exhibit N - Tenant's Layout Plan
ARTICLE 2
PREMISES AND APPURTENANT RIGHTS
2.1 Lease of Premises. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the Premises for the Term and upon the terms and conditions
hereinafter set forth.
2.2 Appurtenant Rights and Reservations.
(a) Tenant shall have, as appurtenant to the Premises, the
non-exclusive right to use, and permit its invitees to use in common with
Landlord and others, public or common lobbies, restrooms, hallways,
stairways, elevators and walkways within the Building, as well as the
access roads, driveways, parking areas, loading areas, pedestrian
sidewalks, landscaped areas, trash enclosures, recreation areas and other
areas or facilities, if any, which are located in or on the Property and
designated by Landlord from time to time for the non-exclusive use of
tenants and other occupants of the Building (the "Common Facilities"); but
such rights shall always be subject to reasonable rules and regulations
from time to time established by Landlord pursuant to Section 15.7 (the
"Rules and Regulations") and to the right of Landlord to designate and
change from time to time areas and facilities so to be used, provided
Tenant always has at least one reasonable means of access to the Premises.
(b) Excepted and excluded from the Premises and the Common Facilities
are the ceiling, floor, perimeter walls and exterior windows (except the
inner surface of each thereof), and any space in the Premises used for
shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities, but the entry doors (and
related glass and finish work) to the Premises are a part thereof. Landlord
shall have the right to place in the Premises (but in such manner and
location as to reduce to a minimum interference with Tenant's use of the
Premises and provided such placement shall not reduce the usable area of
the Premises) utility lines, equipment, stacks, pipes, conduits, ducts and
the like. In the event that Tenant shall install any hung ceilings or walls
in the Premises, Tenant shall install and maintain, as Landlord may
reasonably require, proper access panels therein to afford access to any
facilities above the ceiling or within or behind the walls. Tenant shall be
entitled to install any such ceilings or walls only in compliance with the
other terms and conditions of this Lease.
2.3 Tenant's Parking Areas. Tenant shall have the right to use, subject to
the Rules and Regulations and on a non-exclusive, unreserved basis, sixty (60)
parking spaces in the parking area shown on the plan attached hereto as Exhibit
F (the "Parking Area"). Landlord shall have the right to install a key-card or
other system of identification limiting access to the parking areas on the
Property, and Tenant shall be issued key-cards for Tenant's parking spaces at
Landlord's cost. Tenant shall be responsible to return to Landlord all key-cards
for Tenant's parking spaces at the expiration or earlier termination of the
Term. In the event Tenant exercises
7
the right to lease the Space under Section 2.5 below, Tenant shall be provided
with an additional twelve (12) parking spaces in the Parking Area.
2.4 Option to Extend.
(a) Provided that, at the time of each such exercise, (i) this Lease
is in full force and effect, and (ii) no Event of Default shall have
occurred and be continuing (either at the time of exercise or at the
commencement of an Extended Term), Tenant shall have the right and option
to extend the Term of this Lease for two (2) extended terms (collectively,
the "Extended Terms") of five (5) years each by giving written notice to
Landlord not later that twelve (12) months (nor earlier than eighteen (18)
months) prior to the expiration date of the Term then in effect. The
effective giving of such notice of extension by Tenant shall automatically
extend the Term of this Lease for the applicable Extended Term, and no
instrument of renewal or extension need be executed. In the event that
Tenant fails timely to give such notice to Landlord, this Lease shall
automatically terminate at the end of the Term then in effect, and Tenant
shall have no further option to extend the Term of this Lease. Each
Extended Term shall commence on the date immediately succeeding the
expiration date of the original Term of the preceding Extended Term, as the
case may be, and shall end on the day immediately preceding the fifth
anniversary of the first day of such Extended Term. The Extended Term shall
be on all the terms and conditions of this Lease, except: (i) during the
second Extended Term, Tenant shall have no further option to extend the
Term, and (ii) the Basic rent for the Extended Terms shall be the Fair
Market Rental Value of the Premises as of the commencement of the Extended
Term in question, taking into account all relevant factors, determined
pursuant to paragraph (b), but in no event shall the Basic Rent for the
Extended Term be less than the Basic Rent at the expiration of the original
or Extended Term immediately preceding the commencement of the Extended
Term in question.
(b) Within thirty (30) days after receiving Tenant's notice extending
the Term of this Lease pursuant to paragraph (a) above, Landlord shall
provide Tenant with Landlord's good faith estimate of the Fair Market
Rental Value of the Premises for the upcoming Extended Term based upon
rents being paid by tenants entering into leases for comparable space
similar in size, build-out, amenities and term in the Waltham area, not
including the value of any improvements made to the Premises by Tenant at
Tenant's sole cost and expense. If Tenant is unwilling to accept Landlord's
estimate of the Fair Market Rental Value as set forth in Landlord's notice
referred to above, and the parties are unable to reach agreement thereon
within thirty (30) days after the delivery of such notice by Landlord, then
Tenant may rescind its exercise of the option to extend by written notice
delivered to Landlord within ten (10) days after the expiration of such
thirty (30)-day period. If Tenant does not so exercise its right to
rescind, then either party may submit the determination of the Fair Market
Rental Value of the Premises to arbitration by giving notice to the other
party naming the initiation party's arbitrator within ten (10) days after
the expiration of such ten (10)-day period. Within fifteen (15) days after
receiving a notice of initiation of arbitration, the responding party shall
appoint its own arbitrator by notifying the initiating party of the
responding party's arbitrator. If the second arbitrator shall
8
not have been so appointed within such fifteen (15) day period, the Fair
Market Rental Value of the Premises shall be determined by the initiating
party's arbitrator. If the second arbitrator shall have been so appointed,
the two arbitrators thus appointed shall, within fifteen (15) days after
the responding party's notice of appointment of the second arbitrator,
appoint a third arbitrator. If the two initial arbitrators are unable
timely to agree on the third arbitrator, then either may, on behalf of
both, request such appointment by the Boston office of JAMS/ENDISPUTE, or
its successor, or, on its failure, refusal or inability to act, by a court
of competent jurisdiction. Within fifteen (15) days after the appointment
of the third arbitrator, the three arbitrators shall determine the Fair
Market Rental Value of the Premises and give notice thereof to the parties
hereto, and the arbitrators' determination shall be binding upon the
parties. All arbitrators shall be appraisers or other qualified real estate
professionals who are independent from the parties who have had at least
ten (10) years commercial real estate experience in the greater Boston
area. Each party shall pay the fees of its own arbitrator, and the fees of
the third arbitrator shall be shared equally by the parties.
2.5 Right of First Offer.
(a) Tenant shall have a "Right of First Offer" to lease the five
thousand (5,000) square feet of space that is contiguous to the Premises as
shown on Exhibit A (the "Space") such right to apply during the period from
the date of this Lease through the first anniversary of the Rent
Commencement Date (the "Right of First Offer Period").
(b) Landlord will notify Tenant during Right of First Offer Period of
its plans to lease any portion of the Space to any unrelated third party
("Landlord's Notice"). Landlord's Notice shall specify the square footage
of the Space available and its location, and the date of availability. The
Space shall be leased to Tenant on the same terms and conditions as
contained in this Lease. Tenant will notify Landlord within seven (7)
Business Days of Landlord's notice if Tenant wishes to lease such Space
from Landlord on such terms and conditions. If Tenant notifies Landlord
that it wishes to lease the Space, Landlord and Tenant shall execute an
amendment to this Lease (incorporating therein the terms contained in
Landlord's notice and the other terms and conditions contained in this
Lease) within seven (7) Business Days. If Tenant fails to notify Landlord
within said seven (7) Business Day period that Tenant intends to lease such
Space, or if Landlord and Tenant fail, using commercially reasonable
efforts, to execute a lease agreement for such Space within seven (7)
Business Days of Tenant's notice of intent to Landlord, Landlord shall be
entitled to lease such space to any third party on such terms and
conditions and for such rent as Landlord determines in its sole discretion.
If Tenant fails to notify Landlord that Tenant intends to lease such Space
and Landlord does not execute a lease for the Space on the terms contained
in Landlord Notice, Tenant's Right of First Offer shall continue to apply
to any further proposals to lease the Space during the Right of First Offer
Period only.
(c) Notwithstanding any contrary provision of this Section 2.5 or any
other provision of this Lease, any Right of First Offer and any exercise by
Tenant of any Right of First
9
Offer shall be void and of no effect unless on the date Tenant notifies
Landlord that it is exercising the Right of First Offer and on the
commencement date of the lease agreement for such Space (i) this Lease is
in full force and effect and (ii) no Event of Default has occurred under
this Lease which remains continuing and uncured, and (iii) the Tenant named
herein is occupying the entire Premises for the conduct of its business.
ARTICLE 3
BASIC RENT
3.1 Payment.
(a) Tenant agrees to pay the Basic Rent and Additional Rent to
Landlord, or as directed by Landlord, commencing on the Rent Commencement
Date, without offset, abatement (except as provided in Section 11.4),
deduction or demand. Basic Rent shall be payable in equal monthly
installments, in advance, on the first day of each and every calendar month
during the Term of this Lease, to Landlord at Landlord's Address or at such
other place as Landlord shall from time to time designate by notice, in
lawful money of the United States. In the event that any installment of
Basic Rent or any regularly scheduled payment of Additional Rent is not
paid within five (5) days of when due, Tenant shall pay, in addition to any
charges under Section 14.4, at Landlord's request an administrative fee
equal to 5% of the overdue payment. Landlord and Tenant agree that all
amounts due from Tenant under or in respect of this Lease, whether labeled
Basic Rent, Escalation Charges, Additional Rent or otherwise, shall be
considered as rental reserved under this Lease for all purposes, including
without limitation regulations promulgated pursuant to the Bankruptcy Code,
and including further without limitation Section 502(b) thereof.
(b) Basic Rent for any partial month shall be pro-rated on a daily
basis, and if the first day on which Tenant must pay Basic Rent shall be
other than the first day of a calendar month, the first payment which
Tenant shall make to Landlord shall be equal to a proportionate part of the
monthly installment of Basic Rent for the partial month from the first day
on which Tenant must pay Basic Rent to the last day of the month in which
such day occurs.
ARTICLE 4
COMMENCEMENT AND CONDITION
4.1 Base Building Work; Commencement Date.
(a) Landlord has prepared plans and specifications (the "Base Building
Plans") for the work to be performed by Landlord in the Premises (the
"Premises Base Building Work") and to the Common Facilities (the "Common
Facilities Base Building Work") in the Building prior to Tenant's occupancy
(collectively, the "Base Building Work") a copy of which plans are attached
hereto as Exhibit G. Landlord agrees to commence the Base Building Work
10
promptly after execution of this Lease. The Base Building Work shall be
deemed substantially completed on the first day as of which Landlord's
architect delivers a certificate of substantial completion to both Landlord
and Tenant, indicating that the Base Building Work has been completed in
accordance with the Base Building Plans, except for minor items of work
(and, if applicable, adjustment of equipment and fixtures) which can be
completed after Tenant commences Tenant's Work with minimum interference
with Tenant's ability to proceed with Tenant's Work (i.e., so-called "Base
Building Punch List" items) and Tenant has been given notice thereof. Such
date is hereinafter called the "Premises Base Building Substantial
Completion Date," and the "Common Facilities Base Building Substantial
Completion Date," respectively (collectively, the "Base Building
Substantial Completion Date"). Landlord agrees to use commercially
reasonable efforts to complete the Premises Base Building Work by December
1, 2001 and the Common Facilities Base Building Work by March 1, 2002. Such
work shall be performed in a good and workmanlike manner and in compliance
with all applicable laws, regulations and ordinances. Tenant and/or its
designated representative shall have the right to enter the Premises and
inspect the performance of such work on a regular basis. Landlord shall
keep Tenant apprised of the status of construction of the Base Building
Work and shall endeavor to give Tenant at least twenty (20) days' advance
notice of the date on which Landlord expects to substantially complete the
Premises Base Building Work and the Common Facilities Base Building Work.
Following Tenant's receipt of such notices of the applicable Base Building
Substantial Completion Date, Tenant shall have the right to inspect the
Premises. If such inspection reveals that the Base Building Work has not
been completed in accordance herewith, Landlord and Tenant shall identify
those items that remain to be completed or repaired on a punch list.
Landlord shall complete all Base Building Punch List items within thirty
(30) days, and Tenant shall afford Landlord access to the Premises for such
purposes. If, in Landlord's commercially reasonable judgment, any items
contained on the Base Building Punch List would delay or materially
interfere with Tenant's ability to perform Tenant's Work, the Base Building
Substantial Completion Date shall be delayed until such item(s) is/are
completed.
(b) The "Commencement Date" shall be the later to occur of (i)
December 1, 2001, or (ii) the Premises Base Building Substantial Completion
Date. Promptly upon the occurrence of the Commencement Date, Landlord and
Tenant shall execute and deliver a letter designating the Commencement Date
substantially in the form attached hereto as Exhibit C, but the failure by
either party to execute and deliver such a letter shall have no effect on
the Commencement Date, as hereinabove determined.
4.2 Tenant's Work.
(a) Tenant is currently preparing plans and specifications for the
layout of the Premises (such plans and specifications are collectively
referred to as the "Layout Plan") and architectural and mechanical,
electrical and plumbing engineering plans and specifications for the
Premises. Such plans and specifications, when fully complete and approved
by Landlord, are hereinafter called "Tenant's Plans." Landlord shall not
unreasonably withhold or delay its approval of the Tenant's Plans or any
components thereof. Landlord shall approve or disapprove
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Tenant's Plans within five (5) Business Days after submission of such Plans
by Tenant to Landlord. Any disapproval shall be accompanied by a reasonably
specific statement of reasons therefore. Landlord shall cooperate with
Tenant in Tenant's efforts to address Landlord's basis for such
disapproval. In the event of such disapproval, Tenant shall promptly cause
the Tenant's Plans to be revised in a manner sufficient to remedy the
Landlord's reasonable objections and/or respond to the Landlord's concerns
and shall deliver such revised plans to Landlord, and Landlord shall either
approve (which approval shall not be unreasonably withheld, conditioned or
delayed) or disapprove Tenant's revised plans (such disapproval to be on a
reasonable basis) within five (5) Business Days following the date of
submission. The work specified in Tenant's Plans shall be called "Tenant's
Work." Tenant estimates that it will expend the amount set forth in Section
1.1 hereof ("Tenant's Estimated Contribution") in the completion of
Tenant's Work. Tenant's Plans shall be stamped by a
Massachusetts-registered architect and engineer, such architect and
engineer being subject to Landlord's reasonable approval. Tenant covenants
that the improvements shown on Tenant's Plans, if constructed in accordance
with such Plans, shall comply with all applicable laws, ordinances and
regulations (including, without limitation, the applicable requirements of
the Americans with Disabilities Act of 1990, and the regulations
promulgated thereunder) and the requirements of the Rules and Regulations,
and shall be in a form satisfactory to appropriate governmental authorities
responsible for issuing permits, approvals and licenses required for
construction. Landlord shall cooperate with Tenant in obtaining, at
Tenants' sole cost and expense, all permits and approvals necessary for
Tenant to perform Tenant's Work. In the event a governmental authority will
not issue a permanent certificate of occupancy for the Premises or such
authority orders Tenant to stop the performance of Tenant's Work, in whole
or in part, due to a deficiency or defect in the Base Building Work or any
other defect or deficiency in the Building, the Rent Commencement Date
shall be delayed one (1) day for each day of delay until such defect or
deficiency is remedied by Landlord, at its cost, and approved by the
governmental authority.
(b) From and after the earlier to occur of (i) the Premises Base
Building Substantial Completion Date, or (ii) November 15, 2001, Tenant
shall have access to the Premises and to the Building for purposes of
performing Tenant's Work. In no event, shall a Tenant Delay (as defined in
Section 4.4) delay the Rent Commencement Date. Tenant's Work shall be
completed in accordance with the requirements set forth in the Rules and
Regulations. Landlord shall reimburse Tenant for the costs incurred by
Tenant with respect to the performance of Tenant's Work (the "Cost of
Tenant's Work") up to the amount of Landlord's Contribution. Tenant shall
be entirely responsible for any excess. Landlord's Contribution shall be
payable by Landlord to Tenant upon written requisition to Landlord in
monthly installments, as provided below, according to reasonable
construction disbursement procedures and as Tenant's Work progresses. In
any case, prior to payment of any such installment Tenant shall deliver to
Landlord a written request, which request shall be given no more frequently
than once every thirty (30) days, for such disbursement, which shall be
accompanied by: (i) invoices for Tenant's Work covered by any previous
requisition; (ii) copies of partial lien waivers or final lien waivers (in
the case of a final installment); and (iii) a certificate signed by the
Tenant's architect certifying that Tenant's Work represented by the
aforementioned invoices has been
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completed substantially in accordance with Tenant's Plans. Landlord shall
pay each required installment within thirty (30) days of receiving the
materials enumerated in the previous sentence.
4.3 Condition; Landlord's Warranty. Landlord represents and warrants
("Landlord's Warranty") that the Base Building Work shall be free from material
defects in workmanship and materials for a period of one (1) year (the "Warranty
Period") from the Commencement Date. Landlord's Warranty shall not apply to any
defects in workmanship or materials that arise due to the negligence or willful
misconduct of Tenant, it's agents, employees, contractors, invitees or
sublessees. During the Warranty Period, Landlord agrees to promptly replace
and/or repair, at its expense, items of the Base Building Work which do not
conform to the Base Building Plans, or which are defective. Except for the Base
Building Work, any warranties that Landlord may receive (which landlord shall
make available to Tenant), or which Landlord may provide pursuant hereto, the
Premises are being leased in their present condition, AS IS, WITHOUT
REPRESENTATION OR WARRANTY by Landlord. Tenant acknowledges that it has
inspected the Premises and Common Facilities and, except for the Base Building
Work, has found the same satisfactory.
4.4 Rent Credit.
(a) Subject to Tenant Delay (as defined below) and Force Majeure, if
Landlord shall have failed to substantially complete the Premises Base
Building Work by December 15, 2001 (the "Premises Rent Credit Commencement
Date") and if such failure materially interferes with or prohibits Tenant
from performing Tenant's Work, or from obtaining any permits or approvals
necessary for performing or completing Tenant's Work, Tenant shall receive
a credit equal to one (1) days' worth of Basic Rent for each day beyond the
Premises Rent Credit Commencement Date that substantial completion of the
Premises Base Building Work is delayed. Subject to Tenant Delay and Force
Majeure, if Landlord shall have failed to substantially complete the
Premises Base Building Work by January 1, 2002 and if such failure
materially interferes with or prohibits Tenant from performing Tenant's
Work, or from obtaining any permits or approvals necessary for performing
or completing Tenant's Work, Tenant shall receive a credit equal to two (2)
days' worth of Basic Rent for each day beyond January 1, 2002 that
substantial completion of the Premises Base Building Work is delayed. For
purposes of this Lease, "Tenant Delay" shall mean (i) any request by Tenant
that Landlord delay in the commencement or completion of the Premises Base
Building Work, or the Common Facilities Base Building Work, as applicable,
for any reason; (ii) any delay in the Base Building Substantial Completion
Date caused by Tenant's contractors, agents and employee's interference
with Landlord and Landlord's contractor's, agents, and employees; or (iii)
any other act or omission of Tenant or its officers, agents, servants or
contractors which causes a delay in the Premises Base Building Work, or the
Common Facilities Base Building Work, as applicable. If a delay shall occur
in the Base Building Work as a result of Tenant Delay, then Tenant shall,
within thirty (30) days after determination of the Rent Commencement Date,
and only to the extent that such amount exceeds the rent credit, if any,
due to Tenant, pay to Landlord for each
13
day of Tenant's Delay the amount of Basic Rent, Additional Rent and other
charges that would have been payable hereunder had Tenant's Delay not
occurred to the extent that such Tenant Delay caused the Rent Commencement
Date to be later than the date such date would have occurred had such
Tenant Delay not occurred. Landlord shall give Tenant written notice of a
Tenant Delay under clauses (ii) and (iii) above within twenty-four (24)
hours after Landlord learns of such Tenant Delay. Subject to Tenant Delay
and Force Majeure, if Landlord shall have failed to substantially complete
the Premises Base Building Work on or before March 1, 2002, Tenant shall
have the right to terminate the Lease by written notice to Landlord prior
to March 15, 2002, whereupon this Lease shall terminate and be of no
further force or effect thirty (30) days after the date of such notice
unless Landlord shall have substantially completed the Premises Base
Building Work prior to, or within such period.
(b) Subject to Tenant Delay (as defined in Section 4.1(a) above) and
Force Majeure, if Landlord shall have failed to substantially complete the
Common Facilities Base Building Work by March 1, 2002 (the "Common
Facilities Rent Credit Commencement Date") and if such failure materially
interferes with or prohibits Tenant from performing Tenant's Work, or from
obtaining any permits or approvals necessary for performing or completing
Tenant's Work, Tenant shall receive a credit equal to one (1) days' worth
of Basic Rent for each day beyond the Common Facilities Rent Credit
Commencement Date that substantial completion of the Common Facilities Base
Building Work is delayed. Subject to Tenant Delay and Force Majeure, if
Landlord shall have failed to substantially complete the Common Facilities
Base Building Work on or before April 1, 2002, Tenant shall have the right
to terminate the Lease by written notice to Landlord prior to April 15,
2002, whereupon this Lease shall terminate and be of no further force or
effect thirty (30) days after the date of such notice unless Landlord shall
have substantially completed the Common Facilities Base Building Work prior
to, or within such period.
ARTICLE 5
USE OF PREMISES
5.1 Permitted Use.
(a) Tenant agrees that the Premises shall be used and occupied by
Tenant only for Permitted Uses and for no other use without Landlord's
express written consent.
(b) Tenant agrees to conform to the following provisions during the
Term of this Lease:
(i) Tenant shall cause all freight to be delivered to or removed
from the Building and the Premises in accordance with the Rules and
Regulations established by Landlord therefore;
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(ii) Tenant will not place on the exterior of the Premises
(including both interior and exterior surfaces of doors and interior
surfaces of windows) or on any part of the Building outside the
Premises, any sign, symbol, advertisement or the like visible to
public view outside of the Premises. Landlord will not withhold
consent for signs or lettering on the entry doors to the Premises
provided such signs conform to sign standards for the Building adopted
by Landlord in its sole discretion and Tenant has submitted to
Landlord a plan or sketch in reasonable detail (showing, without
limitation, size, color, location, materials and method of affixation)
of the sign to be placed on such entry doors. Landlord agrees,
however, to maintain a tenant directory in the lobby of the Building
(and, in the case of multi-tenant floors, in that floor's elevator
lobby) in which will be placed Tenant's name (or any approved
assignee's name) and the location of the Premises in the Building.
Notwithstanding the foregoing, Tenant shall have the right to place
Tenant's name on the Building or on a sign next to the Building, at
Tenant's sole cost and expense, provided Tenant obtains Landlord's
consent, which shall not be unreasonably withheld, conditioned or
delayed and the consent of any applicable governmental authorities,
and Tenant delivers to Landlord plans for installation of such sign,
which shall be subject to Landlord's prior approval, which approval
shall not be unreasonably withheld, conditioned or delayed. Landlord
hereby consents to Tenant's exterior signage, as set forth in Exhibit
M attached hereto and incorporated herein;
(iii) Tenant shall not perform any act or carry on any practice
which may injure the Premises, or any other part of the Building, or
cause any offensive odors or loud noise or constitute a nuisance or a
menace to any other tenant or tenants or other persons in the
Building;
(iv) Tenant shall, in its use of the Premises, comply with the
requirements of all applicable governmental laws, rules and
regulations, including, without limitation, the Americans With
Disabilities Act of 1990 and the regulations of the Massachusetts
Architectural Access Board. Landlord warrants and represents that the
Base Building Work will comply with the Title III of the Americans
with Disabilities Act of 1990 and any regulations or accessibility
guidelines promulgated thereunder and with any other federal, state or
municipal laws, regulations or building codes concerning handicapped
access (collectively, "Access Requirements"). To the extent that any
alterations to the Building are required as a result of the Base
Building Work, and are not due to Tenants' use of the Premises or
Tenant's Work, in order to come into compliance with the Access
Requirements, Landlord shall make such alterations. The costs thereof
and any other costs of complying with any Access Requirements shall be
borne by Landlord and shall not be included in Operating Expenses; and
(v) Tenant shall not abandon the Premises. For purposes of the
foregoing, the term "abandonment" shall mean vacating the Premises and
failing to perform Tenant's obligations hereunder.
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5.2 Installations and Alterations by Tenant.
(a) Tenant shall make no alterations, additions (including, for the
purposes hereof, wall-to-wall carpeting), or improvements (collectively,
"Alterations") in or to the Premises (including Tenant's Work) without
Landlord's prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed, except that if the Alterations affect or
involve the Building's electrical, plumbing or mechanical systems or any
other Building systems, or the roof of the Building, and such Alterations
affect other tenants of the Building or the Property, or the Common
Facilities, then Landlord's consent shall be granted or withheld in its
sole discretion. Notwithstanding the foregoing, Tenant may, without the
necessity of acquiring Landlord's consent, perform non-structural
Alterations that do not affect or involve the Building's electrical,
plumbing or mechanical systems or any other Building systems, or the roof
of the Building, and such Alterations do not affect other tenants of the
Building or the Property, or the Common Facilities, and do not exceed
$20,000.00 in cost in each instance. Any Alterations shall be in accordance
with the Rules and Regulations in effect with respect thereto and with
plans and specifications meeting the requirements set forth in the Rules
and Regulations and approved in advance by Landlord, which approval shall
not be unreasonably withheld, conditioned or delayed. All work shall (i) be
performed in a good and workmanlike manner and in compliance with all
applicable laws, ordinances and regulations; (ii) be made at Tenant's sole
cost and expense (subject to Landlord's Contribution with respect to
Tenant's Work only); (iii) become part of the Premises and the property of
Landlord, except for those items specified on Exhibit K attached hereto and
incorporated herein; and (iv) be coordinated with any work being performed
by Landlord in such a manner as not to damage the Building or unreasonably
interfere with the construction or operation of the Building. At Landlord's
request, Tenant shall, before its work is started, secure assurances
satisfactory to Landlord in its reasonable discretion protecting Landlord
against claims arising out of the furnishing of labor and materials for the
Alterations. If any Alterations shall involve the removal of fixtures,
equipment or other property in the Premises which are not Tenant's
Removable Property, such fixtures, equipment or property shall be promptly
replaced by Tenant at its expense with new fixtures, equipment or property
of like utility and of at least equal quality. Except with respect to
Tenant's Work, Tenant shall promptly reimburse Landlord for all reasonable
costs, including attorneys', architects', engineers', and consultants'
fees, incurred by Landlord in connection with any request from Tenant
pursuant to this Section 5.2. Notwithstanding the foregoing, Tenant has the
right to install an acid neutralization tank (the "Tank"), as well as all
associated piping, provided that such Tank and piping be not more than six
(6) feet below the finished floor of the Building. Such installation shall
be subject to Landlord's prior approval, which approval shall not be
unreasonably withheld, and the provisions of this Section 5.2.
(b) All articles of personal property and all business fixtures,
machinery and equipment and furniture owned or installed by Tenant solely
at its expense in the Premises ("Tenant's Removable Property") shall remain
the property of Tenant and may be removed by Tenant at any time prior to
the expiration or earlier termination of the Term, provided that Tenant, at
its expense, shall repair any damage to the Building caused by such
removal.
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(c) Notice is hereby given that Landlord shall not be liable for any
labor or materials furnished or to be furnished to Tenant upon credit, and
that no mechanic's or other lien for any such labor or materials shall
attach to or affect the reversion or other estate or interest of Landlord
in and to the Premises, the Building or the Property. To the maximum extent
permitted by law, before such time as any contractor commences to perform
work on behalf of Tenant, such contractor (and any subcontractors) shall
furnish a written statement acknowledging the provisions set forth in the
prior clause. Tenant agrees to pay when due the entire cost of any work
done on behalf of Tenant, its agents, employees or independent contractors.
If any lien is filed against all or any part of the Property for work
claimed to have been done for, or materials claimed to have been furnished
to, Tenant or its agents, employees or independent contractors and a
subsequent Statement of Account is recorded pursuant to M.G.L.c. 254, ss.8,
Tenant, at its sole cost and expense, shall cause such lien to be dissolved
promptly within ten (10) days after receipt of notice that such lien has
been filed, by the payment thereof or by the filing of a bond sufficient to
accomplish the foregoing. If Tenant shall fail to discharge any such lien,
Landlord may, at its option, discharge such lien and treat the cost thereof
(including attorneys' fees incurred in connection therewith) as Additional
Rent payable upon demand, it being expressly agreed that such discharge by
Landlord shall not be deemed to waive or release the Event of Default in
not discharging such lien. Tenant shall indemnify and hold Landlord
harmless from and against any and all expenses, liens, claims, liabilities
and damages based on or arising, directly or indirectly, by reason of the
making of any alterations, additions or improvements by or on behalf of
Tenant to the Premises under this Section, which obligation shall survive
the expiration or termination of this Lease.
(d) In the course of any work being performed by Tenant (including,
without limitation, the "field installation" of any Tenant's Removable
Property), Tenant agrees to use labor compatible with that being employed
by Landlord for work in the Building or on the Property or other buildings
owned by Landlord or its affiliates (which term, for purposes hereof, shall
include, without limitation, entities which control or are under common
control with or are controlled by Landlord or, if Landlord is a partnership
or limited liability company, by any partner or member of Landlord) and not
to employ or permit the use of any labor or otherwise take any action which
might result in a labor dispute involving personnel providing services in
the Building or on the Property pursuant to arrangements made by Landlord.
5.3 Extra Hazardous Use. Tenant covenants and agrees that Tenant will not
do or permit anything to be done in or upon the Premises, or bring in anything
or keep anything therein, which shall increase the rate of property or liability
insurance on the Premises or the Property above the standard rate applicable to
Premises being occupied for the Permitted Uses. If the premium or rates payable
with respect to any policy or policies of insurance carried by or on behalf of
Landlord with respect to the Property increases as a result of any act or
activity on or use of the Premises (other than the Permitted Uses) during the
Term or payment by the insurer of any claim arising from any act or neglect of
Tenant, its employees, agents, contractors or invitees, Tenant shall pay such
increase, from time to time, within fifteen (15) days after demand therefore by
Landlord, as Additional Rent.
17
5.4 Hazardous Materials.
(a) Tenant shall have the right to use, store, handle, treat,
transport, release or dispose of the Hazardous Materials set forth in
Exhibit I hereto on or about the Premises or the Property to the extent
necessary or desirable in connection with the Permitted Uses provided the
same is done in compliance with all applicable Environmental Laws. Such
exhibit is representative but not exclusive of the Hazardous Materials used
on or about the Premises by Tenant.
(b) Any handling, treatment, transportation, storage, disposal or use
of Hazardous Materials by Tenant in or about the Premises or the Property
and Tenant's use of the Premises shall comply with all applicable
Environmental Laws. To the extent required by any governmental authority or
by Landlord, Tenant shall, within ten (10) Business Days of the written
request therefore, disclose in writing to Landlord all Hazardous Materials
that are being used by Tenant in the Premises at the time of such request,
the nature of such use and the manner of storage and disposal. Without
Landlord's prior written consent, Tenant shall not conduct any sampling or
investigation of soil or groundwater on the Property to determine the
presence of any constituents therein (unless such sampling or investigation
is required by law, governmental authority, or in connection with a permit
for Tenant's operations in accordance with the Permitted Use, in which
case, Tenant shall provide Landlord with fifteen (15) days' prior written
notice accompanied by Tenant's proposed work plan, and Tenant shall deliver
to Landlord a copy of the results of such sampling or investigation within
ten (10) days after receipt by Tenant).
(c) Tenant shall indemnify, defend upon demand with counsel reasonably
acceptable to Landlord, and hold Landlord harmless from and against, any
liabilities, losses claims, damages, interest, penalties, fines, attorneys'
fees, experts' fees, court costs, remediation costs, and other expenses
(collectively, "Claims") which result from the use, storage, handling,
treatment, transportation, release, threat of release or disposal of
Hazardous Materials in or about the Premises or the Property by Tenant or
Tenant's agents, employees, contractors or invitees. The provisions of this
paragraph (c) shall survive the expiration or earlier termination of this
Lease.
(d) Tenant shall give written notice to Landlord as soon as reasonably
practicable of (i) any communication received by Tenant from any
governmental authority concerning Hazardous Materials which relates to the
Premises or the Property, and (ii) any Environmental Condition of which
Tenant is aware.
(e) Tenant acknowledges that it has received copies of the
environmental information listed on Exhibit L ("Environmental Reports")
from Landlord with respect to the Property. Except as set forth in the
Environmental Reports, Landlord represents and warrants to Tenant that, to
the best of Landlord's knowledge, there are no Hazardous Materials in, on,
under or emanating from the Premises or the Property that require
remediation under any
18
Environmental Law. Landlord agrees to indemnify, defend, and save Tenant
harmless from and against any Claims actually incurred by Tenant arising
from any enforcement action, third party claim for bodily injury or
property damage or remediation required by any Environmental Law with
respect to any Hazardous Materials in, on, under or emanating from the
Premises or the Property (except if and to the extent that Tenant is
required to indemnify Landlord against such Claims under Section 5.4(c)
above), or to the extent arising from Landlord's violation of any
Environmental Law during the Term of this Lease.
ARTICLE 6
ASSIGNMENT AND SUBLETTING
6.1 Prohibition.
(a) Tenant covenants and agrees that neither this Lease nor the term
and estate hereby granted, nor any interest herein or therein, will be
assigned, mortgaged, pledged, encumbered or otherwise transferred, whether
voluntarily, involuntarily, by operation of law or otherwise, and that
neither the Premises nor any part thereof will be encumbered in any manner
by reason of any act or omission on the part of Tenant, or used or occupied
or permitted to be used or occupied, by anyone other than Tenant, or for
any use or purpose other than a Permitted Use, or be sublet (which term,
without limitation, shall include granting of concessions, licenses and the
like) in whole or in part, without, in each case, the prior written consent
of Landlord. Tenant agrees that the Premises shall not be offered or
advertised for assignment or subletting by Tenant or any person acting on
behalf of Tenant without first giving prior written notice to Landlord.
Landlord agrees to either grant or withhold its consent (and specify
reasons for withholding its consent) within twenty (20) days of receipt of
a request for consent. Without limiting the foregoing, any agreement
pursuant to which: (x) Tenant is relieved from the obligation to pay, or a
third party agrees to pay on Tenant's behalf, all or any portion of the
Basic Rent or Additional Rent under this Lease; and/or (y) a third party
undertakes or is granted by or on behalf of Tenant the right to assign or
attempt to assign this Lease or sublet or attempt to sublet all or any
portion of the Premises, shall for all purposes hereof be deemed to be an
assignment of this Lease and subject to the provisions of this Article 6.
The provisions of this paragraph (a) shall apply to a transfer (by one or
more transfers) of a controlling portion of or interest in the stock or
partnership or membership interests or other evidences of equity interests
of Tenant as if such transfer were an assignment of this Lease; provided
that if equity interests in Tenant at any time are or become traded on a
public stock exchange, the transfer of equity interests in Tenant on a
public stock exchange shall not be deemed an assignment within the meaning
of this Article.
(b) The provisions of paragraph (a) shall not apply to either (x)
transactions with an entity into or with which Tenant is merged or
consolidated, or to which all or substantially all of Tenant's assets are
transferred, or (y) transactions with any entity which
19
controls or is controlled by Tenant or is under common control with Tenant;
provided that in any such event:
(i) the successor to Tenant has a net worth, computed in
accordance with generally accepted accounting principles consistently
applied, at least equal to the net worth of Tenant herein named on the
date of this Lease,
(ii) proof satisfactory to Landlord of such net worth shall have
been delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction (or as soon thereafter as
possible if disclosure of such transaction would not be permitted
under applicable law), and
(iii) the assignee or surviving entity agrees directly with
Landlord, by written instrument in form reasonably satisfactory to
Landlord in its reasonable discretion, to be bound by all the
obligations of Tenant hereunder, including, without limitation, the
covenant against further assignment and subletting.
(c) In the event Landlord does not exercise its options pursuant to
Section 6.4 below to recapture the Premises or terminate this Lease in
whole or in part, and providing that Tenant is not in default of any of
Tenant's obligations under this Lease beyond applicable notice and cure
periods, Landlord's consent to a proposed assignment or sublease shall not
be unreasonably withheld, conditioned, or delayed. Without limitation, it
shall be reasonable for Landlord to withhold consent if the following
conditions are not satisfied:
(i) The proposed use is limited to the Permitted Uses;
(ii) The proposed assignee or subtenant is a reputable person or
entity with sufficient financial worth considering the responsibility
involved, based on evidence provided by Tenant (and others) to
Landlord, as determined by Landlord in its reasonable discretion;
(iii) Neither (A) the proposed assignee or sublessee, nor (B) any
person or entity which, directly or indirectly, controls, is
controlled by, or is under common control with, the proposed assignee
or sublessee or any person or entity who controls the proposed
assignee or sublessee, is then an occupant of any part of iPark,
provided that Landlord has space available for lease in iPark,
comparable in terms of size and finish as the Premises, at the time
Tenant requests Landlord's consent to the proposed assignment or
sublease;
(iv) The proposed assignee or sublessee is not a person or entity
with whom Landlord is then negotiating to lease space at the Property;
comparable in terms of size and finish as the Premises (or the
applicable portion of the Premises to be sublet);
20
(v) The proposed sublease or assignment shall be in form
reasonably satisfactory to Landlord and shall comply with the
applicable provisions of this Article 6;
(vi) The amount of the aggregate rent to be paid by the proposed
subtenant is not less than ninety percent (90%) of the then current
market rent per rentable square foot for the Premises as determined by
Landlord in its reasonable discretion (Tenant shall request, in a
written notice to Landlord, that Landlord determine the amount of such
rent, and Landlord shall notify Tenant within five (5) Business Days
of Landlord's receipt of such notice from Tenant of Landlord's
reasonable determination of such rent); and
(vii) Tenant shall not have (i) advertised or publicized in any
way the availability of the Premises without prior notice to Landlord,
or (ii) listed the Premises for subletting, whether through a broker,
agent, representative, or otherwise at a rental rate less than that
referred to in subparagraph (c)(vi) above.
6.2 Acceptance of Rent. If this Lease be assigned, or if the Premises or
any part thereof be sublet or occupied by anyone other than Tenant, whether or
not in violation of the terms and conditions of the Lease, Landlord may, at any
time after an Event of Default, collect rent and other charges from the
assignee, subtenant or occupant, and apply the net amount collected to the rent
and other charges herein reserved, but no such assignment, subletting,
occupancy, collection or modification of any provisions of this Lease shall be
deemed a waiver of this covenant, or the acceptance of the assignee, subtenant
or occupant as a tenant or a release of Tenant from the further performance of
covenants on the part of Tenant to be performed hereunder. Any consent by
Landlord to a particular assignment, subletting or occupancy or other act for
which Landlord's consent is required under paragraph (a) of Section 6.1 shall
not in any way diminish the prohibition stated in paragraph (a) of Section 6.1
as to any further such assignment, subletting or occupancy or other act or the
continuing liability of the original named Tenant. No assignment or subletting
hereunder shall relieve Tenant from its obligations hereunder, and Tenant shall
remain fully and primarily liable therefore. Landlord may withhold its consent
to a particular assignment if the assignment does not provide that the assignee
agrees to be independently bound by and upon all of the covenants, agreements,
terms, provisions and conditions set forth in this Lease on the part of Tenant
to be kept and performed. In addition to Tenant reimbursing Landlord for all
reasonable costs incurred by Landlord in connection with any request from Tenant
regarding assignment or subletting or any other act that is subject to Section
6.1, as set forth in Section 6.4 below, if Tenant has committed an Event of
Default (as defined in Section 14.1 hereof), Tenant shall pay Landlord 50% of
any profit derived from any assignment or sublease. Provided that Tenant has not
committed an Event of Default, Tenant shall retain 100% of any profit derived
from any assignment or sublease.
6.3 Intentionally Omitted.
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6.4 Landlord's Recapture Right. If an Event of Default (as defined in
Section 14.1 hereof) has occurred and is continuing), Landlord shall have the
right, to be exercised in writing within thirty (30) days after written notice
from Tenant seeking Landlord's consent to assign this Lease or sublease all or
any portion of the Premises, to terminate this Lease (in the event of a proposed
assignment) or recapture that portion of the Premises to be subleased (in the
event of a proposed sublease). In the case of a proposed assignment, this Lease
shall terminate as of the date (the "Recapture Date") which is the later of (a)
sixty (60) days after the date of Landlord's election, and (b) the proposed
effective date of such assignment or sublease, as if such date were the last day
of the Term of this Lease. If Landlord exercises the rights under this Section
in connection with a proposed sublease, this Lease shall be deemed amended to
eliminate the proposed sublease premises from the Premises as of the Recapture
Date, and thereafter all Basic Rent and Escalation Charges shall be
appropriately prorated to reflect the reduction of the Premises as of the
Recapture Date, and Landlord shall separately demise the recaptured portion of
the Premises from the remainder of the Premises.
6.5 Further Requirements. Tenant shall reimburse Landlord on demand, as
Additional Rent, for any actual and out-of-pocket costs (including reasonable
attorneys' fees and expenses) incurred by Landlord in connection with any actual
or proposed assignment or sublease or other act described in paragraph (a) of
Section 6.1, whether or not consummated, including the costs of making
investigations as to the acceptability of the proposed assignee or subtenant.
Any sublease to which Landlord gives its consent shall not be valid unless and
until Tenant and the sublessee execute a consent agreement in form and substance
satisfactory to Landlord in its reasonable discretion and a fully executed
counterpart of such sublease has been delivered to Landlord. Any sublease shall
provide that: (i) the term of the sublease ends no later than one day before the
last day of the Term of this Lease; (ii) such sublease is subject and
subordinate to this Lease; (iii) Landlord may enforce the provisions of the
sublease, including collection of rents; and (iv) in the event of termination of
this Lease or reentry or repossession of the Premises by Landlord, Landlord may,
at its sole discretion and option, take over all of the right, title and
interest of Tenant, as sublessor, under such sublease, and such subtenant shall,
at Landlord's option, attorn to Landlord, but nevertheless, Landlord shall not
(A) be liable for any previous act or omission of Tenant under such sublease
(unless such act or omission is of a continuing nature and Landlord does not
cure the same within a reasonable time); (B) be subject to any defense or offset
previously accrued in favor of the subtenant against Tenant; or (C) be bound by
any previous modification of such sublease made without Landlord's written
consent or by any previous prepayment of more than one month's rent.
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ARTICLE 7
RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES; SERVICES TO
BE FURNISHED BY LANDLORD
7.1 Landlord Repairs.
(a) Except as otherwise provided in this Lease, Landlord agrees to
keep in good order, condition and repair the roof, public areas, exterior
walls (including exterior glass) and structure of the Building (including
all plumbing, mechanical and electrical systems, but specifically excluding
any plumbing, mechanical and electrical systems installed by Tenant, and
any supplemental heating, ventilation or air conditioning equipment or
systems installed at Tenant's request or as a result of Tenant's
requirements in excess of building standard design criteria, all of which
shall be the responsibility of Tenant), all insofar as they affect the
Premises, except that Landlord shall in no event be responsible to Tenant
for the repair of glass in the Premises, the doors (or related glass and
finish work) leading to the Premises, or any condition in the Premises or
the Building caused by any act or neglect of Tenant, its invitees or
contractors. Landlord shall also keep and maintain all Common Facilities in
a good and clean order, condition and repair, free of snow and ice and
accumulation of dirt and rubbish, and shall keep and maintain all
landscaped areas on the Property in a neat and orderly condition. Landlord
shall not be responsible to make any improvements or repairs to the
Building other than as expressly in this Section 7.1 provided, unless
expressly provided otherwise in this Lease.
(b) Landlord shall never be liable for any failure to make repairs
which Landlord has undertaken to make under the provisions of this Section
7.1 or elsewhere in this Lease, unless Tenant has given notice to Landlord
of the need to make such repairs, and Landlord has failed to commence to
make such repairs within a reasonable time after receipt of such notice, or
fails to proceed with reasonable diligence to complete such repairs.
7.2 Tenant Repairs.
(a) Tenant will keep the Premises and every part thereof neat and
clean, and will maintain the same in good order, condition and repair,
excepting only those repairs for which Landlord is responsible under the
terms of this Lease, reasonable wear and tear of the Premises, and damage
by fire or other casualty or as a consequence of the exercise of the power
of eminent domain; and Tenant shall surrender the Premises, at the end of
the Term, in such condition. Without limitation, Tenant shall comply with
all laws, codes and ordinances from time to time in effect and all
directions, rules and regulations of governmental agencies having
jurisdiction, and the standards recommended by the Boston Board of Fire
Underwriters applicable to Tenant's particular use and occupancy of the
Premises, and shall, at Tenant's expense, obtain all permits, licenses and
the like required thereby. Subject to Section 10.4 regarding waiver of
subrogation, Tenant shall be responsible for the cost of repairs which may
be made necessary by reason of damage to the Building caused by any
negligence or willful
23
misconduct of Tenant, or its contractors or invitees (including any damage
by fire or other casualty arising therefrom).
(b) If repairs are required to be made by Tenant pursuant to the terms
hereof, and Tenant fails to commence the repairs, upon not less than ten
(10) days' prior written notice (except that no notice shall be required in
the event of an emergency), Landlord may make or cause such repairs to be
made (but shall not be required to do so), and the provisions of Section
14.4 shall be applicable to the costs thereof. Landlord shall not be
responsible to Tenant for any loss or damage whatsoever that may accrue to
Tenant's stock or business by reason of Landlord's making such repairs.
7.3 Floor Load - Heavy Machinery.
(a) Tenant shall not place a load upon any floor in the Premises
exceeding the floor load per square foot of area which such floor was
designed to carry and which is allowed by law. Landlord reserves the right
to prescribe the weight and position of all heavy business machines and
mechanical equipment, including safes, which shall be placed so as to
distribute the weight. Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant's expense in settings sufficient,
in Landlord's judgment, to absorb and prevent vibration, noise and
annoyance. Tenant shall not move any safe, heavy machinery, heavy
equipment, freight, bulky matter or fixtures into or out of the Building
without Landlord's prior consent, which consent shall not be unreasonably
withheld, conditioned or delayed and which consent may include a
requirement to provide insurance, naming Landlord as an insured, in such
amounts as Landlord may deem reasonable.
(b) If any such safe, machinery, equipment, freight, bulky matter or
fixtures requires special handling, Tenant agrees to employ only persons
holding a Master Rigger's License to do such work, and that all work in
connection therewith shall comply with applicable laws and regulations. Any
such moving shall be at the sole risk and hazard of Tenant, and Tenant will
exonerate, indemnify and save Landlord harmless against and from any
liability, loss, injury, claim or suit resulting directly or indirectly
from such moving, subject to Section 10.4.
7.4 Utility Services. The Premises shall be separately metered by Landlord,
at Landlord's expense, prior to the Commencement Date, for water, electricity
and gas.
7.5 Other Services.
Landlord shall also provide at all times:
(a) Warm and cold water (at temperatures supplied by the city in which
the Property is located) for laboratory use, drinking, lavatory and toilet
purposes.
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(b) Access to the Premises at all times, subject to security
precautions from time to time in effect, if any, and subject always to
restrictions based on emergency conditions.
Landlord may from time to time, but shall not be obligated to, provide one
or more attendants in or about the lobby of the Building, and the costs of such
services shall constitute Operating Expenses in accordance with the provisions
of Article 9 hereof. Tenant expressly acknowledges and agrees that, if provided:
(i) such attendants shall not serve as police officers, and will be unarmed, and
will not be trained in situations involving potentially physical confrontation;
and (ii) such attendants will be solely an amenity to tenants of the Building
for purposes such as assisting visitors and invitees of tenants and others in
the Building, monitoring fire control and alarm equipment, and summoning
emergency services to the Building as and when needed, and not for the purpose
of securing any individual tenant premises or guaranteeing the physical safety
of Tenant's Premises or of Tenant's employees, agents, contractors or invitees.
If and to the extent that Tenant desires to provide security for the Premises or
for such persons or their property, Tenant shall be responsible for so doing,
after having first consulted with Landlord and after obtaining Landlord's
consent, which shall not be unreasonably withheld. Landlord expressly disclaims
any and all responsibility and/or liability for the physical safety of Tenant's
property, and for that of Tenant's employees, agents, contractors and invitees,
and, without in any way limiting the operation of Article 10 hereof, Tenant, for
itself and its agents, contractors, invitees and employees, hereby expressly
waives any claim, action, cause of action or other right which may accrue or
arise as a result of any damage or injury to the person or property of Tenant or
any such agent, invitee, contractor or employee unless arising out of the
negligence or willful misconduct of Landlord, its agents, its employees, or its
contractors. Tenant agrees that, as between Landlord and Tenant, it is Tenant's
responsibility to advise its employees, agents, contractors and invitees as to
necessary and appropriate safety precautions.
7.6 Interruption of Service.
(a) Landlord reserves the right to curtail, suspend, interrupt and/or
stop the supply of water, sewage, electrical current, cleaning, and other
services, and to curtail, suspend, interrupt and/or stop use of entrances
and/or lobbies serving access to the Building, or other portions of the
Property, provided Tenant has one reasonable means of access to the
Premises at all times, without thereby incurring any liability to Tenant,
when necessary by reason of accident or emergency, or for repairs,
alterations, replacements or improvements in the judgment of Landlord,
reasonably exercised, desirable or necessary, or when prevented from
supplying such services or use due to any act or neglect of Tenant or
Tenant's agents employees, contractors or invitees or any person claiming
by, through or under Tenant or by Force Majeure, including, but not limited
to, strikes, lockouts, difficulty in obtaining materials, accidents, laws
or orders, or inability, by exercise of reasonable diligence, to obtain
electricity, water, gas, steam, coal, oil or other suitable fuel or power;
provided, however, Landlord shall use reasonable efforts to restore any
such service. If, however, such curtailment, suspension, interruption
and/or stoppage may be restored by Landlord and is within Landlord's
control, Landlord agrees to use best efforts to restore such service. With
respect to non-emergency repairs and maintenance, Landlord shall
25
provide Tenant with reasonable advance notice and shall schedule such
repairs and maintenance in a manner to minimize disruption with Tenant's
business operations at the Premises. Except as set forth in paragraph (b)
below, no diminution or abatement of rent or other compensation, nor any
direct, indirect or consequential damages shall or will be claimed by
Tenant as a result of, nor shall this Lease or any of the obligations of
Tenant be affected or reduced by reason of, any such interruption,
curtailment, suspension or stoppage in the furnishing of the foregoing
services or use, irrespective of the cause thereof. Except as set forth in
paragraph (b) below, failure or omission on the part of Landlord to furnish
any of the foregoing services or use as provided in this paragraph shall
not be construed as an eviction of Tenant, actual or constructive, nor
entitle Tenant to an abatement of rent, nor to render the Landlord liable
in damages, nor release Tenant from prompt fulfillment of any of its
covenants under this Lease.
(b) Notwithstanding anything contained in this Lease to the contrary,
if (i) an interruption or curtailment, suspension or stoppage of an
Essential Service (as said term is hereinafter defined) shall occur, except
any of the same due to any act or neglect of Tenant or Tenant's agents
employees, contractors or invitees or any person claiming by, through or
under Tenant (any such interruption of an Essential Service being
hereinafter referred to as a "Service Interruption"), and (ii) such Service
Interruption occurs or continues as a result of the negligence or a
wrongful conduct of the Landlord or Landlord's agents, servants, employees
or contractors, and (iii) such Service Interruption continues for more than
five (5) consecutive Business Days after Landlord shall have received
notice thereof from Tenant, and (iv) as a result of such Service
Interruption, the conduct of Tenant's normal operations in the Premises are
materially and adversely affected, then there shall be an abatement of one
day's Basic Rent and Escalation Charges for each day during which such
Service Interruption continues after such five (5) Business Day period;
provided, however, that if any part of the Premises is reasonably useable
for Tenant's normal business operations or if Tenant conducts all or any
part of its operations in any portion of the Premises notwithstanding such
Service Interruption, then the amount of each daily abatement of Basic Rent
and Escalation Charges shall only be proportionate to the nature and extent
of the interruption of Tenant's normal operations or ability to use the
Premises. The rights granted to Tenant under this paragraph (b) shall be
Tenant's sole and exclusive remedy resulting from a failure of Landlord to
provide services, and Landlord shall not otherwise be liable for any loss
or damage suffered or sustained by Tenant resulting from any failure or
cessation of services. For purposes hereof, the term "Essential Services"
shall mean the following services: access to the Premises, gas, water and
sewer/septic service and electricity, but only to the extent that Landlord
has an obligation to provide same to Tenant under this Lease. Any abatement
of Basic Rent under this paragraph shall apply only with respect to Basic
Rent allocable to the period after each of the conditions set forth in
subsections (i) through (iv) hereof shall have been satisfied and only
during such times as each of such conditions shall exist.
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ARTICLE 8
REAL ESTATE TAXES
8.1 Payments on Account of Real Estate Taxes.
(a) "Tax Year" shall mean a twelve-month period commencing on July 1
and falling wholly or partially within the Term, and "Taxes" shall mean (i)
all taxes, assessments (special or otherwise), levies, fees and all other
government levies, exactions and charges of every kind and nature, general
and special, ordinary and extraordinary, foreseen and unforeseen, which
are, at any time prior to or during the Term, imposed or levied upon or
assessed against the Property or any portion thereof, or against any Basic
Rent, Additional Rent or other rent of any kind or nature payable to
Landlord by anyone on account of the ownership, leasing or operation of the
Property, or which arise on account of or in respect of the ownership,
development, leasing, operation or use of the Property or any portion
thereof; (ii) all gross receipts taxes or similar taxes imposed or levied
upon, assessed against or measured by any Basic Rent, Additional Rent or
other rent of any kind or nature or other sum payable to Landlord by anyone
on account of the ownership, development, leasing, operation, or use of the
Property or any portion thereof; (iii) all value added, use and similar
taxes at any time levied, assessed or payable on account of the ownership,
development, leasing, operation, or use of the Property or any portion
thereof; and (iv) reasonable expenses of any proceeding for abatement of
any of the foregoing items included in Taxes, provided Landlord prevails in
such abatement proceeding; but the amount of special taxes or special
assessments included in Taxes shall be limited to the amount of the
installment (plus any interest, other than penalty interest, payable
thereon) of such special tax or special assessment required to be paid
during the year in respect of which such Taxes are being determined. There
shall be excluded from Taxes (i) any interest, penalty, charge or
assessment arising from the failure of Landlord to pay taxes when due and
(ii) all income, estate, succession, inheritance and transfer taxes of
Landlord; provided, however, that if at any time during the Term the
present system of ad valorem taxation of real property shall be changed so
that a capital levy, franchise, income, profits, sales, rental, use and
occupancy, or other tax or charge shall in whole or in part be substituted
for, or added to, such ad valorem tax and levied against, or be payable by,
Landlord with respect to the Property or any portion thereof, such tax or
charge shall be included in the term "Taxes" for the purposes of this
Article.
(b) Tenant shall pay to Landlord Tenant's Proportionate Share of Taxes
for such Tax Year, such amount to be apportioned for any portion of a Tax
Year in which the Commencement Date falls or the Term expires. Tenant's
payment of its Proportionate Share of Taxes shall include the period from
the Commencement Date to the Rent Commencement Date. In the event that the
Property Rentable Area shall change during the Term of this lease Tenant's
Proportionate Share of Taxes shall be adjusted pro rata.
(c) Estimated payments by Tenant on account of Taxes shall be made on
the first day of each and every calendar month during the Term of this
Lease, commencing on the Commencement Date in the fashion herein provided
for the payment of Basic Rent. The
27
monthly amount so to be paid to Landlord shall be sufficient to provide
Landlord by the time real estate tax payments are due with a sum equal to
Tenant's required payment, as reasonably estimated by Landlord from time to
time, on account of Taxes for the then current Tax Year. Promptly after
receipt by Landlord of bills for such Taxes, Landlord shall advise Tenant
of the amount thereof and the computation of Tenant's payment on account
thereof. If estimated payments theretofore made by Tenant for the Tax Year
covered by such bills exceed the required payment on account thereof for
such Tax Year, Landlord shall credit the amount of overpayment against
subsequent obligations of Tenant on account of Taxes (or promptly refund
such overpayment if the Term of this Lease has ended and Tenant has no
further obligation to Landlord); but if the required payments on account
thereof for such Tax Year are greater than estimated payments theretofore
made on account thereof for such Tax Year, Tenant shall pay the difference
to Landlord within thirty (30) days after being so advised by Landlord, and
the obligation to make such payment for any period within the Term shall
survive expiration of the Term.
8.2 Abatement. If Landlord shall receive any tax refund or reimbursement of
Taxes or sum in lieu thereof with respect to any Tax Year all or any portion of
which falls within the Term, then out of any balance remaining thereof after
deducting Landlord's reasonable expenses in obtaining such refund, Landlord
shall pay to Tenant, provided there does not then exist an Event of Default, an
amount equal to such refund or reimbursement or sum in lieu thereof (exclusive
of any interest, and apportioned if such refund is for a Tax Year a portion of
which falls outside the Term,) multiplied by Tenant's Proportionate Share;
provided, that in no event shall Tenant be entitled to receive more than the
payments made by Tenant on account of Taxes for such Tax Year pursuant to
paragraph (b) of Section 8.1.
ARTICLE 9
OPERATING AND UTILITY EXPENSES
9.1 Definitions. For the purposes of this Article, the following terms
shall have the following respective meanings:
(a) "Operating Year" shall mean each calendar year, all or any part of
which falls within the Term.
(b) "Operating Expenses" shall mean the aggregate costs and expenses
incurred by Landlord with respect to the operation, administration,
cleaning, repair, maintenance and management of the Property, all as set
forth in Exhibit D annexed hereto ("Operating Services"), provided that, if
during any portion of the Operating Year for which Operating Expenses are
being computed, less than all of the rentable area of the Property was
occupied by tenants or if Landlord is not supplying all tenants with the
Operating Services being supplied hereunder, actual Operating Expenses
incurred shall be reasonably extrapolated by Landlord on an item by item
basis to the estimated Operating Expenses that would have been incurred if
ninety-five percent (95%)
28
of the Property were fully occupied for such Operating Year and such
services were being supplied to all tenants, and such extrapolated amount
shall, for the purposes hereof, be deemed to be included in the Operating
Expenses for such Year. Furthermore, if during any Operating Year for which
Operating Expenses are computed, Landlord has agreed to supply an Operating
Service to a particular tenant of the Property and such tenant has agreed
to pay one hundred percent (100%) of the cost of such Operating Service,
then the costs associated with providing such Operating Service to such
tenant shall not be included in Operating Expenses. Actual Operating
Expenses incurred in providing such Operating Service to the other tenants
of the Property shall be reasonably extrapolated by Landlord on an item by
item basis to the estimated Operating Expenses that would have been
incurred if ninety-five percent (95%) of the Property were fully occupied
for such Year and such services were being supplied to all tenants, and
such extrapolated amount shall, for the purposes hereof, be deemed to be
the Operating Expenses attributable to such Operating Service for such
Year.
9.2 Tenant's Payment of Operating Expenses.
(a) Tenant shall pay to Landlord, as an Escalation Charge, an amount
equal to Tenant's Proportionate Share of Operating Expenses, such amount to
be apportioned for any portion of an Operating Year in which the Rent
Commencement Date falls or the Term of this Lease ends. For the period from
the Commencement Date to the Rent Commencement Date, Tenant's payment of
Operating Expenses shall be equal to the actual amount of Operating
Expenses incurred with respect to the Premises, but in no event shall
exceed $1.75 per square foot.
(b) Estimated payments by Tenant on account of Operating Expenses
shall be made on the first day of each and every calendar month during the
Term of this Lease, commencing on the Commencement Date in the fashion
herein provided for the payment of Basic Rent. The monthly amount so to be
paid to Landlord shall be sufficient to provide Landlord by the end of each
Operating Year a sum equal to Tenant's required payment, as reasonably
estimated by Landlord from time to time during each Operating Year, on
account of Operating Expenses for such Operating Year. Within ninety (90)
days after the end of each Operating Year, Landlord shall submit to Tenant
a reasonably detailed accounting of Operating Expenses for such Operating
Year, and Landlord shall certify to the accuracy thereof. If estimated
payments theretofore made for such Operating Year by Tenant exceed Tenant's
required payment on account thereof for such Operating Year according to
such statement, Landlord shall credit the amount of overpayment against
subsequent obligations of Tenant with respect to Operating Expenses (or
promptly refund such overpayment if the Term of this Lease has ended and
Tenant has no further obligation to Landlord); but if the required payments
on account thereof for such Operating Year are greater than the estimated
payments (if any) theretofore made on account thereof for such Operating
Year, Tenant shall make payment to Landlord within thirty (30) days after
being so advised by Landlord, and the obligation to make such payment for
any period within the Term shall survive expiration of the Term.
29
(c) Tenant shall have the right to examine, copy and audit Landlord's
books and records establishing Operating Expenses for any Operating Year
for a period of one (1) year following the date that Tenant receives the
statement of Operating Expenses for such Operating Year from Landlord.
Tenant shall give Landlord not less than thirty (30) days' prior notice of
its intention to examine and audit such books and records, and such
examination and audit shall take place at such place within the city and
state in which the Property is located. All costs of the examination and
audit shall be borne by Tenant; provided, however, that if such examination
and audit establishes that the actual Operating Expenses for the Operating
Year in question are less than the amount set forth as the annual Operating
Expenses on the annual statement delivered to Tenant by at least ten
percent (10%), then Landlord shall pay the reasonable costs of such
examination and audit. If, pursuant to the audit, the payments made for
such Operating Year by Tenant exceed Tenant's required payment on account
thereof for such Operating Year, Landlord shall credit the amount of
overpayment against subsequent obligations of Tenant with respect to
Operating Expenses (or promptly refund such overpayment if the Term of this
Lease has ended and Tenant has no further obligation to Landlord); but, if
the payments made by Tenant for such Operating Year are less than Tenant's
required payment as established by the examination and audit, Tenant shall
pay the deficiency to Landlord within thirty (30) days after conclusion of
the examination and audit, and the obligation to make such payment for any
period within the Term shall survive expiration of the Term. If Tenant does
not elect to exercise its right to examine and audit Landlord's books and
records for any Operating Year within the time period provided for by this
paragraph, Tenant shall have no further right to challenge Landlord's
statement of Operating Expenses.
9.3 Utility Payments. Tenant shall be responsible for the payment of all
water, electricity and gas used and consumed in the Premises, provided Landlord
has separately metered the same as required above. Tenant shall pay for
electricity and natural gas directly to the utility company on or before the
date when due. The obligation to pay for electricity and natural gas used and
consumed in the Premises during the last month of the Term hereof shall survive
expiration of the Term.
ARTICLE 10
INDEMNITY AND PUBLIC LIABILITY INSURANCE
10.1 Tenant's Indemnity. Except to the extent arising from the gross
negligence or willful misconduct of Landlord or its agents or employees, Tenant
agrees to indemnify and save harmless Landlord and Landlord's partners, members,
shareholders, officers, directors, managers, employees, agents and contractors
and any Holder from and against all claims, losses, cost, damages, liability or
expenses of whatever nature arising from: (i) any accident, injury or damage
whatsoever to any person, or to the property of any person, occurring in the
Premises; (ii) any accident, injury or damage whatsoever to any person, or to
the property of any person, occurring outside of the Premises, but on the
Property, where such accident, damage or injury results from any negligence or
willful misconduct on the part of Tenant or Tenant's agents,
30
employees, contractors, invitees or sublessees; or (iii) the use or occupancy of
the Premises or of any business conducted therein or anything or work whatsoever
done or any condition created (other than by Landlord) in the Premises, and, in
any case, occurring after the Commencement Date (or such earlier date as of
which Tenant takes possession of the Premises) until the expiration of the Term
of this Lease and thereafter so long as Tenant is in occupancy of any part of
the Premises. This indemnity and hold harmless agreement shall include indemnity
against all losses, costs, damages, expenses and liabilities incurred in or in
connection with any such claim or any proceeding brought thereon, and the
defense thereof, including, without limitation, reasonable attorneys' fees and
costs at both the trial and appellate levels. The provisions of this Section
10.1 shall survive the expiration or earlier termination of this Lease.
10.2 Tenant Insurance. Tenant agrees to maintain in full force from the
date upon which Tenant first enters the Premises for any reason, throughout the
Term of this Lease, and thereafter so long as Tenant is in occupancy of any part
of the Premises, a policy of commercial general liability and property damage
insurance (including broad form contractual liability, independent contractor's
hazard and completed operations coverage) under which Tenant is named as an
insured and Landlord, and, at Landlord's request, Landlord's property manager,
any Holder, and such other persons as Landlord reasonably may request are named
as additional insureds, and under which the insurer agrees to indemnify and hold
Landlord and such other additional named insureds harmless from and against all
cost, expense and/or liability arising out of or based upon any and all claims,
accidents, injuries and damages set forth in Section 10.1. Tenant may satisfy
such insurance requirements by including the Premises in a so-called "blanket"
and/or "umbrella" insurance policy, provided that the amount of coverage
allocated to the Premises shall fulfill the requirements set forth herein. Each
policy required hereunder shall be non-cancelable and non-amendable with respect
to Landlord and Landlord's said designees without thirty (30) days' prior
notice, shall be written on an "occurrence" basis, and shall be in at least the
amounts of the Initial General Liability Insurance specified in Section 1.1 or
such greater amounts as Landlord in its reasonable discretion shall from time to
time request, and a duplicate original or certificates thereof reasonably
satisfactory to Landlord, together with a photocopy of the entire policy, shall
be delivered to Landlord.
10.3 Tenant's Risk. Tenant agrees that its use and occupancy of the
Premises and its use of such other portions of the Property as Tenant is herein
given the right to use shall be at Tenant's own risk. Landlord shall not be
liable to Tenant, its employees, agents, invitees or contractors for any damage,
injury, loss, compensation, or claim (including, but not limited to, claims for
the interruption of or loss to Tenant's business) based on, arising out of or
resulting from any cause whatsoever, including, but not limited to, repairs to
any portion of the Premises or the Property, any fire, robbery, theft,
mysterious disappearance and/or any other crime or casualty, the actions of any
other tenants of the Building or of any other person or persons, or any leakage
in any part or portion of the Premises or the Building, or from water, rain or
snow that may leak into, or flow from any part of the Premises or the Building,
or from drains, pipes or plumbing fixtures in the Building, unless due to the
negligence or willful misconduct of Landlord or Landlord's agents, employees, or
contractors. Any goods, property or personal
31
effects stored or placed in or about the Premises shall be at the sole risk of
Tenant, and neither Landlord nor Landlord's insurers shall in any manner be held
responsible therefore unless due to the negligence or willful misconduct of
Landlord, Landlord's agents, or its employees. Landlord shall not be responsible
or liable to Tenant, or to those claiming by, through or under Tenant, for any
loss or damage that may be occasioned by or through the acts or omissions of
persons occupying adjoining premises or any part of the premises adjacent to or
connecting with the Premises or any part of the Property or otherwise.
Notwithstanding the foregoing, Landlord shall not be released from liability for
any injury, loss, damages or liability to the extent arising from any negligence
or willful misconduct of Landlord, its servants, employees or agents acting
within the scope of their authority on or about the Premises; provided, however,
that in no event shall Landlord, its servants, employees or agents have any
liability to Tenant based on any loss with respect to or interruption in the
operation of Tenant's business. Tenant shall carry "all-risk" property insurance
on a "replacement cost" basis, insuring Tenant's Removable Property and any
Alterations made by Tenant pursuant to Section 5.2, to the extent that the same
have not become the property of Landlord. The provisions of this Section 10.3
shall be applicable from and after the execution of this Lease and until the end
of the Term of this Lease, and during such further period as Tenant may use or
be in occupancy of any part of the Premises or of the Building.
10.4 Waiver of Subrogation. The parties hereto shall each procure an
appropriate clause in, or endorsement on, any property insurance policy on the
Premises, the Property, or any personal property, fixtures or equipment located
thereon or therein, pursuant to which the insurer waives subrogation or consents
to a waiver of right of recovery in favor of either party, its respective agents
or employees. Having obtained such clauses and/or endorsements, each party
hereby agrees that it will not make any claim against or seek to recover from
the other or its agents or employees for any loss or damage to its property or
the property of others resulting from fire or other perils covered by such
property insurance (or which would have been covered had all insurance required
hereunder been maintained).
ARTICLE 11
FIRE, EMINENT DOMAIN, ETC.
11.1 Landlord's Right of Termination. Within sixty (60) days after damage
by fire or other casualty, Landlord shall provide Tenant with a good faith
estimate of the time to restore the Premises and/or Building. If the Premises or
the Building are substantially damaged by fire or casualty (the term
"substantially damaged" meaning damage of such a character that the same cannot,
in the ordinary course, reasonably be expected to be repaired within one hundred
twenty (120) days from the time that repair work would commence), or if any part
of the Building is taken by any exercise of the right of eminent domain, then
Landlord shall have the right to terminate this Lease (even if Landlord's entire
interest in the Premises may have been divested) by giving notice of Landlord's
election so to do within sixty (60) days after the occurrence of such casualty
or the effective date of such taking, whereupon this Lease shall terminate
thirty (30) days after the date of such notice with the same force and effect as
if such date were the date
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originally established as the expiration date hereof, provided that if the
Premises are not damaged and the Premises need not be vacant for Landlord to
restore the damaged portion(s) of the Building, then such termination right
shall be available only if all other leases in the Building are also terminated.
11.2 Restoration; Tenant's Right of Termination. If the Premises or the
Building are damaged by fire or other casualty, and this Lease is not terminated
pursuant to Section 11.1, Landlord shall thereafter use reasonable efforts to
restore the Building and the Premises (excluding any Alterations made by Tenant
pursuant to Section 5.2 which have not become the property of the Landlord) to
proper condition for Tenant's use and occupation, provided that Landlord's
obligation shall be limited to the amount of insurance proceeds available
therefore, (but such limitation shall only apply if all insurance required to be
maintained by Landlord hereunder is in effect at the time of such fire or
casualty) and Landlord shall not be obligated to commence restoration until
Landlord has received the insurance proceeds. If, for any reason, such
restoration shall not be substantially completed within six (6) months after the
expiration of the sixty-day period referred to in Section 11.1 (which six-month
period may be extended for such periods of time as Landlord is prevented from
proceeding with or completing such restoration due to Force Majeure, but in no
event for more than an additional three (3) months), Tenant shall have the right
to terminate this Lease by giving notice to Landlord thereof within thirty (30)
days after the expiration of such period (as so extended) provided that such
restoration is not completed within such period. This Lease shall cease and come
to an end without further liability or obligation on the part of either party
thirty (30) days after such giving of notice by Tenant unless, within such
thirty-day period, Landlord substantially completes such restoration. Such right
of termination shall be Tenant's sole and exclusive remedy at law or in equity
for Landlord's failure so to complete such restoration, and time shall be of the
essence with respect thereto.
11.3 Landlord's Insurance. Landlord agrees to maintain in full force and
effect, during the Term of this Lease, property damage insurance with such
deductibles and in such amounts as may from time to time be carried by
reasonably prudent owners of similar buildings in the area in which the Property
is located, provided that in no event shall Landlord be required to carry other
than fire and extended coverage insurance or insurance in amounts equal to 100%
of the actual insurable cash value of the Building (excluding footings and
foundations). Landlord may satisfy such insurance requirements by including the
Property in a so-called "blanket" insurance policy, provided that the amount of
coverage allocated to the Property shall fulfill the foregoing requirements.
11.4 Abatement of Rent. If the Premises or the Building are damaged by fire
or other casualty, Basic Rent and Escalation Charges payable by Tenant shall
abate proportionately for the period during which, by reason of such damage,
there is substantial interference with Tenant's use of, or access to the
Premises, having regard for the extent to which Tenant may be required to
discontinue Tenant's use of all or an undamaged portion of the Premises due to
such damage, but such abatement or reduction shall end if and when Landlord
shall have substantially
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completed sufficient restoration that Tenant is reasonably able to use the
Premises and the Premises are in substantially the condition in which they were
prior to such damage (excluding any Alterations made by Tenant pursuant to
Section 5.2) which have not become the property of the Landlord). If such fire
or other casualty occurs during the period between the Commencement Date and the
Rent Commencement Date, the Rent Commencement Date shall be delayed one day for
each day from the date of the casualty until Landlord shall have substantially
completed sufficient restoration such that Tenant is reasonably able to commence
construction of Tenant's Work, and all Escalation Charges shall abate during
such period. If the Premises shall be affected by any exercise of the power of
eminent domain, Basic Rent and Escalation Charges payable by Tenant shall be
justly and equitably abated and reduced according to the nature and extent of
the loss of use thereof suffered by Tenant. In no event shall Landlord have any
liability for damages to Tenant for inconvenience, annoyance, or interruption of
business arising from any fire or other casualty or eminent domain.
11.5 Condemnation Award. Landlord shall have and hereby reserves and
excepts, and Tenant hereby grants and assigns to Landlord, all rights to recover
for damages to the Property and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of any taking, by exercise
of the right of eminent domain, and by way of confirming the foregoing, Tenant
hereby grants and assigns, and covenants with Landlord to grant and assign to
Landlord, all rights to such damages or compensation, and covenants to deliver
such further assignments and assurances thereof as Landlord may from time to
time request, and Tenant hereby irrevocably appoints Landlord its
attorney-in-fact to execute and deliver in Tenant's name all such assignments
and assurances. Nothing contained herein shall be construed to prevent Tenant
from prosecuting in any condemnation proceedings a claim for the value of any of
Tenant's Removable Property installed in the Premises by Tenant at Tenant's
expense and for relocation expenses, provided that such action shall not affect
the amount of compensation otherwise recoverable by Landlord from the taking
authority.
ARTICLE 12
HOLDING OVER; SURRENDER
12.1 Holding Over. Any holding over by Tenant after the expiration of the
Term of this Lease shall be treated as a daily tenancy at sufferance at an
amount equal to two (2) times the Basic Rent then in effect plus Escalation
Charges and other Additional Rent herein provided (prorated on a daily basis).
Tenant shall also pay to Landlord all damages, direct and/or indirect, sustained
by reason of any such holding over. In all other respects, such holding over
shall be on the terms and conditions set forth in this Lease as far as
applicable.
12.2 Surrender of Premises. Upon the expiration or earlier termination of
the Term of this Lease, Tenant shall peaceably quit and surrender to Landlord
the Premises in neat and clean condition and in good order, condition and
repair, together with all alterations, additions and improvements which may have
been made or installed in, on or to the Premises prior to or
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during the Term of this Lease (except as hereinafter provided), excepting only
ordinary wear and use, damage by fire or other casualty, and taking by eminent
domain. Tenant shall remove all of Tenant's Removable Property and, to the
extent specified by Landlord at the time of Landlord's consent thereto, all
alterations, installations and additions made by Tenant (excluding Tenant's
Work, other than the Tank) and all partitions wholly within the Premises unless
installed initially by Landlord in preparing the Premises for Tenant's
occupancy; and shall repair any damages to the Premises, the Building, or the
Property caused by such removal, subject to Section 10.4 above. Any Tenant's
Removable Property which shall remain in the Building or on the Premises after
the expiration or termination of the Term of this Lease (and vacancy thereof by
Tenant) shall be deemed conclusively to have been abandoned, and either may be
retained by Landlord as its property or may be disposed of in such manner as
Landlord may see fit, at Tenant's sole cost and expense.
ARTICLE 13
RIGHTS OF MORTGAGEES; TRANSFER OF TITLE
13.1 Rights of Mortgagees.
(a) This Lease shall be subordinate to any mortgage, deed of trust or
ground lease or similar encumbrance (collectively, a "Mortgage", and the
holder thereof from time to time the "Holder") from time to time
encumbering the Premises, whether executed and delivered prior to or
subsequent to the date of this Lease, unless the Holder shall elect
otherwise. If this Lease is subordinate to any Mortgage and the Holder or
any other party shall succeed to the interest of Landlord pursuant to the
Mortgage (such Holder or other party, a "Successor"), at the election of
the Successor), Tenant shall attorn to the Successor and this Lease shall
continue in full force and effect between the Successor and Tenant. Not
more than fifteen (15) days after Landlord's written request, Tenant agrees
to execute such instruments of subordination or attornment in confirmation
of the foregoing agreement as the Successor reasonably may request.
(b) Landlord represents and warrants that the only Mortgage which
encumbers the Property as of the date of this Lease is held by UBS
Principal Finance LLC (the "Existing Holder"). Tenant acknowledges that
Landlord has delivered Existing Holder's form of Non-Disturbance Agreement
to Tenant. Landlord agrees to use best efforts to have the Existing Holder
enter into such Non-Disturbance Agreement with Tenant. Tenant agrees to use
commercially reasonable efforts to enter into such Non-Disturbance
Agreement with Existing Holder. In addition, Landlord agrees to use best
efforts to obtain any subsequent Holder's written agreement that, subject
to such reasonable qualifications as the Holder may impose, in the event
that the Holder or any other party shall succeed to the interest of
Landlord hereunder pursuant to such Mortgage, so long as no Event of
Default exists hereunder, Tenant's right to possession of the Premises
shall not be disturbed and Tenant's other rights hereunder shall not be
adversely affected by any foreclosure of such Mortgage, and such Holder
shall recognize Tenant as its tenant on the terms and conditions of this
Lease. For purposes hereof, the term "best
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efforts" shall not include the payment of any sum of money or the consent
to less favorable terms and conditions with respect to the obligations or
indebtedness secured or created by the Mortgage.
13.2 Assignment of Rents and Transfer of Title.
(a) With reference to any assignment by Landlord of Landlord's
interest in this Lease, or the rents payable hereunder, conditional in
nature or otherwise, which assignment is made to the holder of a mortgage
on property which includes the Premises, Tenant agrees that the execution
thereof by Landlord, and the acceptance thereof by the holder of such
mortgage shall never be treated as an assumption by such holder of any of
the obligations of Landlord hereunder unless such holder shall, by notice
sent to Tenant, specifically otherwise elect and, except as aforesaid, such
holder shall be treated as having assumed Landlord's obligations hereunder
only upon foreclosure of such holder's mortgage and the taking of
possession of the Premises.
(b) In no event shall the acquisition of Landlord's interest in the
Property by a purchaser which, simultaneously therewith, leases Landlord's
entire interest in the Property back to the seller thereof be treated as an
assumption by operation of law or otherwise, of Landlord's obligations
hereunder, but Tenant shall look solely to such seller-lessee, and its
successors from time to time in title, for performance of Landlord's
obligations hereunder. In any such event, this Lease shall be subject and
subordinate to the lease to such purchaser provided that Tenant's rights
under this Lease are not disturbed. For all purposes, such seller-lessee,
and its successors in title, shall be the Landlord hereunder unless and
until Landlord's position shall have been assumed by such purchaser-lessor.
(c) Except as provided in paragraph (b) of this Section, in the event
of any transfer of title to the Property by Landlord, Landlord shall
thereafter be entirely freed and relieved from the performance and
observance of all covenants and obligations hereunder provided such
transferee assumes all of Landlord's obligations hereunder in writing.
13.3 Notice to Mortgagee. After receiving notice from Landlord of any
Holder of a Mortgage which includes the Premises, no notice from Tenant to
Landlord alleging any default by Landlord shall be effective unless and until a
copy of the same is given to such Holder (provided Tenant shall have been
furnished with the name and address of such Holder), and the curing of any of
Landlord's defaults by such Holder shall be treated as performance by Landlord.
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ARTICLE 14
DEFAULT; REMEDIES
14.1 Tenant's Default.
(a) If at any time subsequent to the date of this Lease any one or
more of the following events (herein referred to as an "Event of Default")
shall occur:
(i) Tenant shall fail to pay the Basic Rent, Escalation Charges
or any other Additional Rent hereunder when due and such failure shall
continue for five (5) Business Days after notice to Tenant from
Landlord; or
(ii) Tenant shall neglect or fail to perform or observe any other
covenant herein contained on Tenant's part to be performed or observed
and Tenant shall fail to remedy the same within thirty (30) days after
notice to Tenant specifying such neglect or failure, or if such
failure is of such a nature that Tenant cannot reasonably remedy the
same within such thirty (30) day period, Tenant shall fail to commence
promptly (and in any event within such thirty (30) day period) to
remedy the same and to prosecute such remedy to completion with
diligence and continuity (and in any event, within ninety (90) days
after the notice described in this subparagraph (ii)); or
(iii) Tenant's leasehold interest in the Premises shall be taken
on execution or by other process of law directed against Tenant; or
(iv) Tenant shall make an assignment for the benefit of creditors
or shall be adjudicated insolvent, or shall file any petition or
answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself
under any present or future Federal, State or other statute, law or
regulation for the relief of debtors (other than the Bankruptcy Code,
as hereinafter defined), or shall seek or consent to or acquiesce in
the appointment of any trustee, receiver or liquidator of Tenant or of
all or any substantial part of its properties, or shall admit in
writing its inability to pay its debts generally as they become due;
or
(v) An Event of Bankruptcy (as hereinafter defined) shall occur
with respect to Tenant; or
(vi) A petition shall be filed against Tenant under any law
(other than the Bankruptcy Code) seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or
similar relief under any present or future Federal, State or other
statute, law or regulation and shall remain undismissed or unstayed
for an aggregate of ninety (90) days (whether or not consecutive), or
if any trustee, conservator, receiver or liquidator of Tenant or of
all or any substantial part of its properties shall be appointed
without the consent or acquiescence of Tenant and such appointment
shall remain
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unvacated or unstayed for an aggregate of ninety (90) days (whether or
not consecutive); or
(vii) If: (x) Tenant shall fail to pay the Basic Rent, Escalation
Charges or any other Additional Rent hereunder when due or shall fail
to perform or observe any other covenant herein contained on Tenant's
part to be performed or observed and Tenant shall cure any such
failure within the applicable grace period set forth in clauses (i) or
(ii) above; or (y) an Event of Default of the kind set forth in
clauses (i) or (ii) above shall occur and Landlord shall, in its sole
discretion, permit Tenant to cure such Event of Default after the
applicable grace period has expired; and the same or a similar failure
shall occur more than once twice within the next 365 days (whether or
not such similar failure is cured within the applicable grace period);
then in any such case, Landlord may terminate this Lease as hereinafter provided
and exercise any other rights or remedies available under this Lease, at law or
in equity. .
(b) For purposes of clause (a)(v) above, an "Event of Bankruptcy"
means the filing of a voluntary petition by Tenant, or the entry of an
order for relief against Tenant, under Chapter 7, 11, or 13 of the
Bankruptcy Code, and the term "Bankruptcy Code" means 11 U.S.C ss.101,
et seq.. If an Event of Bankruptcy occurs, then the trustee of
Tenant's bankruptcy estate or Tenant as debtor-in-possession may
(subject to final approval of the court) assume this Lease, and may
subsequently assign it, only if it does the following within sixty
(60) days after the date of the filing of the voluntary petition, the
entry of the order for relief (or such additional time as a court of
competent jurisdiction may grant, for cause, upon a motion made within
the original sixty-day period):
(i) file a motion to assume the Lease with the appropriate
court;
(ii) satisfy all of the following conditions, which Landlord
and Tenant acknowledge to be commercially reasonable:
(A) cure all Defaults of Tenant under this Lease or
provide Landlord with Adequate Assurance (as defined below)
that it will (x) cure all monetary Defaults of Tenant
hereunder within ten (10) days from the date of the
assumption; and (y) cure all nonmonetary Defaults of Tenant
hereunder within thirty (30) days from the date of the
assumption;
(B) compensate Landlord and any other person or entity,
or provide Landlord with Adequate Assurance that within ten
(10) days after the date of the assumption, it will
compensate Landlord and such other person or entity, for any
pecuniary loss that Landlord and such other person or entity
incurred as a result of any Event of Default, the trustee,
or the debtor-in-possession;
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(C) provide Landlord with Adequate Assurance of Future
Performance (as defined below) of all of Tenant's
obligations under this Lease; and
(D) deliver to Landlord a written statement that the
conditions herein have been satisfied.
(c) For purposes only of the foregoing paragraph (b), and in addition
to any other requirements under the Bankruptcy Code, any future federal
bankruptcy law and applicable case law, "Adequate Assurance" means at least
meeting the following conditions, which Landlord and Tenant acknowledge to
be commercially reasonable:
(i) entering an order segregating sufficient cash to pay Landlord
and any other person or entity under paragraph (b) above, and
(ii) granting to Landlord a valid first lien and security
interest (in form acceptable to Landlord) in all property comprising
the Tenant's "property of the estate," as that term is defined in
Section 541 of the Bankruptcy Code, located on, used at or relating to
the Premises, which lien and security interest secures the trustee's
or debtor-in-possession's obligation to cure the monetary and
nonmonetary defaults under the Lease within the periods set forth in
paragraph (b) above.
(d) For purposes only of paragraph (b) above, and in addition to any
other requirements under the Bankruptcy Code, any future federal bankruptcy
law and applicable case law, "Adequate Assurance of Future Performance"
means at least meeting the following conditions, which Landlord and Tenant
acknowledge to be commercially reasonable:
(i) the trustee or debtor-in-possession depositing with Landlord,
as security for the timely payment of rent and other monetary
obligations, an amount equal to the sum of two (2) months' Basic Rent
plus an amount equal to two (2) months' installments on account of
Escalation Charges;
(ii) the trustee or the debtor-in-possession agreeing to pay in
advance, on each day that the Basic Rent is payable, the monthly
installments on account of Escalation Charges;
(iii) the trustee or debtor-in-possession providing adequate
assurance of the source of the rent and other consideration due under
this Lease;
(iv) Tenant's bankruptcy estate and the trustee or
debtor-in-possession providing Adequate Assurance of the feasibility
of the bankruptcy estate (and any successor after the conclusion of
the Tenant's bankruptcy proceedings) continuing to have sufficient
unencumbered assets after the payment of all secured obligations and
administrative expenses to assure Landlord that the bankruptcy estate
(and any successor
39
after the conclusion of the Tenant's bankruptcy proceedings) will have
sufficient funds to fulfill Tenant's obligations hereunder.
(e) If the trustee or the debtor-in-possession assumes the Lease under
paragraph (b) above and applicable bankruptcy law, it may assign its
interest in this Lease only if the proposed assignee first provides
Landlord with Adequate Assurance of Future Performance of all of Tenant's
obligations under the Lease, and if Landlord determines, in the exercise of
its reasonable business judgment, that the assignment of this Lease will
not breach any other lease, or any mortgage, financing agreement, or other
agreement relating to the Property by which Landlord or the Property is
then bound (and Landlord shall not be required to obtain consents or
waivers from any third party required under any lease, mortgage, financing
agreement, or other such agreement by which Landlord is then bound).
(f) For purposes only of paragraph (e) above, and in addition to any
other requirements under the Bankruptcy Code, any future federal bankruptcy
law and applicable case law, "Adequate Assurance of Future Performance"
means at least the satisfaction of the following conditions, which Landlord
and Tenant acknowledge to be commercially reasonable:
(i) the proposed assignee submitting a current financial
statement, audited by a certified public accountant, that allows a net
worth and working capital in amounts determined in the reasonable
business judgment of Landlord to be sufficient to assure the future
performance by the assignee of Tenant's obligation under this Lease;
and
(ii) if requested by Landlord in the exercise of its reasonable
business judgment, the proposed assignee obtaining a guarantee (in
form and substance satisfactory to Landlord) from one or more persons
who satisfy Landlord's standards of creditworthiness.
14.2 Landlord's Remedies.
(a) Upon the occurrence of an Event of Default, Landlord may terminate
this Lease by notice to Tenant, specifying a date not less than five (5)
days after the giving of such notice on which this Lease shall terminate
and this Lease shall come to an end on the date specified therein as fully
and completely as if such date were the date herein originally fixed for
the expiration of the Term of this Lease, and Tenant will then quit and
surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided.
(b) If this Lease shall have been terminated as provided in this
Article, or if any execution or attachment shall be issued against Tenant
or any of Tenant's property whereupon the Premises shall be taken or
occupied by someone other than Tenant, then Landlord may re-enter the
Premises, either by summary proceedings, ejectment or otherwise, and remove
and dispossess Tenant and all other persons and any and all property from
the same, as if this Lease had not been made.
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(c) If this Lease shall have been terminated as provided in this
Article, Tenant shall pay the Basic Rent, Escalation Charges and other sums
payable hereunder up to the time of such termination, and thereafter
Tenant, until the end of what would have been the Term of this Lease in the
absence of such termination, and whether or not the Premises shall have
been relet, shall be liable to Landlord for, and shall pay to Landlord, as
liquidated current damages: (x) the Basic Rent, Escalation Charges and
other sums that would be payable hereunder if such termination had not
occurred, less the net proceeds, if any, of any reletting of the Premises,
after deducting all reasonable expenses in connection with such reletting,
including, without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, advertising, alteration costs
and expenses of preparation for such reletting. Tenant shall pay the
portion of such current damages referred to in clause (x) above to Landlord
monthly on the days which the Basic Rent would have been payable hereunder
if this Lease had not been terminated.
(d) At any time after termination of this Lease as provided in this
Article, whether or not Landlord shall have collected any such current
damages, as liquidated final damages and in lieu of all such current
damages beyond the date of such demand, at Landlord's election Tenant shall
pay to Landlord an amount equal to the excess, if any, of the Basic Rent,
Escalation Charges and other sums as hereinbefore provided which would be
payable hereunder from the date of such demand assuming that, for the
purposes of this paragraph, annual payments by Tenant on account of Taxes
and Operating Expenses would be the same as the payments required for the
immediately preceding Operating or Tax Year for what would be the then
unexpired Term of this Lease if the same remained in effect, over the then
fair market rental value of the Premises for the same period.
(e) In case of any Event of Default, re-entry, expiration and
dispossession by summary proceedings or otherwise, Landlord may (i) re-let
the Premises or any part or parts thereof, either in the name of Landlord
or otherwise, for a term or terms which may at Landlord's option be equal
to or less than or exceed the period which would otherwise have constituted
the balance of the Term of this Lease and may grant concessions or free
rent to the extent that Landlord reasonably considers advisable and
necessary to re-let the same and (ii) make such alterations, repairs and
decorations in the Premises as Landlord considers advisable and necessary
for the purpose of reletting the Premises; and the making of such
reasonable alterations, repairs and decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid. Landlord
agrees to use commercially reasonable efforts to relet the Premises after
an Event of Default, provided Tenant has vacated the Premises. Tenant
hereby expressly waives any and all rights of redemption granted by or
under any present or future laws in the event of Tenant being evicted or
dispossessed, or in the event of Landlord obtaining possession of the
Premises, by reason of the violation by Tenant of any of the covenants and
conditions of this Lease.
14.3 Additional Rent. If Tenant shall fail to pay when due any sums under
this Lease designated as an Escalation Charge or other Additional Rent, Landlord
shall have the same rights and remedies as Landlord has hereunder for failure to
pay Basic Rent.
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14.4 Remedying Defaults. Landlord shall have the right, but shall not be
required, to pay such sums or do any act which requires the expenditure of
monies which may be necessary or appropriate by reason of the failure or neglect
of Tenant to perform any of the provisions of this Lease, and in the event of
the exercise of such right by Landlord, Tenant agrees to pay to Landlord
forthwith upon demand all such sums, together with interest thereon at a rate
equal to 3% plus the prime rate published from time to time in The Wall Street
Journal or its successor publication (but in no event less than 18% per annum),
as Additional Rent. Any payment of Basic Rent, Escalation Charges or other sums
payable hereunder not paid when due shall, at the option of Landlord, bear
interest at a rate equal to 3% plus the prime rate published from time to time
in The Wall Street Journal or its successor publication (but in no event less
than 18% per annum), from the due date thereof and shall be payable forthwith on
demand by Landlord, as Additional Rent.
14.5 Remedies Cumulative. The specified remedies to which Landlord may
resort hereunder are not intended to be exclusive of any remedies or means of
redress to which Landlord may at any time be entitled lawfully, and Landlord may
invoke any remedy (including the remedy of specific performance) allowed at law
or in equity as if specific remedies were not herein provided for.
14.6 Enforcement Costs. Tenant shall pay all costs and expenses (including,
without limitation, attorneys' fees and expenses at both the trial and appellate
levels) incurred by or on behalf of Landlord in connection with the successful
enforcement of any rights of Landlord or obligations of Tenant hereunder,
whether or not occasioned by an Event of Default. Landlord shall pay all costs
and expenses (including, without limitation, attorneys' fees and expenses at
both the trial and appellate levels) incurred by or on behalf of Tenant in
connection with the successful enforcement of any rights of Tenant or
obligations of Landlord hereunder, whether or not occasioned by a default of
Landlord.
14.7 Waiver.
(a) Failure on the part of Landlord or Tenant to complain of any
action or non-action on the part of the other, no matter how long the same
may continue, shall never be a waiver by Tenant or Landlord, respectively,
of any of the other's rights hereunder. Further, no waiver at any time of
any of the provisions hereof by Landlord or Tenant shall be construed as a
waiver of any of the other provisions hereof, and a waiver at any time of
any of the provisions hereof shall not be construed as a waiver at any
subsequent time of the same provisions. The consent or approval of Landlord
or Tenant to or of any action by the other requiring such consent or
approval shall not be construed to waive or render unnecessary Landlord's
or Tenant's consent or approval to or of any subsequent similar act by the
other.
(b) No payment by Tenant, or acceptance by Landlord, of a lesser
amount than shall be due from Tenant to Landlord shall be treated otherwise
than as a payment on account of the earliest installment of any payment due
from Tenant under the provisions hereof.
42
The acceptance by Landlord of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such
check, that such lesser amount is payment in full, shall be given no
effect, and Landlord may accept such check without prejudice to any other
rights or remedies which Landlord may have against Tenant.
14.8 Security Deposit.
(a) Simultaneously with the execution of this Lease by Tenant, Tenant
shall provide Landlord with a Security Deposit set forth in Section 1.1,
consisting of an irrevocable, unconditional, absolutely "clean" letter of
credit, in the form of Exhibit H attached hereto and incorporated herein,
in the face amount equal to the Security Deposit, running to Landlord as
the sole beneficiary, to be held, disbursed and/or released in accordance
with this Section 14.8 (the "Letter of Credit"). The Letter of Credit shall
have a stated duration of and shall be effective for at least one (1) year
with provision for automatic successive annual one-year extensions during
the Term and for sixty (60) days after the expiration date or the earlier
termination of the Term, except that if such earlier termination is based
on Tenant's default, Tenant shall keep the Letter of Credit in force until
sixty (60) days after the date when the Term would have expired had it not
been earlier terminated. Tenant shall deliver to Landlord a renewal Letter
of Credit no later than thirty (30) days prior to the expiration date of
any Letter of Credit issued under this Section 14.8, and if Tenant fails to
do so, Landlord may draw the entire amount of the expiring Letter of Credit
and hold the proceeds in cash as the Security Deposit, as hereinafter
provided, but in that event, Tenant shall, upon demand, provide Landlord
with a new Letter of Credit, meeting the requirements of this Lease as the
Security Deposit, in lieu of such cash, and upon delivery of the same, the
cost proceeds shall be immediately returned to Tenant. Each Letter of
Credit shall be issued by Citizen's Bank, or a commercial bank provided
such commercial bank has a credit rating with respect to certificates of
deposit, short term deposits or commercial paper of at least P-2 (or
equivalent) by Moodys Investor Service, Inc., or at least A-2 (or
equivalent) by Standard & Poors Corporation. If the issuers credit rating
is reduced below P-2 (or equivalent) by Moodys Investor Service, Inc., or
at least A-2 (or equivalent) by Standard & Poors Corporation, or if the
financial condition of the issuer changes in any other materially adverse
way, then Landlord shall have the right to require that Tenant obtain from
a different issuer a substitute letter of credit that complies in all
respects with the requirements of this Section, and Tenants failure to
obtain such substitute letter of credit within ten (10) business days after
Landlords written demand therefore (with no other notice or grace or cure
period being applicable thereto) shall entitle Landlord to immediately draw
upon the existing Letter of Credit in full, without any further notice to
Tenant. If the issuer of the Letter of Credit shall admit in writing its
inability to pay its debts generally as they become due, shall file a
petition in bankruptcy or a petition to take advantage of any insolvency
act, shall consent to the appointment of a receiver or conservator of
itself or the whole or any substantial part of its property, shall file a
petition or answer seeking reorganization or arrangement under the United
States Bankruptcy Code, shall have a receiver or conservator appointed or
shall become subject to operational supervision by and Federal or State
regulatory authority, then Tenant within thirty
43
(30) days after written demand by Landlord shall obtain a replacement
Letter of Credit from another financial institution satisfactory to
Landlord, in its reasonable judgment.
(b) The Security Deposit shall constitute security for payment of
Basic Rent and Additional Rent and for any and all other obligations of
Tenant under this Lease. If Tenant defaults with respect to any covenant or
condition of this Lease beyond any applicable notice and grace period,
including but not limited to the payment of Basic Rent, Additional Rent or
any other payment due under this Lease, and/or the obligation of Tenant to
maintain the Premises and deliver possession thereof back to Landlord at
the expiration or earlier termination of the Lease Term in the condition
required herein, Landlord may draw upon the Letter of Credit at any time
and from time to time in such amount or amounts as may be necessary to cure
the default(s) or to reimburse Landlord for any sum(s) which Landlord spent
to cure the default(s), and if Landlord has terminated this Lease due to
Tenant's default(s), Landlord may also draw upon the Letter of Credit in
such amount (or all) as necessary to obtain any amounts from time to time
owed to Landlord by Tenant after termination. In the case of each such
drawing (except a drawing occurring after termination or expiration of this
Lease), Tenant shall, on demand, cause the Letter of Credit to be
reinstated to the full amount that was required hereunder prior to such
drawing, or cause a similar Letter of Credit, aggregating said full amount,
to be issued to Landlord. Any amount drawn by landlord shall not be deemed
to fix or determine the amounts to which Landlord is entitled under this
Lease or otherwise, and Landlord shall be entitled to pursue any remedies
provided for in this Lease to the extent Landlord is unable or elects, in
its sole and absolute discretion, not to obtain complete or partial
satisfaction by drawing upon the Letter of Credit. The parties expressly
acknowledge and agree that the Security Deposit is not an advance payment
of Basic Rent or Additional Rent. If Tenant shall have fully complied with
all of the covenants and conditions of this Lease, but not otherwise, the
Letter of Credit shall be returned to Tenant (or if Landlord shall have
drawn on the same and held the proceeds), the amount of the Security
Deposit then held by Landlord shall be repaid to Tenant within thirty (30)
days after the expiration or sooner termination of this Lease. In the event
of a sale or transfer of Landlord's estate or interest in the Building,
Landlord shall transfer the Security Deposit to the purchaser or
transferee, and Landlord shall be considered released by Tenant from all
liability for the return of the Security Deposit from and after and to the
extent of such transfer.
(c) Notwithstanding anything to the contrary set forth herein, upon
completion of Tenant's Work and occupancy of the Premises, and provided
Tenant is not in default under this Lease beyond any applicable notice and
cure periods, Tenant shall have the right to reduce the amount of the
Security Deposit by Three Hundred Thousand Dollars ($300,000.00). Provided
that Tenant has delivered to Landlord a substitute Letter of Credit in the
amount of Two Hundred Thousand Dollars ($200,000.00) (the "Reduced
Amount"), or an amendment, in form reasonably satisfactory to Landlord, to
the Letter of Credit then being held by Landlord reducing the amount
thereof to the Reduced Amount, and provided that the foregoing conditions
have been satisfied, Landlord shall immediately return the then-current
Letter of Credit to Tenant.
44
14.9 Landlord's Default. Landlord shall in no event be in default under
this Lease unless Landlord shall neglect or fail to perform any of its
obligations hereunder and shall fail to remedy the same within thirty (30) days
after notice to Landlord specifying such neglect or failure, or if such failure
is of such a nature that Landlord cannot reasonably remedy the same within such
thirty (30) day period, Landlord shall fail to commence promptly (and in any
event within such thirty (30) day period) to remedy the same and to prosecute
such remedy to completion with diligence and continuity.
ARTICLE 15
MISCELLANEOUS PROVISIONS
15.1 Rights of Access. Landlord, its agents, contractors and employees
shall have the right to enter the Premises at all reasonable hours and upon
twenty-four (24) hours' advance notice (except in the event of an emergency,
when no notice shall be given) for the purpose of inspecting the Premises, doing
maintenance or making repairs or otherwise exercising its rights or fulfilling
its obligations under this Lease, and Landlord also shall have the right to make
access available at all reasonable hours to prospective or existing mortgagees,
purchasers or tenants of any part of the Property. Landlord shall exercise its
rights under this Article 15 at such time and in such manner so as to minimize
any unreasonable interference with Tenant's use and occupancy of the Premises
and shall comply with Tenant's reasonable security requirements.
15.2 Covenant of Quiet Enjoyment. Subject to the terms and conditions of
this Lease, on payment of the Basic Rent and Escalation Charges and other
Additional Rent and observing, keeping and performing all of the other terms and
conditions of this Lease on Tenant's part to be observed, kept and performed,
Tenant shall lawfully, peaceably and quietly enjoy the Premises during the term
hereof, without hindrance or ejection by any persons lawfully claiming under
Landlord to have title to the Premises superior to Tenant. The foregoing
covenant of quiet enjoyment is in lieu of any other covenant, express or
implied.
15.3 Landlord's Liability.
(a) Tenant agrees to look solely to Landlord's equity interest in the
Property and the proceeds of any insurance carried by Landlord at the time
of recovery for recovery of any judgment against Landlord, and agrees that
neither Landlord nor any successor of Landlord shall be personally liable
for any such judgment, or for the payment of any monetary obligation to
Tenant. The provision contained in the foregoing sentence is not intended
to, and shall not, limit any right that Tenant might otherwise have to
obtain injunctive relief against Landlord or any successor of Landlord, or
to take any action not involving the personal liability of Landlord or any
successor of Landlord to respond in monetary damages from Landlord's assets
other than Landlord's equity interest in the Property.
(b) In no event shall either party ever be liable to the other for any
loss of business or any other indirect or consequential damages suffered by
it from whatever cause.
45
Notwithstanding the foregoing, Landlord shall have all of the rights and
remedies available to it under Section 12.1 in the event that Tenant fails
to surrender the Premises in accordance with the terms of this Lease.
(c) Where provision is made in this Lease for Landlord's consent, and
Tenant shall request such consent, and Landlord shall fail or refuse to
give such consent, Tenant shall not be entitled to any damages for any
withholding by Landlord of its consent (except in the event that Tenant
requests Landlord's consent to an assignment or sublease, or to Tenant's
Work, or to any Alterations, in which case Tenant's damages shall be
limited to $500,000.00), it being intended that Tenant's sole remedy shall
be an action for specific performance or injunction (except in the event
that Tenant requests Landlord's consent to an assignment or sublease, or to
Tenant's Work, or to any Alterations, which remedy shall be as set forth
herein), and that such remedy shall be available only in those cases where
Landlord has expressly agreed in writing not to unreasonably withhold its
consent. Furthermore, whenever Tenant requests Landlord's consent or
approval (whether or not provided for herein), Tenant shall pay to
Landlord, within ten (10) days of demand, as Additional Rent, any
reasonable out-of-pocket expenses incurred by Landlord (including without
limitation reasonable attorneys' fees and costs, if any) in connection
therewith.
(d) Any repairs or restoration required or permitted to be made by
Landlord under this Lease may be made during normal business hours,
provided that such repairs and restoration are conducted in a manner so as
to avoid unreasonable interference with Tenant's use and occupancy of the
Premises, and Landlord shall have no liability for damages to Tenant for
inconvenience, annoyance or interruption of business arising from such
repairs or restoration.
15.4 Estoppel Certificate. Tenant shall, at any time and from time to time,
upon not less than ten (10) business days prior written notice by Landlord,
execute, acknowledge and deliver to Landlord an estoppel certificate containing
such statements of fact as Landlord reasonably requests.
15.5 Brokerage. Tenant warrants and represents that Tenant has dealt with
no broker in connection with the consummation of this Lease other than Broker,
and, in the event of any brokerage claims against Landlord predicated upon prior
dealings with Tenant, Tenant agrees to defend the same and indemnify Landlord
against any such claim (except any claim by Broker). Landlord warrants and
represents that Landlord has dealt with no Broker in connection with the
consummation of this Lease other than Broker, and, in the event of any brokerage
claims against Tenant predicated upon prior dealings with Landlord, Landlord
agrees to defend the same and indemnify Tenant against any such claim. Landlord
shall be responsible for compensating Broker with respect to the consummation of
this Lease.
15.6 Rules and Regulations. Tenant shall abide by the reasonable Rules and
Regulations from time to time established by Landlord, it being agreed that such
Rules and Regulations will be established and applied by Landlord in a
non-discriminatory fashion, such
46
that all Rules and Regulations shall be generally applicable to other tenants of
the Building of similar nature to the Tenant named herein. Landlord agrees to
use reasonable efforts to insure that any such Rules and Regulations are
uniformly enforced, but Landlord shall not be liable to Tenant for violation of
the same by any other tenant or occupant of the Building, or persons having
business with them. In the event that there shall be a conflict between such
Rules and Regulations and the provisions of this Lease, the provisions of this
Lease shall control. The Rules and Regulations currently in effect are set forth
in Exhibit E.
15.7 Invalidity of Particular Provisions. If any term or provision of this
Lease, or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
15.8 Provisions Binding, Etc. Except as herein otherwise provided, the
terms hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant (except in the case
of Tenant, only such successors and assigns as may be permitted hereunder) and,
if Tenant shall be an individual, upon and to his heirs, executors,
administrators, successors and permitted assigns. Each term and each provision
of this Lease to be performed by Tenant shall be construed to be both a covenant
and a condition. Any reference in this Lease to successors and assigns of Tenant
shall not be construed to constitute a consent to assignment by Tenant.
15.9 Recording. Simultaneously with the execution of this Lease, Landlord
and Tenant shall execute a notice of lease in the form attached hereto as
Exhibit J. At Landlord's request, promptly upon expiration of or earlier
termination of the Term, Tenant shall execute and deliver to Landlord a release
of any document recorded in the real property records for the location of the
Property evidencing this Lease, and Tenant hereby appoints Landlord Tenant's
attorney-in-fact, coupled with an interest, to execute any such document if
Tenant fails to respond to Landlord's request to do so within fifteen (15) days.
The obligations of Tenant under this Section shall survive the expiration or any
earlier termination of the Term.
15.10 Notice. All notices or other communications required hereunder shall
be in writing and shall be deemed duly given if delivered in person (with
receipt therefore), if sent by reputable overnight delivery or courier service
(e.g., Federal Express) providing for receipted delivery, or if sent by
certified or registered mail, return receipt requested, postage prepaid, to the
following address:
(a) if to Landlord at Landlord's Address, to the attention of Ted
Saraceno.
(b) if to Tenant, at Tenant's Address, to the attention of Barbara
Burnim Day, and after the Commencement Date, at the Premises.
47
With a copy to:
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110-2704
Attention: Real Estate Department
Where receipt of notice or other communication shall be conclusively
established by either (i) return of a return receipt indicating that the notice
has been delivered; or (ii) return of the letter containing the notice with an
indication from the courier or postal service that the addressee has refused to
accept delivery of the notice. Either party may change its address for the
giving of notices by notice given in accordance with this Section.
15.11 When Lease Becomes Binding; Entire Agreement; Modification. The
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. This Lease is the entire agreement between
Landlord and Tenant, and this Lease expressly supersedes any negotiations,
considerations, representations and understandings and proposals or other
written documents relating hereto. This Lease may be modified or altered only by
written agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.
15.12 Paragraph Headings and Interpretation of Sections. The paragraph
headings throughout this instrument are for convenience and reference only, and
the words contained therein shall in no way be held to explain, modify, amplify
or aid in the interpretation, construction or meaning of the provisions of this
Lease. The provisions of this Lease shall be construed as a whole, according to
their common meaning (except where a precise legal interpretation is clearly
evidenced), and not for or against either party. Use in this Lease of the words
"including," "such as" or words of similar import, when followed by any general
term, statement or matter, shall not be construed to limit such term, statement
or matter to the specified item(s), whether or not language of non-limitation,
such as "without limitation" or "including, but not limited to," or words of
similar import, are used with reference thereto, but rather shall be deemed to
refer to all other terms or matters that could fall within a reasonably broad
scope of such term, statement or matter.
15.13 Dispute Resolution. In the event of a dispute between Landlord and
Tenant pursuant to this Lease (other than a dispute relating to the payment of
Basic Rent and Escalation Charges) the parties agree that prior to pursuing
other available remedies (excluding giving notices of default), they will
attempt to directly negotiate resolution of their dispute. If negotiation is
unsuccessful, then they agree to participate in at least three hours of
mediation to be facilitated by a mediator mutually acceptable to them under the
mediation procedures set by the mediator. The mediation session shall be
conducted within thirty (30) days of the date on
48
which the mediator receives the request to mediate. The costs of such mediation
shall be shared equally by the parties.
15.14 Waiver of Jury Trial. Landlord and Tenant hereby each waive trial by
jury in any action, proceeding or counterclaim brought by either against the
other, on or in respect of any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant or Tenant's
use or occupancy of the Premises.
15.15 Time Is of the Essence. Time is of the essence of each provision of
this Lease.
15.16 Multiple Counterparts. This Lease may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same document.
15.17 Governing Law. This Lease shall be governed by the laws of the state
in which the Property is located.
49
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed, under seal, by persons hereunto duly authorized, as of the date first
set forth above.
LANDLORD:
WEST SEYON LLC
By: /s/ Mahmood Khimij, Esq
-----------------------
Name: Mahmood Khimji, Esq.
Title: Manager
TENANT:
REPLIGEN
By: /s/ Walter Herlihy
-----------------------
Name: Walter Herlihy
Title: President
50
EXHIBIT A
Location Plan of Premises
[Image of Premises]
A-1
EXHIBIT B
Site Plan of Building
[Image of Site Plan of Building]
B-1
EXHIBIT C
Commencement Date Letter
___________________, 2001
[Name of Contact]
[Name of Tenant]
[Address of Tenant]
RE: [Name of Tenant]
[Premises Rentable Area and Floor]
[Address of Building]
Dear [Name of Contact]:
Reference is made to that certain Lease, dated as of _________________,
2001, between [Landlord], as Landlord and [Tenant] as Tenant, with respect to
Premises on the ______floor of the above-referenced building. In accordance with
Section 4.1 of the Lease, this is to confirm that the Commencement Date of the
Term of the Lease occurred on ______________, and that the Term of the Lease
shall expire on ________________.
If the foregoing is in accordance with your understanding, kindly execute
the enclosed duplicate of this letter, and return the same to us.
Very truly yours,
[Landlord]
By:_____________________________________________________________________________
Name:___________________________________________________________________________
Title:__________________________________________________________________________
Accepted and Agreed:
[Tenant]
By:_________________________
Name:_______________________
Title:______________________
Date:_______________________
C-1
EXHIBIT D
Operating Expenses
Operating Expenses shall include the following, without limitation:
1. All expenses incurred by Landlord or Landlord's agents which shall be
directly related to employment of personnel, including amounts incurred for
wages, salaries and other compensation for services, payroll, social
security, unemployment and similar taxes, workmen's compensation insurance,
disability benefits, pensions, hospitalization, retirement plans and group
insurance, uniforms and working clothes and the cleaning thereof, and
expenses imposed on Landlord or Landlord's agents pursuant to any
collective bargaining agreement for the services of employees of Landlord
or Landlord's agents in connection with the operation, repair, maintenance,
cleaning, management and protection of the Property, including, without
limitation, day and night supervisors, manager, accountants, bookkeepers,
janitors, carpenters, engineers, mechanics, electricians and plumbers and
personnel engaged in supervision of any of the persons mentioned above;
provided that, if any such employee is also employed on other property of
Landlord, such compensation shall be suitably prorated among the Property
and such other properties.
2. The cost of services, utilities, materials and supplies furnished or used
in the operation, repair, maintenance, cleaning, management and protection
of the Property.
3. The cost of replacements for tools and other similar equipment used in the
repair, maintenance, cleaning and protection of the Property, provided
that, in the case of any such equipment used jointly on other property of
Landlord, such costs shall be suitably prorated among the Property and such
other properties.
4. Where the Property is managed by Landlord or an affiliate of Landlord, a
sum equal to the amounts customarily charged by management firms in the
Waltham area for similar properties, but in no event more than five percent
(5%) of gross annual income, whether or not actually paid, or where managed
by other than Landlord or an affiliate thereof, the amounts accrued for
management, together with, in either case, amounts accrued for legal and
other professional fees relating to the Property, but excluding such fees
and commissions paid in connection with services rendered for securing or
renewing leases and for matters not related to the normal administration
and operation of the Property. Landlord represents that the current
Management Fee being paid for the Property is as set forth in Section 1.1
hereof.
5. Premiums for insurance against damage or loss to the Property from such
hazards as Landlord shall determine, including, but not by way of
limitation, insurance covering loss of rent attributable to any such
hazards, and public liability insurance.
6. If, during the Term of this Lease, Landlord shall make a capital
expenditure, such capital expenditure shall not be included in Operating
Expenses, except that if Landlord makes a capital expenditure to reduce
Landlord's Operating Expenses, or to comply with laws or regulations
D-1
enacted or promulgated after the date of this Lease, Landlord may include
the annual amortized portion of such capital expenditure in Landlord's
Operating Expenses for each year after the Landlord makes such capital
expenditure until such capital expenditure is fully amortized.
7. Costs for electricity, water and sewer use charges, gas and other utilities
supplied to the Property and not paid for directly by tenants.
8. Betterment assessments, provided the same are apportioned equally over the
longest period permitted by law, and to the extent, if any, not included in
Taxes.
9. Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Property.
10. Notwithstanding the foregoing, Operation Expenses shall not include:
(1) wages, salaries or fringe benefits paid to any employees above the
grade of building manager, or where employees devote time to properties
other than the Property, the portion allocated to such other properties;
(2) leasehold improvements, alterations and decorations which are made
in connection with the preparation of any portion of the Property for
occupancy by a new tenant, or which improvements, alterations, and
decorations are not generally beneficial to all tenants of the Property;
(3) costs incurred in connection with the making of repairs or
replacements which are the obligation of another tenant or occupant of the
Property;
(4) advertising, marketing, promotional, public relations or brokerage
fees, commissions or expenditures;
(5) financing and refinancing costs in respect of any mortgage or
security interest placed upon the Property or any portion thereof,
including payments of principal, interest, finance or other charges, and
any points and commissions in connection therewith;
(6) cost (including, without limitation, attorneys' fees and
disbursements) incurred in connection with any judgment, settlement or
arbitration award resulting from any tort liability;
(7) rent or other charges payable under any ground or underlying
lease;
(8)costs of any item which are reimbursed to Landlord by other tenants
or third parties, or which are properly chargeable or attributable to a
particular tenant or particular tenants;
D-2
(9) any utility or other service used or consumed in the Premises
leased or leasable to any tenant or occupant, including, without
limitation, gas, electricity, water, sewer, cable, heat and air
conditioning, if Tenant's use or consumption of such utility or other
services is separately metered or sub-metered at the Premises or Tenant is
charged a separate amount therefore;
(10) costs incurred in connection with Landlord's preparation,
negotiation, dispute resolution and/or enforcement of leases, including
court costs and attorney's fees and disbursements in connection with any
summary proceeding to dispossess any tenant, or incurred in connection with
disputes with prospective tenants, employees, consultants, management
agents, leasing agents, purchasers or mortgagees;
(11) costs of any additions to or expansions of the Property or the
Building;
(12) cost of repairs, restoration or replacements occasioned by fire
or other casualty or caused by the exercise of the right of eminent domain
whether or not insurance proceeds or condemnation award proceeds are
recovered or adequate for such purposes;
(13) capital expenditures except those which are specifically
permitted above;
(14) the cost of performing, or correcting defects in, or inadequacies
of, the Base Building Work or of otherwise correcting defects (including
latent defects) in the Property;
(15) the cost to make improvements, alterations and additions to the
Property which are required in order to render the same in compliance with
laws, rules, orders regulations and/or directives existing as of the date
of this Lease;
(16) the cost of environmental monitoring, compliance, testing and
remediation performed in, on, about and around the Property;
(17) any costs in the nature of fees, fines or penalties arising out
of Landlord's breach of any obligations (contractual or at law and
including, without limitation, costs, fines, interest, penalties and costs
of litigation incurred as a result of late payment of taxes and/or utility
bills), including attorney's fees related thereto;
(18) depreciation, except with respect to capital expenditures; and
(19) any cost resulting form the negligence of Landlord, its agents or
its employees.
D-3
EXHIBIT E
Rules and Regulations of Building
The following regulations are generally applicable:
1. The public sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by
Tenant (except as necessary for deliveries) or used for any purpose other
than ingress and egress to and from the Premises.
2. No awnings, curtains, blinds, shades, screens or other projections shall be
attached to or hung in, or used in connection with, any window of the
Premises or any outside wall of the Building. Such awnings, curtains.
blinds, shades, screens or other projections must be of a quality, type,
design and color, and attached in the manner, approved by Landlord.
3. No show cases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, nor, if the Building is occupied by
more than one tenant, displayed through interior windows into the atrium of
the Building, nor placed in the halls, corridors or vestibules, provided
that show cases or articles may be displayed through interior windows into
the atrium of the Building (if any) with Landlord's prior written approval,
such approval not to be unreasonably withheld or delayed so long as such
display does not adverse affect the aesthetic integrity of the Building.
4. 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, acids or like substances
shall be deposited therein. All damages resulting from any misuse of the
fixtures shall be borne by the Tenant.
5. Tenant shall not use the Premises or any part thereof or permit the
Premises or any part thereof to be used as a public employment bureau or
for the sale of property of any kind at auction, except in connection with
Tenant's business.
6. Tenant must, upon the termination of its tenancy, return to the Landlord
all locks, cylinders and keys to offices and toilet rooms of the Premises.
7. Landlord reserves the right to exclude from the Building after business
hours and at all hours on days other than Business Days all persons
connected with or calling upon the Tenant who do not present a pass to the
Building signed by the Tenant or who are not escorted in the Building by an
employee of Tenant. Tenant shall be responsible for all persons for whom it
issues any such pass and shall be liable to the Landlord for all wrongful
acts of such persons.
8. The requirements of Tenant will be attended to only upon application at the
Building Management Office. Employees of Landlord shall not perform any
work or do anything
E-1
outside of their regular duties, unless under special instructions from the
office of the Landlord.
9. There shall not be used in any space in the Building, or in the public
halls of the Building, either by 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.
10. No vehicles or animals of any kind (other than laboratory animals) shall be
brought into or kept in or about the Premises.
11. No tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or any neighboring
building or premises or those having business with them whether by use of
any musical instrument, radio, talking machine, unmusical noise, whistling,
singing, or in any other way. No tenant shall throw anything out of the
doors, windows or skylights or down the passageways.
12. The Premises shall not be used for lodging or sleeping or for any immoral
or illegal purpose.
13. No smoking shall be permitted in the Premises or the Building. Smoking
shall only be permitted in smoking areas outside of the Building which have
been designated by the Landlord.
14. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and street address of the
Building.
15. The rules and regulations set forth in Attachment I to this Exhibit, which
is by this reference made a part hereof, are applicable to any Alterations
being undertaken by or for Tenant in the Premises pursuant to Section 5.2
of the Lease.
E-2
Attachment I to Exhibit E
Rules and Regulations for Tenant Alterations
A. General
(1) All Alterations made by Tenant in, to or about the Premises shall be
made in accordance with the requirements of this Exhibit and by
contractors or mechanics approved by Landlord, which approval shall
not be unreasonably withheld, conditioned or delayed.
(2) Tenant shall, prior to the commencement of any work, submit for
Landlord's written approval, complete plans for the Alterations, with
full details and specifications for all of the Alterations, in
compliance with Section D below.
(3) Alterations must comply with the Building Code applicable to the
Property and the requirements, rules and regulations and any other
governmental agencies having jurisdiction.
(4) No work shall be permitted to commence before Tenant obtains and
furnishes to Landlord copies of all necessary licenses and permits
from all governmental authorities having jurisdiction.
(5) All demolition, removals or other categories of work that may
inconvenience other tenants or disturb Building operations, must be
scheduled and performed before or after normal business hours, and
Tenant shall provide Landlord with at least 24 hours' notice prior to
proceeding with such work.
(6) All inquiries, submissions, approvals and all other matters shall be
processed through [e.g., Landlord's property manager].
(7) All work, if performed by a contractor or subcontractor, shall be
subject to reasonable inspection by Landlord's representative.
B. Prior to Commencement of Work
(1) Tenant shall submit to the Building manager a request to perform the
work. The request shall include the following enclosures:
(i) A list of Tenant's contractors and/or subcontractors for
Landlord's approval.
(ii) Four complete sets of plans and specifications properly stamped
by a registered architect or professional engineer.
Attachment I - Page 1
(iii) A properly executed building permit application form.
(iv) Four executed copies of the Insurance Requirements Agreement in
the form attached to this Exhibit as Attachment II and made a part hereof
from Tenant's contractor and, if requested by Landlord, from the
contractor's subcontractors.
(v) Contractor's and subcontractor's insurance certificates, including
an indemnity in accordance with the Insurance Requirements Agreement.
(2) Landlord will return the following to Tenant:
(i) Two sets of plans approved or a disapproved with specific
comments as to the reasons therefore (such approval or comments
shall not constitute a waiver of approval of governmental
authorities).
(ii) Two fully executed copies of the Insurance Requirements
Agreement.
(3) Landlord's approval of the plans, drawings, specifications or other
submissions in respect of any Alterations shall create no liability or
responsibility on the part of Landlord for their completeness, design
sufficiency or compliance with requirements of any applicable laws,
rules or regulations of any governmental or quasi-governmental agency,
board or authority.
(4) Tenant shall obtain a building permit from the Building Department and
necessary permits from other governmental agencies. Tenant shall be
responsible for keeping current all permits. Tenant shall submit
copies of all approved plans and permits to Landlord and shall post
the original permit on the Premises prior to the commencement of any
work.
C. Requirements and Procedures
(1) All structural and floor loading requirements shall be subject to the
prior approval of Landlord's structural engineer.
(2) All mechanical (HVAC, plumbing and sprinkler) and electrical
requirements shall be subject to the approval of Landlord's mechanical
and electrical engineers, which approval shall not be unreasonably
withheld, conditioned or delayed, and all mechanical and electrical
work shall be performed by contractors who are engaged by Tenant. When
necessary, Landlord will require engineering and shop drawings, which
drawings must be approved by Landlord, which approval shall not be
unreasonably withheld, conditioned, or delayed before work is started.
Drawings are to be prepared by Tenant and all approvals shall be
obtained by Tenant.
Attachment I - Page 2
(3) Elevator service for construction work shall be charged to Tenant at
standard Building rates. Prior arrangements for elevator use shall be
made with Building manager by Tenant. No material or equipment shall
be carried under or on top of elevators. If an operating engineer is
required by any union regulations, such engineer shall be paid for by
Tenant.
(4) If shutdown of risers and mains for electrical, HVAC, sprinkler and
plumbing work is required, such work shall be supervised by Landlord's
representative. No work will be performed in Building mechanical
equipment rooms without Landlord's approval, which approval shall not
be unreasonably withheld, conditioned or delayed, and under Landlord's
supervision.
(5) Tenant's contractor shall:
(i) have a superintendent or foreman on the Premises during the
progress of the work;
(ii) police the job at all times, continually keeping the Premises
orderly;
(iii) maintain cleanliness and protection of all areas, including
elevators and lobbies.
(iv) protect the front and top of all peripheral HVAC units and
thoroughly clean them at the completion of work;
(v) block off supply and return grills, diffusers and ducts to keep
dust from entering into the Building air conditioning system; and
(vi) avoid the unreasonable disturbance of other tenants.
(6) If Tenant's contractor is negligent in any of its responsibilities,
Tenant shall be charged for corrective work.
(7) All equipment and installations must be equal to or greater than the
standards generally in effect with respect to the remainder of the
Building. Any deviation from such standards will be permitted only if
indicated or specified on the plans and specifications and approved by
Landlord, which approval shall not be unreasonably withheld,
conditioned, or delayed.
(8) A properly executed air balancing report signed by a professional
engineer shall be submitted to Landlord upon the completion of all
HVAC work.
Attachment I - Page 3
(9) Upon completion of the Alterations, Tenant shall diligently pursue,
and upon receipt shall submit to Landlord, a permanent certificate of
occupancy and final approval by the other governmental agencies having
jurisdiction.
(10) Tenant shall submit to Landlord a final "as-built" set of drawings
showing all items of the Alterations in full detail.
(11) Additional and differing provisions in the Lease, if any, will be
applicable and will take precedence.
D. Standards for Plans and Specifications.
Whenever Tenant shall be required by the terms of the Lease (including this
Exhibit) to submit plans to Landlord in connection with any Alterations, such
plans shall include at least the following:
(1) Floor plan indicating location of partitions and doors (details
required of partition and door types).
(2) Location of standard electrical convenience outlets and telephone
outlets.
(3) Location and details of special electrical outlets; e.g.,
photocopiers, etc.
(4) Reflected ceiling plan showing layout of standard ceiling and lighting
fixtures. Partitions to be shown lightly with switches located
indicating fixtures to be controlled.
(5) Locations and details of special ceiling conditions, lighting
fixtures, speakers, etc.
(6) Location and specifications of floor covering, paint or paneling with
paint colors to be approved by Landlord in its reasonable discretion.
(7) Finish schedule plan indicating wall covering, paint, or paneling with
paint colors to be approved by Landlord in its reasonable discretion.
(8) Details and specifications of special millwork, glass partitions,
rolling doors and grilles, blackboards, shelves, etc.
(9) Hardware schedule indicating door number keyed to plan, size, hardware
required including butts, latchsets or locksets, closures, stops, and
any special items such as thresholds, soundproofing, etc. Keying
schedule is required.
(10) Verified dimensions of all built-in equipment (file cabinets, lockers,
plan files, etc.)
Attachment I - Page 4
(11) Location and weights of storage files.
(12) Location of any special soundproofing requirements.
(13) Location and details of special floor areas exceeding 50 pounds of
live load per square foot.
(14) All structural, mechanical, plumbing and electrical drawings, to be
prepared by the Tenant's engineers, necessary to complete the Premises
in accordance with Tenant's plans.
(15) All drawings to be uniform size (30" x 46") and shall incorporate
standard project electrical and plumbing symbols and be at a scale of
1/8" = 1' or larger.
(16) All drawings shall be stamped by an architect (or, where applicable,
an engineer) licensed in the jurisdiction in which the Property is
located and without limiting the foregoing, shall be sufficient in all
respects for submission to applicable authorization in connection with
a building permit application.
Attachment I - Page 5
Attachment II to Exhibit E
Contractor's Insurance Requirements
Building:
Landlord:
Tenant:
Premises:
The undersigned contractor or subcontractor ("Contractor") has been hired by the
tenant named above (hereinafter called "Tenant") of the Building named above (or
by Tenant's contractor) to perform certain work ("Work") for Tenant in the
Premises identified above. Contractor and Tenant have requested the landlord
named above ("Landlord") to grant Contractor access to the Building and its
facilities in connection with the performance of the Work, and Landlord agrees
to grant such access to Contractor upon and subject to the following terms and
conditions:
1. Contractor agrees to indemnify and save harmless Landlord and its
respective officers, employees and agents and their affiliates, subsidiaries and
partners, and each of them, from and with respect to any claims, demands, suits,
liabilities, losses and expenses, including reasonable attorneys' fees, arising
out of or in connection with the Work (and/or imposed by law upon any or all of
them) because of personal injuries, bodily injury (including death at any time
resulting therefrom) and loss of or damage to property, whether such injuries to
person or property are claimed to be due to the negligence of the Contractor or
of the Tenant.
2. Contractor shall provide and maintain at its own expense, until
completion of the Work, the following insurance:
(a) Workmen's Compensation and Employers, Liability Insurance covering
each and every workman employed in, about or upon the Work, as provided for
in each and every statute applicable to Workmen's Compensation and
Employers' Liability Insurance.
(b) Comprehensive General Liability Insurance including coverages for
Protective and Contractual Liability (to specifically include coverage for
the indemnification clause of this Agreement) for not less than the
following limits:
Personal Injury:
$3,000,000 per occurrence
$5,000,000 in the aggregate
Property Damage:
$3,000,000 per occurrence, $3,000,000 aggregate
Attachment II - Page 1
(c) Comprehensive Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the
Work) for not less than the following limits:
Bodily Injury:
$1,000,000 per occurrence
$1,000,000 in the aggregate
Property Damage:
$1,000,000 per occurrence
Contractor shall furnish a certificate from its insurance carrier or
carriers to the Building office before commencing the Work, showing that it has
complied with the above requirements regarding insurance and providing that the
insurer will give Landlord ten (10) days' prior written notice of the
cancellation of any of the foregoing policies.
3. Contractor shall require all of its subcontractors engaged in the Work
to provide the following insurance:
(a) Comprehensive General Liability Insurance including Protective and
Contractual Liability coverages with limits of liability at least equal to
the limits stated in paragraph 2(b).
(b) Comprehensive Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the
Work) with limits of liability at least equal to the limits stated in
paragraph 2(c).
Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
Agreed to and executed this day of ______________, 19__.
Contractor:
By:_____________________________________________________________________________
By:_____________________________________________________________________________
By:_____________________________________________________________________________
Attachment II - Page 2
EXHIBIT F
Parking Areas
[Image of Parking Area]
F-1
EXHIBIT G
Base Building Work
Premises Base Building Work:
1. Landlord will construct a Sub Slab Depressurization System ("SSDS") in
substantial accordance with the design and specifications attached hereto
as Attachment I to Exhibit G. Final design shall be subject to
modifications by Landlord's Licensed Site Professional ("LSP") which shall
use generally accepted industry standards in the design and modification of
the SSDS.
2. Landlord will demolish the existing non-structural improvements in the
Premises, including piping (excluding the main sprinkler hook up), HVAC
ductwork and equipment and electrical conduit.
3. Landlord will demolish the north building (west 7) and the top two floors
of the premises.
4. Landlord will abate asbestos within the Premises and deliver the Premises
vacant.
5. Landlord will provide base building improvements as follows:
o New facade and glazing for the premises substantially in accordance
with the attached drawings provided by Maugel Architects (SK
#081501d), dated August 15, 2001
o New roof membrane, Carlisle EPDM 0.060 on1/2" fiberboard on rigid R20
insulation (15 year warranty)
o Electrical switchgear to tenant space capable of providing 1000
amp/480 volt service.
o All demising walls within premises in accordance with the attached
plan by Maugel Architects ( SK # 081501b) dated August 15, 2001
o Life safety systems which are fully addressable, wet sprinkler system
Common Facilities Base Building Work:
o New passenger elevator adjacent to new main entrance at the north side
of the building
o New bathrooms in accordance with code
o Lobby and common areas in accordance with the attached drawing by
Maugel Architects ( SK # 081501c) dated August 15, 2001.
o Site landscaping, repaving and restriping as needed
G-1
Attachment I to Exhibit G
(see attached)
[Attachment to Attachment I to Exhibit G is Image of SSDS design]
G-2
EXHIBIT H
Form Letter of Credit
(NAME OF BANK)
IRREVOCABLE STANDBY LETTER OF CREDIT
Date of Issue:_______________ __, 2001 No.______
APPLICANT: BENEFICIARY:
[Tenant] [Landlord]
- ------------------------ -------------------------
- ------------------------ -------------------------
- ------------------------ -------------------------
AMOUNT: $_______
At the request and for the account of _______________ (the "Account Party"), we
hereby establish in your favor our irrevocable Letter of Credit No. ________ in
the amount of ______________________ Dollars ($--------).
This Letter of Credit is issued with respect to that certain lease agreement, by
and between you, as Landlord, and the Account Party, as Tenant. Said lease
agreement, and any amendments or modifications thereof, is hereinafter referred
to as the "Lease." Our obligations under this Letter of Credit are solely as set
forth herein and are completely independent of the obligations of the Account
Party under the Lease. We do not undertake any obligation under the Lease, nor
do we undertake any responsibility to ascertain any facts, or to take any other
action, with respect to the Lease, and we acknowledge that our obligations under
this Letter of Credit shall not be affected by any circumstance, claim or
defense of any party as to the enforceability of the Lease or any dispute as to
the accuracy of the Statement (as defined below). The references to the Lease in
this Letter of Credit are solely to describe the required contents of the
Statement.
Funds under this Letter of Credit are available to you against presentation of
the following documents at our office at ______________________ prior to close
of business on the expiration date set forth below.
1. The original of this Letter of Credit.
2. Your sight draft on us in an amount not exceeding the amount of this Letter
of Credit (less sums previously paid by us hereunder) executed by the person
executing the Statement and bearing the number of this Letter of Credit; and
H-1
3. A statement (the "Statement") executed by a natural person, stating that such
person is your duly authorized representative, and that you are entitled to draw
upon this Letter of Credit.
The expiration date of this Letter of Credit is ____________________, provided,
however, that the expiration date of this Letter of Credit shall be
automatically extended, without notice of amendment, for successive one (1) year
periods, unless we give you written notice of our election not to extend the
expiration date ("Notice of Non-Renewal") not later than sixty (60) days prior
to the date this Letter of Credit is scheduled to expire. A Notice of
Non-Renewal shall be effective when actually delivered by certified mail, return
receipt requested, or courier service to your address set forth above or such
other address and/or person as you shall specify to us for such purpose by
written notice received by us prior to the time the Notice of Non-Renewal is
sent.
This Letter of Credit is transferable in its entirety through us and successive
transfers shall be permitted. There will be no charge for the transfer of this
Letter of Credit. We will honor complying drafts presented hereunder by a
transferee (and cease to honor drafts presented hereunder by you) upon our
receipt of the fully executed transfer form attached hereto as Exhibit 1.
This Letter of Credit may be drawn upon in one or more drafts not exceeding in
the aggregate, the amount available hereunder.
We hereby issue this Letter of Credit in your favor, and we hereby undertake to
honor all drafts drawn under and in compliance with the terms of this Letter of
Credit.
This Letter of Credit shall be governed by and construed in accordance with the
Uniform Customs and Practices for Documentary Credits (1993 Revision)
International Chamber of Commerce Publication 500.
- -------------------------
Authorized Signature
H-2
EXHIBIT 1
[TRANSFER FORM - to be provided by Bank]
Exhibit 1 - Page 1
EXHIBIT I
Tenant's Approved Hazardous Materials
(see attached)
I-1
Exhibit I- Hazardous Materials
This list is a representative sample of materials used at Repligen. The
manufacturing chemicals are used in larger quantities (over 5 liters). The
research chemicals are used in smaller quantities, milligrams or grams.
Currently, Repligen performs very little radioactive work, but continue to
maintain our license.
Manufacturing Chemicals
- -------------------------------------------
Acetic Acid
Cupric Sulfate
EDTA
Ethanol 200 Proof
Hydrochloric Acid
Phosphoric Acid
Potassium Chloride
Sodium borohydride
Sodium Carbonate
Sodium Chloride
Sodium Hydroxide Pellets
Sodium Hydroxide Solution 50% W/W
Sodium m-Periodate
Thimerosal
Tris - HCL
Tris Base
Triton X-100
Research Chemicals
- -------------------------------------------
Acetone
Acetonitrile
Coomassie Blue
Diaminobenzidine
DMSO
Formic Acid
Guanidine
Hexane
Hydrochloric Acid
Isopropanol
Methanol
Methylene Chloride
Methylethyl ketone
Nitric Acid
Phosphoric Acid
Polyethylene Glycol
Sodium Hydroxide
Sulfuric Acid
Tetrahydrofuran
Tolulene
Urea
Radioactive materials
- -------------------------------------------
3H
14C
32P
35s
51Cr
125I
EXHIBIT J
Notice of Lease
Notice is hereby given pursuant to Massachusetts General Laws, Chapter 183,
Section 4 of the following lease (the "Lease"):
1. Landlord: West Seyon LLC, a Delaware limited liability
company.
2. Tenant: Repligen Corporation, a Delaware Corporation.
3. Date of Lease: __________________, 2001.
4. Premises: 24,468 rentable square feet of space, as more
particularly described in the Lease, in the
Building known and numbered as 35 Seyon Street,
Waltham, Massachusetts, and more particularly
described on Exhibit A attached hereto.
5. Commencement
Date: The later to occur of (i) December 1, 2001, or
(ii) the Premises Base Building Substantial
Completion Date (as defined in the Lease).
6. Initial Lease Term: Ten (10) years.
7. Extension Rights: Two (2) options to extend the term for five (5)
years each, on the terms and conditions
provided for by the Lease.
The foregoing is a summary of certain terms of the Lease for purposes of
giving notice thereof, and shall not be deemed to modify or amend the terms of
the Lease.
J-1
This Notice is executed under seal this 10 day of October, 2001.
LANDLORD: WEST SEYON LLC
By:__________________________
Name:
Title:
TENANT: REPLIGEN CORPORATION
By:__________________________
Name:
Title:
COMMONWEALTH OF MASSACHUSETTS
_________________, ss. __________ __, 2001
Then personally appeared the above-named __________________, and
acknowledged the foregoing instrument to be his free act and deed as
__________________ of _________________________________, before me,
________________________________________
Notary Public
My Commission Expires:__________________
J-2
COMMONWEALTH OF MASSACHUSETTS
_________________, ss. __________ __, 2001
Then personally appeared the above-named __________________, and
acknowledged the foregoing instrument to be his free act and deed as
__________________ of _________________________________, before me,
________________________________________
Notary Public
My Commission Expires:__________________
J-3
EXHIBIT K
ALTERATIONS TO BE RETAINED BY TENANT
(see attached)
J-4
Exhibit K Alterations to be kept by the Tenant
Improvements that Repligen would be able to remove at the end of the lease are
the following:
Autoclave sterilizer
Backup Generator
Cages
Cubicles
Dishwasher
Fume hoods
Glass washer/drier
Phone system
Reverse osmosis water system
Security system
Steam generator
Walk-in freezers/cold rooms
Water purification system
EXHIBIT L
ENVIRONMENTAL REPORTS
Inspection and Monitoring Reports, dated July 2000 through December 2000,
prepared by GZA GeoEnvironmental, Inc.
J-5
EXHIBIT M
TENANT'S EXTERIOR SIGNAGE
[Image of Exterior Signage]
J-6
EXHIBIT N
TENANT'S LAYOUT PLAN
(see attached)
Landlord hereby consents to the general layout of Tenant's walls in the
Premises, as set forth in the attached Exhibit N, however, Landlord reserves
further approval rights in the event the attached layout affects in any manner,
or may affect in any manner, any Building systems, including, without
limitation, mechanical, electrical, and plumbing systems. In addition,
Landlord's approval hereto shall not impose upon Landlord any responsibility or
liability whatsoever to Tenant, nor shall it be deemed to imply that the Layout
Plan conforms with applicable laws and building codes, for which Tenant, at its
sole cost and expense, shall be responsible. Landlord and Tenant shall cooperate
in integrating all doors in the Premises that open to Common Facilities of the
Building with the Common Facilities design. Tenant shall use reasonable efforts
to minimize the number of doors opening into the Common Facilities.
[Attachment to Exhibit N is Image of Tenant's Layout Plan]
J-7