AMENDED AND RESTATED LEASE
between
MGI ONE PARK WEST, INC.,
as Landlord
and
AVID TECHNOLOGY, INC.,
as Tenant
Dated: June 7, 1996
TABLE OF CONTENTS
PAGE
Article I - Reference Data..........................................1
1.2 Exhibits.................................................2
1.3 Amendment and Restatement of Lease.......................3
Article II - Premises, Term, Lease Year, Extension Options
and Right of First Offer.................................3
2.1 The Premises.............................................3
2.2 Term.....................................................3
2.3 Lease Year...............................................3
2.4 Extension Options........................................3
Article III - Rent and Security Deposit.............................4
3.1 Base Rent................................................4
3.2 Additional Rent..........................................5
3.2.1 Real Estate Taxes.................................5
3.2.2 Insurance.........................................6
3.2.3 Utilities.........................................8
3.3 Net Lease................................................9
3.4 Security Deposit.........................................9
Article IV - Condition of Premises; Covenants......................10
4.1 Condition of Premises...................................10
4.2 Affirmative Covenants...................................11
4.2.1 Perform Obligations..............................11
4.2.2 Use..............................................11
4.2.3 Repair and Maintenance...........................11
4.2.4 Compliance With Legal Requirements...............12
4.2.5 Payment for Tenant's Work........................13
4.2.6 Indemnity........................................13
4.2.7 Landlord's Right to Enter........................13
4.2.8 Personal Property at Tenant's Risk...............13
4.2.9 Yield Up.........................................14
4.2.10 Hazardous Materials..............................14
4.2.11 Safety Appliances; Licenses.....................17
4.2.12 Personal Property Taxes..........................17
4.3 Negative Covenants......................................17
4.3.1 Overloading, Nuisance, etc.......................17
4.3.2 Installation, Alterations or Additions...........17
Article V - Assignment and Subletting..............................19
5.1 General Prohibition of Assignment and Subletting........19
5.2 Terms Governing Assignments and Subleases...............20
5.3 No Waiver or Release....................................20
Article VI - Signs and Furnishings.................................21
6.1 Signage.................................................21
6.2 Floor Load; Deliveries..................................21
Article VII - Entry by Landlord....................................21
Article VIII - Interruption of Services............................21
Article IX -Liability of Landlord..................................22
9.1 Limitation of Liability.................................22
9.2 No Right of Set-Off.....................................22
9.3 Nonrecourse.............................................22
Article X - Damage or Destruction..................................22
10.1 Restoration or Termination..............................22
10.2 Tenant's Personal Property..............................23
10.3 Right to Terminate Within Last Two Years of Lease Term..23
10.4 Restoration as a Result of Minor Loss...................24
10.5 Restoration in the Event of Major Damage................24
Article XI - Condemnation..........................................25
11.1 Taking..................................................25
11.2 Awards..................................................25
Article XII - Default by Tenant; Remedies..........................26
12.1 Default.................................................26
12.2 Landlord's Right to Terminate...........................27
12.3 Rent Reserved...........................................27
12.4 Bankruptcy Provisions...................................28
12.5 Cumulative Remedies.....................................30
12.6 No Waiver...............................................30
12.7 Landlord's Right To Self-Help...........................31
12.8 Late Charge.............................................31
Article XIII - Holding Over........................................31
Article XIV - Covenants of Landlord................................32
14.1 Quiet Enjoyment.........................................32
Article XV - Rights of Mortgagee...................................32
15.1 Definition of Mortgage..................................32
15.2 Lease Subordinate-Superior..............................32
Article XVI - General Provisions...................................33
16.1 No Representations; No Mortgage.........................33
16.2 No Partnership or Joint Venture.........................33
16.3 Brokerage...............................................34
16.4 Estoppel Certificate....................................34
16.5 Cost of Enforcement.....................................34
16.6 Notice..................................................34
16.7 Partial Invalidity......................................35
16.8 Gender..................................................35
16.9 Bind and Inure..........................................35
16.10 Entire Agreement........................................35
16.11 Applicable Law..........................................35
16.12 Headings................................................35
16.13 Not An Offer............................................36
16.14 Time Is of the Essence..................................36
16.15 Multiple Counterparts...................................36
16.16 Notice of Lease.........................................36
16.17 Waiver of Jury Trial....................................36
16.18 Future Development......................................36
16.19 Exhibits................................................37
EXHIBIT A - Legal Description of Land..............................39
EXHIBIT B - Brokers' Determination of Prevailing Market Rent.......40
EXHIBIT C - Tenant's Right of First Offer..........................42
EXHIBIT D - Hazardous Materials....................................43
EXHIBIT E - Location of New Building...............................44
One Park West, Tewksbury, MA
AMENDED AND RESTATED LEASE
dated June 7, 1996
ARTICLE I -- REFERENCE DATA
1.1 SUBJECTS REFERRED TO. Each reference in this Lease to any of the
following subjects shall be construed to incorporate the data stated for that
subject in this Article:
1.1.1 LANDLORD: MGI One Park West, Inc., a Massachusetts
corporation
1.1.2 LANDLORD'S
ADDRESS: c/o MGI Properties
30 Rowes Wharf
Boston, Massachusetts 02110
1.1.3 TENANT: Avid Technology, Inc., a Delaware
corporation
1.1.4 TENANT'S ADDRESS: One Park West
Tewksbury, Massachusetts 01876
1.1.5 LEASE
COMMENCEMENT DATE: The date this Lease is executed.
1.1.6 BASE RENT COMMENCEMENT
DATE: The Lease Commencement Date.
1.1.7 LAND: The land more particularly described in
EXHIBIT A attached hereto upon which the
Building is located.
1.1.8 BUILDING: The building and other improvements,
commonly known as One Park West,
Tewksbury, Massachusetts, which building
contains approximately 140,000 rentable
square feet.
1.1.9 PREMISES: The Land and the Building,
together with all improvements from time to
time made thereon during the term of this
Lease.
1.1.10 INITIAL TERM: Fourteen (14) years and thirty (30) days,
plus any partial calendar month
immediately following the Lease
Commencement Date.
1.1.11 ANNUAL BASE RENT: The following schedule of rents is to be
on a triple net basis:
LEASE YEARS ANNUAL BASE RENT
Lease Commencement Date - June 30, 1996 $945,000.00
July 1, 1996 - June 30, 1997 $968,800.00
July 1, 1997 - June 30, 1998 $1,069,600.00
July 1, 1998 - June 30, 2000 $1,160,600.00
July 1, 2000 - June 30, 2002 $1,236,200.00
July 1, 2002 - June 30, 2005 $1,379,000.00
July 1, 2005 - June 30, 2010 $1,460,200.00
1.1.12 PERMITTED USES: General office, research and development,
light manufacturing and ancillary uses,
such as an employee cafeteria and
employee health facility.
1.1.13 INITIAL COMMERCIAL
GENERAL LIABILITY
INSURANCE BY
TENANT: Personal Injury, Bodily Injury and
Property Damage Limits - $5,000,000 each
occurrence.
1.1.14 SECURITY DEPOSIT: $167,100.
1.1.15 CPI: The Consumer Price Index [All Urban
Consumers] (base year 1982-1984 = 100)
for the Boston SMSA published by the
Bureau of Labor Statistics, U.S.
Department of Labor. If the CPI is
changed so that the base year differs
from that in effect as of the date of
this Lease, the CPI shall be converted in
accordance with the conversion factor
published by the Bureau of Labor
Statistics. If the CPI is discontinued
or revised during the Lease Term, such
other government index or computation
with which it is replaced shall be used
in order to obtain substantially the same
result as would be obtained if the CPI
had not been discontinued or revised.
1.2 EXHIBITS. There are incorporated as a part of this Lease:
EXHIBIT A - Description of the Land
EXHIBIT B - Brokers Determination of Prevailing Market Rent
EXHIBIT C - Tenant's Right of First Offer
EXHIBIT D - Hazardous Materials
EXHIBIT E - Location of New Building Area
1.3 AMENDMENT AND RESTATEMENT OF LEASE. This Lease amends and restates a
certain Lease dated April 20, 1992 by and between Metropolitan Life Insurance
Company and Tenant, as amended by (i) a First Amendment to Lease dated September
21, 1992, (ii) a Second Amendment to Lease dated March 17, 1994, and (iii) a
Third Lease Amendment dated as of March 6, 1996, in its entirety.
ARTICLE II - PREMISES, TERM, LEASE YEAR, EXTENSION OPTIONS AND RIGHT OF FIRST
OFFER
2.1 THE PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord, for the Term, as defined in Section 1.1, as it may be extended or
terminated hereunder (the "Lease Term"), and upon the terms, conditions,
covenants and agreements herein provided, the Premises. The Premises are demised
subject to and together with the benefit of all easements, rights of way,
privileges and conditions applicable thereto. No easement for light, air or view
is included or appurtenant to the Premises, and any diminution or shutting off
of light, air or view by any structure which may hereafter be erected shall in
no way offset this Lease or impose any liability on Landlord; provided, however,
that nothing in this sentence shall be construed as reserving to Landlord any
right to further develop the Premises during the Lease Term.
2.2 TERM. Tenant shall have and hold the Premises for a period commencing on
the Lease Commencement Date, continuing for the balance of the month in which
the Lease Commencement Date occurs, and continuing until June 30, 2010 (the
"Term"), unless the Term is terminated earlier in accordance with the provisions
of this Lease. Promptly after the Lease Commencement Date is ascertained
Landlord and Tenant shall execute, in recordable form, a written declaration
setting forth the Lease Commencement Date and the date upon which the Lease Term
will expire.
2.3 LEASE YEAR. "Lease Year" shall mean, in the case of the first Lease Year,
the period between the Lease Commencement Date and June 30, 1996, plus the
twelve (12) full calendar months commencing on July 1, 1996. Thereafter, "Lease
Year" shall mean such successive twelve (12) calendar month period following the
expiration of the first Lease Year during the Lease Term. If this Lease ends on
a day other than the last day of a Lease Year (as defined above), the last Lease
Year shall end on the termination date.
2.4 EXTENSION OPTIONS. Provided that at the time of exercise of each of the
herein described options to extend (each, an "Extension Option") (i) Tenant is
not in default after applicable notice and grace period of any of its
obligations hereunder, and (ii) this Lease is still in force and effect, Tenant
shall have the right to extend the Initial Term hereof upon all of the same
terms, conditions, covenants and agreements herein contained (except for the
Annual Base Rent which shall be adjusted during the applicable extension periods
as hereinafter set forth) for two (2) successive periods of five (5) years each
as hereinafter set forth. Each option period is sometimes herein referred to as
an "Extended Term."
If Tenant desires to exercise the Extension Option, then Tenant shall give
notice to Landlord, not earlier than fifteen (15) months nor later than twelve
(12) months prior to the expiration of the then applicable Lease Term of
Tenant's request for Landlord's "Proposed Annual Rent" for the applicable
Extended Term. If at the expiration of thirty (30) days after the date when
Landlord receives Tenant's written request as aforesaid (the "Negotiation
Period"), Landlord and Tenant have not reached agreement on a determination of
an annual rental for the applicable Extended Term and executed a written
instrument setting forth the Annual Base Rent for the applicable Extended Term
pursuant to such agreement, then either Landlord or Tenant shall have the right,
for a period of ten (10) days following the expiration of the Negotiation
Period, to make a request for a determination (the "Brokers' Determination") of
the Prevailing Market Rent (as defined in Exhibit B) for the applicable Extended
Term, which Brokers' Determination shall be made in the manner set forth in
Exhibit B. Notwithstanding the provisions of this Section 2.4 and Exhibit B, the
Annual Base Rent for the Extended Terms shall not be less than the sum of the
Annual Base Rent for the fifteenth Lease Year plus $140,000.
Upon the giving of notice by Tenant to Landlord exercising Tenant's then
applicable Extension Option, the Lease Term in accordance with the provisions of
this Section shall be extended, for the applicable Extended Term, without the
necessity of the execution of any additional documents, except that Landlord and
Tenant agree to enter into an instrument in writing setting forth the Annual
Base Rent for the applicable Extended Term as determined in the relevant manner
set forth in this Section; and in such event all references herein to the Lease
Term or the term of this Lease shall be construed as referring to the Lease
Term, as so extended, unless the context clearly otherwise requires, and except
that there shall be no option to extend the Lease Term beyond the second
Extended Term. Notwithstanding anything contained herein to the contrary, in no
event shall Tenant have the right to extend the Initial Term more than one
Extended Term at a time and, further, in no event shall the Lease Term hereof be
extended for more than ten (10) years after the expiration of the Initial Term
hereof. Time is of the essence with respect to the provisions of this Section.
ARTICLE III - RENT AND SECURITY DEPOSIT
3.1 BASE RENT. Tenant covenants and agrees to pay to Landlord at the
Landlord's Address, or such other place as Landlord may by notice in writing to
Tenant from time to time direct during the Lease Term, Base Rent for the
respective periods as set forth in Subsection 1.1 hereof in equal monthly
installments, commencing on the Base Rent Commencement Date. All rental payments
shall be made in advance on the first day of each calendar month included in the
Lease Term and for any portion of a calendar month at the beginning or end of
the Lease Term, at the applicable rate payable in advance for such portion.
In the event any installment of Base Rent, Additional Rent or any other sum
which becomes owing by Tenant to Landlord under the provisions hereof
(collectively, "Rent") is not received within five (5) days after written notice
from Landlord that the same is overdue (without in any way implying Landlord
consents to such late payment), Tenant, to the extent permitted by law, agrees
to pay, in addition to said installment of Rent or such other sum owed, interest
thereon at a rate (the "Rent Default Rate") equal to the lesser of (a) the Prime
Rate on the date such payment is due plus four percent (4%) per annum or (b) the
highest rate permitted by law, which interest shall begin to accrue as of the
date such Rent or other sums owed is due pursuant to the terms of this Lease;
provided, however, that if in any given period of twenty four (24) successive
months, Tenant's monthly payment of Base Rent shall have been late on two (2) or
more occasions, then if any subsequent installment of Base Rent shall not be
paid on the date it is due, Tenant shall pay, in addition to said installment of
Base Rent or such other sums owed, interest thereon at the Rent Default Rate
immediately upon such payment being overdue (and Tenant shall not have the
benefit of the aforementioned five (5) day notice and grace period in such
instance). For purposes of this Lease, the Prime Rate shall mean the announced
and published base lending rate of Bank of Boston, as such rate may change from
time to time.
3.2 ADDITIONAL RENT. In order that the Base Rent shall be absolutely net to
Landlord, Tenant covenants and agrees to pay, as Additional Rent, all Real
Estate Taxes (as defined in Subsection 3.2.1), insurance costs and utilities
charges with respect to the Premises throughout the Lease Term, commencing on
the Lease Commencement Date, as provided in this Section 3.2 as follows:
3.2.1 REAL ESTATE TAXES. Tenant shall pay directly to the authority
charged with collection thereof, all "Real Estate Taxes." For purposes of
this Lease, Real Estate Taxes shall mean (a) 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 Lease Term, imposed or levied upon or assessed (1) against the
Premises or any portion thereof or (2) against any Annual Base 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 Premises, or
which arise on account of or in respect of the ownership, development,
leasing, operation or use of the Premises or any portion thereof; (b) all
gross receipts taxes or similar taxes imposed or levied upon, assessed
against or measured by any 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 Premises or any portion thereof; (c) 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
Premises or any portion thereof; and (iv) reasonable expenses of any
proceeding for abatement of any of the foregoing items included in Real
Estate Taxes.
The amount of special taxes or special assessments included in Real Estate
Taxes shall be limited to the amount of the installment (plus any interest)
of such special tax or special assessment required to be paid during the year
in respect of which such Real Estate Taxes are being determined. There shall
be excluded from such Real Estate Taxes all income, estate, succession,
inheritance and transfer taxes of Landlord; provided, however, that if at any
time during the Lease 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 Premises or any portion
thereof, such tax or charge shall be included in the term Real Estate Taxes
for the purposes of this Article. All Real Estate Taxes for any period
commencing before or ending after the Lease Term shall be prorated, and
Tenant shall be obligated to pay only the amount attributable to the portion
of the period falling within the Lease Term. Landlord and Tenant shall each
cooperate with the other on a reasonable basis to timely pay all Real Estate
Taxes for any such period.
If Tenant shall deem itself aggrieved by any such tax or charge and shall
elect to contest the payment thereof, Tenant may make such payment under
protest or if postponement of such payment does not jeopardize Landlord's
title to the Premises, Tenant may postpone the same, provided that it shall
secure such payment and the interest and penalties thereon by causing to be
delivered to Landlord cash or other adequate security in form and amount
reasonably satisfactory to Landlord. If Tenant files an abatement
application, Tenant shall (i) promptly provide a copy thereof to Landlord,
(ii) diligently pursue such application, (iii) keep Landlord informed of the
status thereof in writing, (iv) with respect to claims relating to a tax year
which falls entirely or partially within the last three Lease Years, not
settle such claim without the prior written approval of Landlord (which shall
not be unreasonably withheld or delayed), and (v) not dismiss such claim
(other than in connection with a settlement which must first be approved by
Landlord where required under the preceding clause) without first giving
Landlord at least twenty (20) days' prior written notice and opportunity to
assume the prosecution of such claim.
Landlord shall have the right to file an application for abatement of
taxes only if Tenant has not filed such an application by the date that is
five (5) business days prior to the last day in which such an abatement
application may be filed. Both Landlord and Tenant shall reasonably cooperate
with the moving party in prosecuting any abatement.
3.2.2 INSURANCE. Tenant shall, as Additional Rent, take out and maintain
throughout the Lease Term the following insurance protecting Landlord, Tenant
and any holder of a Mortgage on the Premises (a "Mortgagee"):
3.2.2.1 Fire and extended "all risk" property coverage insurance in an
amount at least equal to the full replacement cost of the Building on the
Premises and sufficient to prevent the application of any co-insurance
contributions on loss. The coverage shall include a "replacement cost"
endorsement, with a waiver of depreciation, and an "increased costs of
construction" endorsement. If necessary, the replacement cost shall, from
time to time be determined by agreement or by appraisal by an accredited
insurance appraiser which may be required by either party whenever three
(3) years have elapsed since the last such agreement or appraisal, or
since Alterations (as hereinafter defined) or additions increasing the
replacement cost have been made, the cost thereof to be paid by the party
requesting such appraisal. Such insurance shall include flood and
earthquake coverage in an amount approved by Landlord in its reasonable
discretion from time to time. Such insurance shall be subject only to such
deductibles as are reasonably approved by Landlord from time to time. Such
insurance shall also include rent continuation coverage for a period of
not less than one (1) year in an amount of not less than the Base Rent and
Additional Rent payable hereunder for the period of one (1) year next
succeeding the date of damage or casualty. As of the Lease Commencement
Date, Landlord approves flood and earthquake insurance in an amount of
$1,500,000 with a $25,000 deductible.
3.2.2.2 Comprehensive commercial general liability insurance insuring
Landlord, Tenant and any Mortgagee against all claims and demands for any
injury to person or property which may be claimed to have occurred on the
Premises or on the sidewalk or ways adjoining the Premises including,
without limitation easements and other appurtenant rights or obligations
that benefit or burden the Premises, in amounts which shall be equal to
the limits set forth in Section 1.1. Such limits may be carried under a
combination of primary and excess insurance policies (subject to
Landlord's reasonable approval).
3.2.2.3 Comprehensive automobile liability insurance including personal
injury and property damage in the amount of a combined single limit of
$1,000,000 per occurrence. Coverage must include owned, leased, hired and
non-owned vehicles.
3.2.2.4 Workers compensation and industrial disease insurance with
statutory limits.
3.2.2.5 Employers liability insurance with limits of not less than
$500,000.
3.2.2.6 Any other insurance coverages commercially available from time
to time and reasonably required by Landlord or any Mortgagee.
Insurance policies required under Subsection 3.2.2.1 shall be issued in
the names of Landlord, Tenant, and any Mortgagee, as their interests may
appear, and shall provide that any proceeds shall be made payable to the
Insurance Trustee provided for in Article X. Insurance policies required
under Subsections 3.2.2.2 and 3.2.2.3 shall name Landlord and any Mortgagee
as additional insureds. Policies for insurance required under the provisions
of Subsections 3.2.2.1 through 3.2.2.6 shall be written on an occurrence
basis, shall be obtained from responsible companies rated "A" or better by
Best's Insurance Reports and having a "Best's Financial Size category of "IX"
or better (or at Tenant's request, or if Best's Insurance Reports ceases to
publish such insurance ratings, such company or companies as Landlord may
reasonably approve in writing, and any such approval may be conditioned on
any approved company meeting or continuing to meet appropriate qualifying
standards) and qualified to do business in the Commonwealth of Massachusetts
and in good standing therein and, in the case of insurance carried pursuant
to Subsection 3.2.2.1, shall be payable first to Landlord or any Mortgagee.
Tenant agrees to furnish Landlord, upon request, with a certified copy of
each policy of all such insurance prior to the beginning of the term hereof
and each renewal policy at least thirty (30) days prior to the expiration of
the policy it renews. Tenant agrees to furnish Landlord with evidence
reasonably satisfactory to Landlord that each installment of the premiums for
each policy of such insurance have been fully paid prior to the date the same
is due. Each such policy shall provide that it may not be canceled or amended
without prior written notice to Landlord. In the event provision for any such
insurance is to be by a blanket insurance policy, the policy shall allocate a
specific and sufficient amount of coverage to the Premises and include an
agreed amount clause. Adjustment of loss on any claims made against the
insurance carried pursuant to Subsection 3.2.2.1 shall be made and the
insurance proceeds shall be paid as provided in Article X.
All insurance which is carried by either party with respect to the
Premises, whether or not required (if either party so requests and it can be
so written, and if it does not result in additional premium, or if the
requesting party agrees to pay and does pay any additional premium), shall
include provisions which either designate the other party as one of the
insureds or deny the insurer acquisition by subrogation of rights of recovery
against the other party to the extent such rights have been waived by the
insured party prior to the occurrence of loss or injury, insofar as, and to
the extent that such provisions may be effective without making it impossible
to obtain insurance coverage from responsible companies qualified to do
business in the Commonwealth of Massachusetts (even though extra premium may
result therefrom). Each party shall be entitled to have duplicates or
certificates of any policies containing such provisions. Each party hereby
waives all rights of recovery against the other for loss or injury against
which the waiving party is protected by insurance containing said provisions,
reserving, however, any rights with respect to any excess of loss or injury
over the amount recovered by such insurance.
The insurance coverages in the minimum amounts set forth in Subsection
1.1.13 or in this Subsection 3.2.2 shall be subject to increases from time to
time as reasonably required by Landlord.
3.2.3 UTILITIES. Tenant shall pay directly to the proper authorities
charged with the collection thereof all charges for water, sewer, gas,
electricity, cable, telephone and other utilities or services used or
consumed on the Premises or in connection with easements and other
appurtenant rights or obligations that benefit or burden the Premises for
which the owner of the Premises is obligated to pay. Landlord shall not be
responsible in any manner for the adequacy, suspension, interruption, or
curtailment of any services to the Premises, regardless of the cause thereof,
and, no such suspension, interruption or curtailment shall give rise to any
claim for abatement or other compensation to Tenant from Landlord, nor shall
Tenant claim any direct or consequential damages on account thereof, nor
shall this Lease or any obligation of Tenant hereunder be affected thereby,
nor shall Tenant claim the same as a constructive eviction.
3.3 NET LEASE. It is the intention of the parties that this Lease be
absolutely net to Landlord. Except as otherwise provided in Article X regarding
casualty, all costs, expenses and obligations of every kind relating to the
Premises, whether usual or unusual, ordinary or extraordinary, foreseen or
unforeseen, which may arise or become due during the Lease Term shall be paid by
Tenant. Tenant's obligation to pay Rent is independent of any obligation of
Landlord hereunder and shall be made without set-off, reduction or offset
whatsoever, except as otherwise expressly provided herein.
3.4 SECURITY DEPOSIT. Tenant agrees to deposit with Landlord, upon the
execution of this Lease, the Security Deposit, as set forth in Subsection
1.1.14, as security for the full and faithful performance by Tenant of each and
every term, provision, covenant and condition of this Lease. If Tenant defaults
in respect to any of the terms, provisions, covenants and conditions of this
Lease, including, but not limited to, payment of the Annual Base Rent, and
Additional Rent, Landlord may use, apply, or retain the whole or any part of
said Security Deposit for the payment of any such Annual Base Rent and
Additional Rent, or for any other sum which Landlord may expend or be required
to expend by reason of Tenant's default, including without limitation any
damages or deficiency in the reletting of the Premises, whether such damages or
deficiency shall have occurred before or after any re-entry by Landlord. If any
of the Security Deposit shall be so used, applied or retained by Landlord, at
any time or from time to time, then Tenant shall promptly, in each such
instance, upon the written demand therefor by Landlord, pay to Landlord such
additional sum as may be necessary to restore the Security Deposit to the
original amount set forth in Subsection 1.1.14.
If Tenant shall fully and faithfully comply with all the terms, provisions,
covenants, and conditions of this Lease, the Security Deposit, or any balance
thereof, shall be returned to Tenant after all of the following have taken
place: (a) the Lease Term has expired; (b) Tenant's removal of its property from
the Premises; (c) the surrender of the Premises and vacation thereof by Tenant
to Landlord in accordance with this Lease; and (d) all Rent owed pursuant to
this Lease has been computed by Landlord and paid by Tenant.
Landlord shall deliver the Security Deposit funds deposited hereunder by
Tenant not theretofore expended pursuant to the terms and conditions of this
Lease by Landlord to the transferee of Landlord's interest in the Buildings in
the event that such interest is transferred, and thereupon Landlord shall be
discharged from any further liability with respect to said Security Deposit.
Tenant hereby agrees not to look to any Mortgagee as mortgagee, mortgagee in
possession, or successor in title to the Premises for any Security Deposit
required by Landlord hereunder, unless said sums have actually been received by
said Mortgagee as security for Tenant's performance of this Lease.
Notwithstanding the foregoing, Landlord shall use reasonable efforts to obtain
from each Mortgagee during the Lease Term an agreement, for the benefit of
Tenant, pursuant to which the Mortgagee agrees to remain responsible for the
portion of the Security Deposit not theretofore expended pursuant to the terms
and conditions of this Lease in the event of a foreclosure or deed in lieu of
foreclosure or similar exercise of remedies by the Mortgagee and agrees to
deliver the portion of the Security Deposit not theretofore expended pursuant to
the terms and conditions of this Lease to any Successor (as defined in Section
15.2). Landlord further agrees that if a first Mortgagee requires that the
Mortgagee hold the Security Deposit in order to accept responsibility for the
Security Deposit, Landlord will cooperate with the Mortgagee by agreeing to the
appropriate arrangements. Tenant also agrees to cooperate with any arrangements
resulting from transfer of the Security Deposit to a Mortgagee.
Subject to Landlord's right to draw upon the Security Deposit as herein
provided, Landlord agrees to hold the Security Deposit in a segregated account.
The account shall be in Landlord's name but specifically designate that the
funds are being held by Landlord as Landlord under this Lease and subject to the
rights of Tenant under this Lease, to the extent permitted by the account
holder. Landlord shall notify Tenant of the account holder, name of the account
and number of the account in which the Security Deposit is held from time to
time. Except as otherwise required by law, Tenant shall not be entitled to, nor
Landlord liable for, any interest on the Security Deposit, and any interest
earned on the account shall at all times be the property of Landlord and may be
withdrawn and expended as Landlord may elect from time to time.
In the absence of evidence satisfactory to Landlord of any assignment of the
right to receive the Security Deposit or the remaining balance thereof, Landlord
may return the Security Deposit to the original Tenant, regardless of one or
more assignments of this Lease.
ARTICLE IV - CONDITION OF PREMISES; COVENANTS
4.1 CONDITION OF PREMISES. The Premises are leased to Tenant in an "as is"
condition with all faults. Tenant acknowledges that it is currently occupying
the Premises pursuant to a Lease with Metropolitan Life Insurance Company, as
assigned to and assumed by Landlord, and has had full opportunity to inspect the
Premises with such consultants as it deemed necessary, and to review and analyze
(a) any applicable laws, ordinances, rules or regulations of any governmental
authority having jurisdiction over the Premises (collectively, "Legal
Requirements", which include, without limitation, the applicable zoning
ordinances or by-laws, rules and regulations of the Town of Tewksbury,
Massachusetts), and that neither Landlord nor any agent of Landlord has made or
implied any warranties or representations as to the condition of the Premises,
as to their sufficiency for Tenant's use or as to the conformity of the Premises
or Tenant's use of the Premises with applicable Legal Requirements; (b) any
covenants, conditions or restrictions of record that affect the Premises; or (c)
the terms of any policy of insurance maintained or to be maintained by Tenant
and applicable to (or affecting any condition, operation, use or occupancy of)
the Premises or any part or parts thereof, or any requirement of the issuer of
any such policy or any order, rule, regulation or other requirement of the
National Board of Fire Underwriters or any other body exercising similar
functions ("Insurance Requirements"). Tenant acknowledges that Landlord is
leasing the Premises to Tenant, and Tenant is accepting and leasing the Premises
from Landlord in its "as-is" condition as of the Lease Commencement Date, and,
except as expressly provided in Section 4.2.3.1 below, Landlord shall have no
obligation whatsoever to perform any work in or on the Premises including,
without limitation, make any repairs or improvements to the Premises, prepare,
or otherwise alter or improve the Premises for Tenant's continued occupancy of
the Premises under the terms of this Lease.
4.2 AFFIRMATIVE COVENANTS. Tenant covenants at its expense at all
times during the Lease Term and such further time as Tenant occupies the
Premises or any part thereof:
4.2.1 PERFORM OBLIGATIONS. To perform promptly all of the obligations of
Tenant set forth in this Lease; and to pay when due all Rent, including,
without limitation, the Base Rent and Additional Rent and all charges, rates
and other sums which by the terms of this Lease are to be paid by Tenant.
4.2.2 USE. To use and occupy the Premises solely for the Permitted Uses
and for no other use or purpose. Tenant shall not use or occupy the Premises
for any unlawful purpose or in any manner that will be inconsistent with any
certificate of occupancy applicable from time to time to the Premises or the
Buildings or any part thereof, or that will constitute waste or nuisance.
Landlord recognizes that Tenant may obtain a new certificate or certificates
of occupancy or modifications or amendments to the certificate or
certificates of occupancy applicable to the Premises from time to time
consistent with the Permitted Uses.
4.2.3 REPAIR AND MAINTENANCE. Except as otherwise provided in Article X,
to put and keep each and every part of the Premises, including, without
limitation, the structural and nonstructural portions of the Buildings and
all systems and systems components, in good operating condition and repair.
Notwithstanding the foregoing, Tenant's obligations shall include, without
limitation: (i) subject to the provision of Subsection 4.2.3.1 below, regular
maintenance of the roofing system and roof deck, membrane assembly, flashing,
roof insulation assembly, hatches, sleeves, vent and drain fixtures and all
plumbing, heating, ventilating, air conditioning, mechanical and electrical
systems, installations and facilities therein, including, without limitation,
exterior and interior glass; (ii) replacement of footings, foundations, floor
slabs, columns, girders, load bearing and non-load bearing exterior walls,
and the roofing system and its components; (iii) repair and maintenance of
easements or other appurtenant rights that benefit or burden the Premises as
required pursuant to any recorded documents evidencing such easements or
rights; (iv) replacement of Building components and systems and components of
Building systems no later than the end of their reasonably anticipated useful
lives with systems of comparable or better quality, including, without
limitation, all plumbing, heating, ventilating, air conditioning, mechanical
and electrical systems; (v) maintaining the Buildings' shells in weather
tight condition and maintenance of the Buildings' exteriors in a manner
consistent with a first-class office-industrial park; (vi) keeping reasonably
free of snow and ice the roofs and all surfaced roadways, walks, parking and
loading areas and easements or other appurtenant rights that benefit or
burden the Premises, and repairing or resurfacing paved areas to maintain
them in a good condition. Tenant shall make all repairs and replacements,
whether foreseen or unforeseen, ordinary or extraordinary, and do all other
work necessary for the foregoing purposes. Tenant acknowledges that, except
as specifically provided in Subsection 4.2.3.1 below, Landlord shall have no
obligation to effect any repair, replacement or maintenance of all or any
part of the Premises whatsoever.
4.2.3.1 ROOF REPAIR AND REPLACEMENT OBLIGATIONS. Without limiting any
other term of this Lease, Landlord agrees to replace the roof, including
all roof covering and components if and when necessary, provided however
that upon the execution of this Lease Tenant shall at its sole cost and
expense, institute and maintain a program of regular maintenance and
repair work for the roof, which shall include, without limitation, annual
visual inspections of the roof by Tenant's roofing contractor (without the
requirement of infrared or other testing), copies of which annual
inspection reports shall be promptly delivered to Landlord; and Tenant
shall perform all work reasonably necessary to maintain the roof in good
repair and condition, including, without limitation, any repair work
recommended by the roofing contractor following each annual inspection.
Tenant further acknowledges and agrees that Landlord shall have the right
from time to time, but not more frequently than annually, to have the roof
inspected at Landlord's expense, to determine if Tenant is complying with
its maintenance and repair obligations hereunder.
4.2.4 COMPLIANCE WITH LEGAL REQUIREMENTS. At its own cost and expense, to
promptly observe and comply with all Legal Requirements and Insurance
Requirements and, to make such alterations, additions, improvements and/or
renovations to the Buildings or the Premises as may be necessary to maintain
the same in compliance with such Legal Requirements and Insurance
Requirements. All work performed by Tenant in order to meet its requirements
hereunder shall conform to the requirements of Subsection 4.3.2. Tenant shall
pay all costs, expenses, liabilities, losses, damages, fines, penalties,
claims and demands that may in any manner arise out of or be imposed because
of the failure of Tenant to comply with the covenants of this Subsection
4.2.4. The parties acknowledge that the Americans With Disabilities Act of
1990(42 U.S.C.Sec.12101 et seq.) and regulations and guidelines promulgated
thereunder, as all of the same may be amended and supplemented from time to
time (collectively referred to herein as the "ADA") establish requirements
under Title III of the ADA ("Title III") pertaining to business operations,
accessibility and barrier removal, and that such requirements may be unclear
and may or may not apply to the Premises depending on, among other things:
(a) whether Tenant's business operations are deemed a "place of public
accommodation" or a "commercial facility", (b) whether compliance with such
requirements is "readily achievable" or "technically infeasible", and (c)
whether a given alteration affects a "primary function" or triggers so-called
"path of travel" requirements. Tenant shall be responsible for all Title III
compliance and costs in connection with the Premises, including any leasehold
improvements or other work to be performed in the Premises under or in
connection with this Lease, and any so-called Title III "path of travel"
requirements triggered by any construction activities or alterations in the
Premises. Tenant shall be solely responsible for all requirements under the
ADA relating to the Premises, including, without limitation, requirements
under Title I of the ADA pertaining to Tenant's employees.
4.2.5 PAYMENT FOR TENANT'S WORK. To pay promptly when due the entire cost
of any work to the Premises undertaken by Tenant and to remove by payment or
by filing any bond required by law within ten (10) days after notice thereof
all liens for labor and materials; to procure all necessary permits before
undertaking such work; to do all of such work in a good and workmanlike
manner, employing new materials of first class quality and complying with all
Legal Requirements and Insurance Requirements and to save Landlord harmless
and indemnified from all injury, loss, claims or damage to any person or
property occasioned by or growing out of such work.
4.2.6 INDEMNITY. To assume exclusive control of the Premises, and all tort
liabilities incident to the control or leasing thereof, and to defend,
indemnify and save Landlord, any Mortgagee and any of their respective
partners, shareholders, officers, directors, employees, agents and
contractors harmless from all injury, loss, claim or damage to or of any
person or property while on the Premises however arising, unless such injury,
loss, claim or damage was occasioned by the negligence or willful misconduct
of Landlord or any agent, servant or contractor of Landlord, and except as
otherwise expressly provided in Subsection 4.2.10.
4.2.7 LANDLORD'S RIGHT TO ENTER. To permit Landlord and its agents to
enter into and examine the Premises subject to Tenant's reasonable security
regulations at reasonable times during business hours and upon not less than
twenty-four (24) hours' prior notice. Notwithstanding the foregoing, in the
event of an emergency, Landlord or its agents may enter the Premises at any
time without prior notice to Tenant.
4.2.8 PERSONAL PROPERTY AT TENANT'S RISK. That all of the furnishings,
fixtures, equipment, effects and property of every kind, nature and
description of Tenant and of all persons claiming by, through or under Tenant
which, during the continuance of this Lease or any occupancy of the Premises
by Tenant or anyone claiming under Tenant, may be on the Premises, shall be
at the sole risk and hazard of Tenant, and if the whole or any part thereof
shall be destroyed or damaged by fire, water or otherwise, or by the leakage
or bursting of water pipes, by theft or from any other cause, no part of said
loss or damage is to be charged to or to be borne by Landlord.
4.2.9 YIELD UP. At the expiration of the Lease Term or upon the earlier
termination of this Lease, to surrender all keys to the Premises, to remove
all of its trade fixtures and personal property in the Premises, to repair
all damage caused by such removal and the removal of any Alterations
(hereinafter defined) that Tenant removes pursuant to Section 4.3 and to
yield up the Premises, broom-clean and in good operating condition and
repair, reasonable use and wear and tear from the last repair, maintenance or
replacement required by Section 4.2.3 excepted. Any property not so removed
shall be deemed abandoned and may be removed and disposed of by Landlord in
such manner as Landlord shall determine and Tenant shall pay Landlord the
entire cost and expense incurred by it in effecting such removal and
disposition and in making any incidental repairs and replacements to the
Premises and for use and occupancy during the period after the expiration of
the Lease Term and prior to its performance of its obligations under this
Subsection 4.2.9. Tenant shall further indemnify Landlord against all loss,
cost and damage resulting from Tenant's failure and delay in surrendering the
Premises as above provided. Notwithstanding anything herein to the contrary,
Tenant shall not be required to remove any Alterations (as defined in
Subsection 4.3.2) or other improvements to the Premises made by Tenant during
the Lease Term which have been approved by Landlord pursuant to Subsection
4.3.2 herein, unless Landlord, in connection with such approval, required
that such Alterations or improvements be removed at the expiration or earlier
termination of this Lease.
4.2.10 HAZARDOUS MATERIALS. Not to cause or permit any Hazardous Materials
to be used, stored, generated or released or disposed of on or in the
Premises by Tenant, Tenant's agents, employees or contractors, or any party
claiming by, through or under Tenant, without obtaining Landlord's prior
written consent, provided that Tenant may use and store incidental amounts of
(a) Hazardous Materials as customarily found in office buildings and (b)
Hazardous Materials listed on Exhibit B attached hereto and made a part
hereof and customarily used for cleaning and lubricating Tenant's equipment,
in each case so long as Tenant complies with all provisions of this
Subsection 4.2.10. Landlord's consent to the use and storage of additional
Hazardous Materials shall not be unreasonably withheld or delayed, so long as
the additional Hazardous Materials are reasonably necessary for the operation
of Tenant's business in the Premises, the use and storage of the additional
Hazardous Materials will be limited to reasonable amounts and the use or
storage of the additional Hazardous Materials is not anticipated by Landlord
in Landlord's reasonable discretion to have a material adverse affect on the
value of the Premises. Any use, storage, generation or disposal of Hazardous
Materials shall comply with all applicable federal, state and local laws and
regulations and Insurance Requirements. For purposes of this Lease, the term
"Hazardous Materials" means any chemical, substance, waste, material, gas or
emission which is deemed hazardous, toxic, a pollutant, or a contaminant
under any statute, ordinance, by-law, rule, regulation, executive order or
other administrative order, judgment, decree, injunction or other judicial
order of or by any governmental authority, now or hereafter in effect,
relating to pollution or protection of human health or the environment. By
way of illustration and not limitation, "Hazardous Materials" includes
asbestos, radioactive materials, and "oil," "hazardous materials," "hazardous
waste," "hazardous substance" and "toxic material" as defined in the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq., as amended, and the Toxic Substances Control
Act, 15 U.S.C. Section 2601 et seq., as amended, the regulations promulgated
thereunder, and Massachusetts General Laws, Chapter 21C and Chapter 21E and
the regulations promulgated thereunder.
If Tenant or Tenant's agents, employees or contractors, or any party
claiming by, through or under Tenant, use, store, generate or dispose of
Hazardous Materials on or in the Premises, or if the Premises become
contaminated in any manner after the Lease Commencement Date, except as
expressly hereinafter provided in this Subsection 4.2.10, Tenant shall
indemnify, defend and hold harmless Landlord from any and all claims,
damages, fines, judgments, penalties, costs, liabilities or losses arising
during or after the Lease Term and arising as a result of such contamination.
This indemnification includes, without limitation, any and all costs incurred
due to any investigation or testing of the site or any cleanup, testing,
removal or restoration mandated by a federal, state or local agency or
political subdivision or any Lender. Without limitation of the foregoing, if
Tenant or Tenant's agents, employees, or contractors, or persons claiming by,
through or under Tenant causes the presence of any Hazardous Materials on the
Premises and such results in contamination, Tenant shall promptly, at its
sole expense, take any and all necessary actions to return the Premises to
the condition existing prior to the presence of any such Hazardous Materials
on the Premises. Except in the case of an emergency, Tenant shall first
obtain Landlord's approval for any such remedial action, which approval shall
not be unreasonably withheld or delayed and which in any event shall be
granted if the regulatory authorities with jurisdiction have approved the
proposed remedial action.
Tenant shall notify Landlord immediately upon its receipt of notice,
whether written or verbal, or other actual knowledge, of any alleged release
or discovery of Hazardous Materials on or about the Premises, or the
potential or actual migration of Hazardous Materials onto the Premises.
Notwithstanding the other provisions of this Lease regarding notice, in
addition to giving Landlord written notice of an alleged release or discovery
of Hazardous Materials on or about the Premises, Tenant shall also give
telephonic notice to such individual, employee or agent of Landlord as
Landlord may designate in writing to Tenant from time to time and to any
environmental consultant of Landlord's of which Landlord may give Tenant
notice from time to time.
If the presence of any Hazardous Materials for which Tenant has
indemnified Landlord is required to be investigated, removed or remediated,
or be subject to any other action under applicable Legal Requirements, Tenant
shall at its sole expense promptly undertake such investigation, removal or
remediation or other action and shall perform the same in accordance with all
applicable legal requirements and, to the extent consistent with Legal
Requirements, any accepted and relevant industry practices; provided that
Landlord's approval of such action shall first be obtained, which approval
shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing provisions of this Subsection 4.2.10 or the
provisions of Subsection 4.2.6, Tenant's obligation to indemnify, defend and
hold harmless Landlord shall not extend to any injury, loss, claim, damage,
fine, judgment, penalty, cost or liability arising as a result of:
(a) contamination of the Premises by Hazardous Materials caused by
Landlord;
(b) Hazardous Materials existing on or about the Premises prior to the
Lease Commencement Date as a result of the act or omission of any party other
than Tenant, its employees, agents, contractors or invitees ("PRE-EXISTING
HAZARDOUS MATERIALS"); or
(c) Hazardous Materials migrating or being released onto the Premises from
off the Premises, in either case as a result of the act or omission of any
party other than Tenant, its employees, agents, contractors or invitees
("OFF-SITE HAZARDOUS MATERIALS");
and, in the case of Pre-Existing Hazardous Materials or Off-Site Hazardous
Materials, provided that Tenant gives prompt notice to Landlord of the
existence, release or migration of the Pre-Existing Hazardous Materials or
Off-Site Hazardous Materials upon Tenant's obtaining actual knowledge of such
existence, release or migration as hereinabove provided (but Tenant shall not
be obligated to search any government records or perform any physical or
other investigations to determine the existence of any Pre-Existing Hazardous
Materials or Off-Site Hazardous Materials). In addition, in an emergency with
respect to Pre-Existing Hazardous Materials or Off-Site Hazardous Materials,
Tenant shall take such commercially reasonable steps during the period of
time that it should reasonably take Landlord to respond to the emergency
after receiving Tenant's telephonic notification of Pre-Existing Hazardous
Materials or Off-Site Hazardous Materials as are minimally necessary to
contain the release or migration of Pre-Existing Hazardous Materials or
Off-Site Hazardous Materials and to prevent Pre-Existing Hazardous Materials
or Off-Site Hazardous Materials entering the Premises or to limit
contamination of the Premises by Pre-Existing Hazardous Materials or Off-Site
Hazardous Materials; but in no event shall Tenant's obligation with respect
to Pre-Existing Hazardous Materials or Off-Site Hazardous Materials include
the obligation to notify or make any filing with any governmental authority
or agency or to undertake any remediation other than temporary, interim steps
to contain or limit contamination during the period reasonably required for
Landlord to respond to the emergency.
The provisions of this Subsection 4.2.10 shall survive the expiration or
termination of this Lease.
4.2.11 SAFETY APPLIANCES; LICENSES. To keep the Premises equipped with all
safety appliances (such as, without limitation, fire extinguishers) required
by law or ordinance or any other regulation of any public authority because
of the particular manner of use made by Tenant of the Premises, and to
procure all licenses and permits so required because of Tenant's particular
manner of use and, if requested by Landlord, to do any work so required
because of such use, it being understood that the foregoing provisions shall
not be construed to broaden in any the Permitted Uses.
4.2.12 PERSONAL PROPERTY TAXES. To pay, on or before the due date thereof,
all taxes charged, assessed or imposed upon the personal property (including,
without limitation, fixtures and equipment) of Tenant in or upon the
Premises.
4.3 NEGATIVE COVENANTS. Tenant covenants at all times during the
Lease Term, and such further time as Tenant occupies the Premises or any part
thereof:
4.3.1 OVERLOADING, NUISANCE, ETC. Not to injure, overload, deface or
otherwise harm the Premises; nor commit any nuisance; nor make, allow or
suffer any waste; nor make any use of the Premises which is improper,
offensive or contrary to any law or ordinance or which will invalidate any
insurance.
4.3.2 INSTALLATION, ALTERATIONS OR ADDITIONS. Not to make any alteration,
addition, improvement and/or renovation to the Buildings or Premises desired
to be made by Tenant or required hereunder to be made by Tenant, whether in
preparation for the initial occupancy of the Premises by Tenant or at any
time thereafter during the Lease Term (any such alteration, addition,
improvement and/or renovation, an "Alteration") that is structural or costs
one hundred thousand dollars ($100,000) (adjusted to reflect any increase or
decrease in the CPI from the date of this Lease) or more, without on each
occasion obtaining the prior written consent of Landlord, which consent shall
not be unreasonably withheld or delayed. Except as set forth in Section 16.18
below, notwithstanding anything herein to the contrary, Landlord shall have
no obligation to approve or be reasonable with respect to its approval of any
Alteration which affects the structure or exterior of the Buildings, which
reduces or enlarges the gross leasable area of the Buildings or which
adversely affects the value of the Buildings or is not readily adaptable to
normal office, research and development or light manufacturing use. All
Alterations shall become part of the Premises upon expiration or earlier
termination of this Lease, unless they are not consistent with the use of the
Premises for the Permitted Uses by a future occupant and Landlord specifies
the same for removal at the time Landlord grants approval of the Alterations.
Before any Alteration is commenced, Tenant shall (i) secure all necessary
licenses, permits and approvals required from any applicable governmental
authorities required by applicable Legal Requirements for the Alterations and
furnish copies thereof to the Landlord; (ii) deliver to Landlord a copy of
the plans and specifications for the alterations and a statement of the names
of all its proposed contractors and the estimated cost of all labor and
materials to be furnished by them; and (iii) carry or cause each contractor
to carry the following insurance:
4.3.2.1 Worker's compensation and occupational disease insurance
with statutory limits;
4.3.2.2 Employer's liability insurance with a limit of $500,000;
4.3.2.3 Commercial general liability insurance, including personal
injury and property damage, in the amount of a combined single limit of
not less than $1 million each occurrence, $5 million in the aggregate.
Coverage must also include independent contractors and contractual
liability coverage. Landlord and any Mortgagee of Landlord of which Tenant
has notice shall be named as additional insureds with respect to any claim
made with respect to the Premises;
4.3.2.4 Comprehensive automobile liability insurance including single
injury and property damage in the amount of a combined single limit of $1
million each occurrence. Coverage must include owned, leased, hired and
non-owned vehicles; and
4.3.2.5 All-risk installation floater insurance to protect Landlord's
interest and that of Tenant, contractors and subcontractors during the
course of the construction of any alterations or improvements with limits
not less than the amount of the cost of the work.
All such insurance shall be written in companies approved by Landlord.
Tenant shall deliver to Landlord certificates of all such insurance prior to
the commencement of such work. Tenant shall indemnify, defend and hold
harmless Landlord from and against any and all liability, damage, penalties
or judgments in, from and against any claims, actions, proceedings and
expenses and costs in connection therewith, including reasonable attorneys'
fees arising out of or resulting from any Alterations. Tenant agrees to pay
promptly when due the entire cost of any work done on the Premises by Tenant,
its agents, employees or independent contractors and not to cause or permit
any liens for labor or materials performed or furnished in connection
therewith to attach to the Premises. Landlord's consent to any Alterations
shall not be deemed to be an agreement or consent by Landlord to subject
Landlord's interest in the Premises to any mechanic's or materialmen's lien
which may be filed in respect of any such Alterations made by or on behalf of
Tenant. If any mechanic's or materialmen's lien is filed against the Premises
or any portion thereof or interest therein for work claimed to have been done
for, or materials claimed to have been furnished to Tenant, such lien shall
be discharged by Tenant within ten (10) days after the earlier of the time
that Tenant receives notice or otherwise obtains actual knowledge of such
lien, at Tenant's sole cost and expense, by the payment thereof or by filing
any bond required by law. Tenant shall notify Landlord promptly of the
attachment of any lien against all or any portion of the Premises or Tenant's
interest therein of which Tenant has knowledge. If Tenant shall fail to
discharge any such mechanic's or materialmen's lien, Landlord may, at its
option, discharge the same and treat the cost thereof as Additional Rent
payable with the monthly installment of rent next becoming due; it being
hereby expressly covenanted and agreed that such discharge by Landlord shall
not be deemed to waive or release the default of Tenant in not discharging
the same. Any alterations costing in excess of $750,000 (as adjusted to
reflect any increase or decrease in the CPI from the date of this Lease)
shall be performed under a written construction contract providing for
payment, performance and lien bonds in the full amount of the contract sum.
All contractors used by Tenant to perform any Alterations shall be duly
licensed by all applicable jurisdictions within which all or any part of the
Premises is located.
Within forty-five (45) days after completion of any Alterations, Tenant
shall provide "as-built" plans and specifications for such Alterations to
Landlord.
All Alterations which Landlord has designated for removal by Tenant
pursuant to this Subsection 4.3.2 shall be removed by Tenant, except that, if
after having so designated an Alteration for removal, Landlord thereafter
gives notice to Tenant at least six months before the expiration of the Lease
Term that Landlord would be willing to let such Alteration remain after the
expiration of the Lease Term, Tenant may elect whether to remove such
Alteration or leave it as part of the Premises upon the expiration of the
Lease Term. Tenant shall repair all damage caused by such removal.
ARTICLE V - ASSIGNMENT AND SUBLETTING
5.1 GENERAL PROHIBITION OF ASSIGNMENT AND SUBLETTING. Except as hereinafter
provided, Tenant shall not, without the prior written consent of Landlord, which
Landlord may withhold in its sole discretion, assign, mortgage, pledge, or
otherwise transfer or encumber this Lease or its interest therein, in whole or
in part, or permit the assignment or transfer of this Lease or the right of
occupancy thereunder by operation of law or otherwise. Furthermore, if at any
time during the Lease Term, Tenant is (a) a corporation (excluding a corporation
the outstanding voting stock of which is listed on a recognized securities
exchange) or a trust (whether or not having shares of beneficial interest) and
there shall occur any change in the identity of any of the persons then having
power to participate in the election or appointment of the directors, trustees
or other persons exercising like functions and managing the affairs of Tenant,
or (b) a partnership or association or otherwise not a natural person (and is
not a corporation or a trust) and there shall occur any change in the identity
of any of the persons who then are members of such partnership or association or
other entity or who comprise Tenant, such change in identity shall constitute an
assignment of this Lease for all purposes hereunder.
Notwithstanding the foregoing, Tenant may assign its interest in this Lease
to (i) any corporation or entity which is a successor to Tenant either by merger
or consolidation, (ii) a purchaser of all or substantially all of Tenant's
assets, or (iii) a corporation or other entity which shall (A) control, (B) be
under the control of, or (C) be under common control with, Tenant (the term
"control" as used herein shall mean ownership of more than fifty percent (50%)
of the outstanding voting stock of a corporation, or other equivalent equity and
control interest if Tenant is not a corporation) so long as (I) the principal
purpose of such assignment is not the acquisition of Tenant's interest in this
Lease (except if such assignment is made for a valid intracorporate business
purpose to an entity described in clause (C) above) and is not made to
circumvent the provisions of this Section 5.1, and (II) any such assignee shall
have a net worth, determined in accordance with generally accepted accounting
principles, consistently applied, after giving effect to such assignment, equal
to or greater than Tenant's net worth, as so determined, on the Lease
Commencement Date. Further notwithstanding the foregoing, Landlord shall not
unreasonably withhold or delay its consent to an assignment of this Lease or a
subletting of all or any portion of the Premises to a tenant whose credit, as
determined by Landlord in its reasonable discretion, is at least as good as the
credit of the original Tenant as of the execution of this Lease and who does not
use materially more or different Hazardous Materials in the operations it
intends to conduct on or about the Premises. With respect to any sublease or
assignment, Tenant shall be obligated to pay Landlord as additional rent, fifty
percent (50%) of any "Net Profit" received by Tenant. For purposes of the
preceding sentence, "Net Profit" shall mean the excess of all rent and other
consideration paid by such sublessee or assignee to Tenant over the sum of that
portion of the rent and additional rent paid by Tenant to Landlord hereunder
reasonably allocable to such subleased space or the Premises, as the case may
be, and all out-of-pocket third party expenses reasonably incurred by Tenant for
leasing commissions and leasehold improvements necessitated by such sublease
(amortized over the term of the sublease or the lease, as applicable). Any
attempted assignment, mortgage, pledge, transfer, or encumbrance by Tenant of
this Lease or its interest herein contrary to the provisions of this Section 5.1
shall, at the option of Landlord, terminate this Lease, and Tenant shall remain
liable for all Rent and other sums due under this Lease and all damages suffered
by Landlord on account of such breach by Tenant.
5.2 TERMS GOVERNING ASSIGNMENTS AND SUBLEASES. Any assignment of this Lease
or subletting of the Premises is subject to all of the terms, covenants and
conditions of this Lease, including, without limitation, the provisions of this
Article V relating to the assignment of this Lease (which shall also govern in
the case of the assignment of any sublease by such subtenant) and the subletting
of the Premises. Tenant shall reimburse Landlord as Additional Rent, for
Landlord's reasonable legal fees and disbursements and other expenses incurred
in connection with any request by Tenant to assign or sublet, promptly following
Landlord's demand therefor.
5.3 NO WAIVER OR RELEASE. The consent by Landlord to any assignment or
subletting shall not be construed as a waiver or release of Tenant from its
primary liability for the performance of all covenants and obligations to be
performed by Tenant under this Lease nor as limiting or affecting in any way any
of Landlord's rights or remedies, including, without limitation, its rights and
remedies under Article XII, nor shall the collection or acceptance of Rent from
any assignee, transferee or subtenant constitute a waiver or release of Tenant
from any such primary liability, which following any assignment, transfer or
sublease shall be joint and several with the assignee, transferee or sublessee,
as the case may be. Landlord's consent to any assignment or subletting shall not
be construed as relieving Tenant from the obligation of complying with the
provisions of Section 5.1 hereof, as applicable, with respect to any subsequent
assignment or subletting.
ARTICLE VI - SIGNS AND FURNISHINGS
6.1 SIGNAGE. No sign, advertisement or notice (hereinafter "sign") shall be
inscribed, painted, affixed or otherwise displayed by Tenant on any part of the
exterior or the interior of the Building, or on the Premises, unless any such
sign has been approved in writing by Landlord. Landlord's approval shall not be
unreasonably withheld or delayed and shall not be withheld if the sign is
reasonably consistent with signs used on similarly situated buildings and land
and complies with all applicable Legal Requirements.
6.2 FLOOR LOAD; DELIVERIES. Landlord shall have the right to prescribe the
weight and position of safes and other heavy equipment, supplies, fixtures and
other concentrated loads, which, if allowed by Landlord, shall be installed in
such manner as to distribute their weight adequately. Any and all damage or
injury to the Premises or the Building caused by moving the same in or upon the
Premises shall be repaired by and at the sole cost and expense of Tenant.
ARTICLE VII - ENTRY BY LANDLORD
Tenant will permit Landlord, its agents or representatives to enter the
Premises at all reasonable times following reasonable advance notice (or at any
time in cases of emergency and without advance notice in such cases) to examine,
inspect (including without limitation, at Landlord's sole election, to conduct
periodic environmental audits of the Premises) and protect the Premises and the
Building, to exercise any rights or perform any obligations pursuant to this
Lease, or to show the same to prospective tenants of the Premises during the
last year of the Lease Term and to prospective purchasers and Mortgagees at all
reasonable times. In connection with any such entry, Landlord shall endeavor to
minimize the disruption to Tenant's use of the Premises.
ARTICLE VIII - INTERRUPTION OF SERVICES
Landlord shall not have any liability to Tenant whatsoever as result of
Landlord's failure or inability to perform any other covenant or duty to be
performed by Landlord hereunder by reason of any so-called force majeure cause
reasonably beyond Landlord's control, including, without limitation, acts of
God, casualty, strikes, scarcity of labor or materials, governmental
requirements or the like. Any such failure or inability due to force majeure
causes to perform the covenants or duties required hereunder shall not be
considered an eviction, actual or constructive, of Tenant from the Premises and
shall not entitle Tenant to terminate this Lease nor to any abatement of Rent
payable hereunder nor Tenant to claim any direct, indirect or consequential
damages on account thereof.
ARTICLE IX - LIABILITY OF LANDLORD
9.1 LIMITATION OF LIABILITY. Landlord shall not be liable to Tenant, its
employees, agents, business invitees, licensees, customers, or guests 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 Building or the Premises, any fire, robbery,
theft, mysterious disappearance and/or any other crime or casualty, 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 gross negligence or willful misconduct of Landlord. Any goods, property
or personal effects stored or placed by Tenant or its employees in or about the
Premises shall be at the sole risk of Tenant, and Landlord shall not in any
manner be held responsible therefor. Notwithstanding the foregoing, Landlord
shall not be released from liability for any injury, loss, damages or liability
to the extent arising from any gross 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.
9.2 NO RIGHT OF SET-OFF. In the event that Tenant shall have a claim against
Landlord, at any time during the Lease Term, Tenant shall not have the right to
deduct the amount allegedly owed to Tenant from any Rent or other sums payable
to Landlord, it being understood that Tenant's sole remedy for recovering upon
such claim shall be an independent action against Landlord.
9.3 NONRECOURSE. In the event Tenant is awarded a money judgment against
Landlord, Tenant's sole recourse for satisfaction of such judgment shall be
limited to Landlord's then interest in the Property. In no event shall any
partner, officer, director, trustee, stockholder, employee or beneficiary of
Landlord or any other person be held to have any personal liability for
satisfaction of any claims or judgments that Tenant may have against Landlord
and Tenant may not look to any other assets of Landlord or any beneficiary of
Landlord.
ARTICLE X - DAMAGE OR DESTRUCTION
10.1 RESTORATION OR TERMINATION. If, during the Lease Term, the Premises or
the Building is totally or partially damaged or destroyed, rendering the
Premises totally or partially inaccessible or unusable, Tenant shall, at its
sole cost and expense, promptly and diligently restore and repair the Premises
and the Building, as the case may be, to their condition immediately prior to
the damage or destruction; provided, however, if such damage or destruction is
caused by a risk insured against under Section 3.2.2 above and is not reasonably
susceptible of being repaired or restored within twelve (12) months after the
occurrence of such damage or destruction (taking into account the time needed
for removal of debris, preparation of plans and issuance of all required
governmental permits and a satisfactory settlement with any insurance companies
involved) Landlord or Tenant may, within forty-five (45) days after the
occurrence of such damage, terminate this Lease by giving notice of termination
to the other and specifying in such notice the effective date of such
termination, which shall not be less than thirty (30) nor more than ninety (90)
days after the date of the notice. If this Lease is terminated pursuant to the
preceding sentence, all Base Rent and Additional Rent payable hereunder shall be
apportioned and paid to the date of such termination of this Lease, with respect
to the entire Premises. If this Lease is not so terminated, there shall be no
abatement of rent. Following any termination of this Lease as aforesaid, Tenant
shall have no further rights or remedies as against Landlord pursuant to this
Lease or otherwise. If this Lease is not terminated as a result of such damage,
either pursuant to this Section or Section 10.3, this Lease shall continue in
full force and effect, Tenant shall repair and restore the Premises as provided
in this Section.
Notwithstanding the foregoing, if, during the Lease Term, the Premises or the
Building are totally or partially damaged or destroyed, and the damage or
destruction occurs during the last year of the Lease Term, and Tenant has no
remaining Extension Options or does not exercise any remaining Extension
Options, at Tenant's election, subject to the approval of any Mortgagee, Tenant
may limit repair and restoration to the repair and restoration necessary to
preserve the remaining improvements and remedy any health or safety hazards, and
Tenant shall not be obligated to further repair or restore the Premises, so long
as the casualty is caused by a risk insured against under Section 3.2.2 above,
Tenant has permitted Landlord to participate equally in the settlement with the
insurer and has paid Landlord the amount of any deductible, Tenant has not
expended more than a reasonable amount on securing the balance of the Premises
and remedying health or safety hazards, and the balance of insurance proceeds
are paid to Landlord.
10.2 TENANT'S PERSONAL PROPERTY. If, during the Lease Term, the Premises or
the Buildings are totally or partially damaged or destroyed, and this Lease is
not terminated as provided in Section 10.1, Tenant shall, at its sole cost and
expense, promptly and diligently repair or restore any trade fixtures,
furnishings, equipment or personal property belonging to Tenant.
10.3 RIGHT TO TERMINATE WITHIN LAST TWO YEARS OF LEASE TERM. Notwithstanding
anything to the contrary contained herein, if, within the last two years of the
Lease Term, the Building is damaged or destroyed due to a risk insured against
under Subsection 3.2.2 above to such an extent that the costs of repairing and
restoring such Building as reasonably estimated by Landlord would equal the
replacement cost of the Building, Landlord or Tenant may, within forty-five (45)
days after the occurrence of such damage, terminate this Lease by giving notice
of termination to the other and specifying in such notice the effective date of
such termination, which shall not be less than thirty (30) nor more than ninety
(90) days after the date of the notice; provided, however, that if Landlord
gives Tenant such a termination notice, and Tenant has not exercised both of the
Extension Options provided for by Section 2.4, the period for Tenant to exercise
the next upcoming Extension Option shall be extended, if necessary, to commence
on the date Tenant receives Landlord's termination notice, and if Tenant
exercises the Extension Option within thirty (30) days after receiving
Landlord's termination notice, the termination notice shall be of no force and
effect. If this Lease is so terminated pursuant to this Section 10.3, the
provisions of Section 10.1 regarding termination of this Lease shall apply. This
right of termination shall be in addition to any other right of termination
provided in this Lease.
10.4 RESTORATION AS A RESULT OF MINOR LOSS. If, during the Lease Term, the
Premises or the Building is partially damaged or destroyed by a risk covered by
the insurance described in Subsection 3.2.2, and the total amount of loss does
not exceed $50,000 (adjusted to reflect any increase or decrease in the CPI from
the date of this Lease), subject to the consent of any Mortgagee, Tenant shall
make the loss, and adjustment with the insurance company insuring the loss, and
the proceeds shall be paid directly to Tenant for the sole purpose of repairing
and restoring the Premises in accordance with Section 10.1.
10.5 RESTORATION IN THE EVENT OF MAJOR DAMAGE. If, during the Lease Term, the
Premises or the Building is totally or partially damaged or destroyed by a risk
covered by the insurance described in Subsection 3.2.2, and the total amount of
loss is $50,000 or more (adjusted to reflect any increase or decrease in the CPI
from the date of this Lease), Landlord, Tenant and any first Mortgagee shall
make the loss adjustment with the insurance company insuring the loss, and on
receipt of the proceeds shall immediately pay them to the holder of any first
Mortgage on the Premises, or, if there is then no first Mortgage on the
Premises, an institutional lender doing business in Boston designated by
Landlord in its reasonable discretion (such payee, the "INSURANCE TRUSTEE").
Tenant also shall deposit the amount of any deductible with the Insurance
Trustee. The sums deposited with the Insurance Trustee shall be paid in
installments by the Insurance Trustee to the contractor retained by Tenant as
construction progresses, for payment of the costs of restoration. A customary
retention fund shall be established that will be paid to the contractor upon
completion of restoration, payment of all costs, expiration of all applicable
lien periods, and proof the Premises are free of all mechanics' liens and
lienable claims.
Payments shall be made on presentation of certificates or vouchers from the
architect or engineer retained by Tenant showing the amount due. If the
Insurance Trustee, in its reasonable discretion, determines that the
certificates or vouchers are being improperly approved by the architect or
engineer retained by Tenant, the Insurance Trustee shall have the right to
appoint an architect or engineer to supervise construction and to make payments
on certificates or vouchers approved by the architect or engineer retained by
the Insurance Trustee. The reasonable expenses and charges of the architect or
engineer retained by the Insurance Trustee shall be paid by the Insurance
Trustee out of the funds deposited with the Insurance Trustee.
If the sums held by the Insurance Trustee are not sufficient to pay the
actual cost of restoration, Tenant shall deposit the amount of the deficiency
with the Insurance Trustee within twenty (20) days after request by the
Insurance Trustee indicating the amount of the deficiency from time to time.
Any sums not disbursed by the Insurance Trustee after restoration has been
completed and final payment has been made to Tenant's contractor shall be
delivered within fifteen (15) days (after demand made by either party on the
Insurance Trustee, with a copy to Landlord's first Mortgagee), by the Insurance
Trustee to Tenant, unless Landlord's first Mortgagee requires such sums to be
paid to Landlord's first Mortgagee to reduce the amount secured. In that event,
the Insurance Trustee shall pay the amount required to be paid to Landlord's
first Mortgagee, and the remainder, if any, to Tenant. All actual costs and
charges of the Insurance Trustee shall be paid by Tenant. If the Insurance
Trustee resigns or for any reason is unwilling to act or continue to act,
Landlord shall substitute a new trustee in the place of the designated Insurance
Trustee. The new trustee must be an institutional lender doing business in
Boston. Both parties shall promptly execute all documents and perform all acts
reasonably required by the Insurance Trustee to perform its obligations under
this Section 10.5.
10.6 INSURANCE UPON TERMINATION. In the event that this Lease is terminated
as a result of any damage or destruction, any applicable insurance policy and
all rights under it and all insurance proceeds shall be assigned and paid to
Landlord or, at Landlord's election, the holder of a first Mortgage on the
Premises, excluding, however, any proceeds payable with respect to Tenant's
personal property or trade fixtures.
ARTICLE XI - CONDEMNATION
11.1 TAKING. If the whole or a substantial part of the Premises (as
hereinafter defined) shall be taken or condemned by any governmental or
quasi-governmental authority for any public or quasi-public use or purpose
(including a sale thereof under threat of such a taking), then this Lease shall
terminate on the date title thereto vests in such governmental or
quasi-governmental authority, and all Base Rent and Additional Rent payable
hereunder shall be apportioned as of such date. If less than a substantial part
of the Premises is taken or condemned by any governmental or quasi-governmental
authority for any public or quasi-public use or purpose (including a sale
thereof in lieu of such a taking), this Lease shall continue in full force and
effect, but the Base Rent thereafter payable hereunder shall be equitably
adjusted as of the date title vests in the governmental or quasi-governmental
authority.
For purposes of this Section 11.1, a "SUBSTANTIAL PART OF THE PREMISES" shall
be considered to have been taken if there occurs a taking of more (a) than
one-third of the usable floor area of the Building, or (b) more than one-third
of the parking spaces, if alternate parking spaces sufficient to preserve at
least two-thirds of the number of existing parking spaces cannot be located on
the Premises.
11.2 AWARDS. All awards, damages and other compensation paid by the
condemning authority on account of such taking or condemnation (or sale under
threat of such a taking) shall belong to Landlord; Tenant hereby releases and
assigns to Landlord all Tenant's rights to such awards, damages and other
compensation, and covenants to deliver such further assignments and assurances
thereof as Landlord may from time to time reasonably request. Tenant agrees not
to make any claim against Landlord or the condemning authority for any portion
of such award or compensation attributable to damages to the Premises, the value
of the unexpired term of this Lease, the loss of profits or goodwill, leasehold
improvements or severance damages. Nothing contained herein, however, shall
prevent Tenant from pursuing a separate claim against the condemning authority
for the value of furnishings, equipment and trade fixtures installed in the
Premises at Tenant's expense (but excluding any component of Tenant's Work and
Improvements made to the Premises) and for relocation expenses, provided that
such claim does not in any way diminish the award or compensation payable to or
recoverable by Landlord in connection with such taking or condemnation.
ARTICLE XII - DEFAULT BY TENANT; REMEDIES
12.1 DEFAULT. The occurrence of any of the following (whether or not the
Lease Term shall have commenced) shall constitute an Event of Default under this
Lease:
(a) if Tenant shall fail to pay when due any installment of Base
Rent or Additional Rent; provided, however, that any such failure shall not
constitute an Event of Default under this Lease so long as such failure shall
not continue for more than ten (10) days after written notice from Landlord to
Tenant; or
(b) if Tenant shall violate or fail to perform any other term,
condition, covenant or agreement to be performed or observed by Tenant under
this Lease and such violation or failure shall continue for more than thirty
(30) days after written notice thereof from Landlord plus such additional time,
if any, as is reasonably necessary to cure the default if it is of such a nature
that it cannot reasonably be cured in thirty (30) days, which additional time
may not exceed ninety (90) days, provided Tenant is diligently proceeding to
cure such default at all times; provided, however, that if the violation or
failure is a failure to repair or reconstruct the Premises, and Tenant is
prevented from completing the cure within ninety (90) days due to labor strikes,
shortages of materials beyond the reasonable control of Tenant, changes in legal
requirements or an Act of God, Tenant shall have such further period of time to
cure the default as is necessary as a result of the labor strike or materials
shortage; or
(c) if Tenant shall commence any case, proceeding or other action
seeking reorganization, arrangement, adjustment, liquidation, dissolution or
composition of Tenant or any of its debts under any law relating to bankruptcy,
insolvency, reorganization, liquidation or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for
Tenant or for all or any substantial part of its property; or
(d) if any case, proceeding or other action against Tenant shall be
commenced seeking to have an order for relief entered against Tenant as debtor,
or seeking reorganization, arrangement, adjustment, liquidation, dissolution or
composition of Tenant or any of its debts under any law relating to bankruptcy,
insolvency, reorganization, liquidation or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for
Tenant or for all or any substantial part of its property, and such case,
proceeding or other action (i) results in the entry of an order for relief
against Tenant or (ii) remains undismissed for a period of ninety (90) days.
12.2 LANDLORD'S RIGHT TO TERMINATE. If an Event of Default should occur,
then, in any such case, Landlord may, at any time while such Event of Default
exists and without further notice, terminate this Lease by written notice to
Tenant, specifying a date on which this Lease shall terminate, and this Lease
shall thereupon come to an end on the date specified therein as fully and
completely as if such date were the date herein originally fixed for the
expiration of the Lease Term, and Tenant shall then quit and surrender the
Premises to Landlord, it being understood, however, that Tenant shall remain
liable as hereinafter provided. At any time after termination of this Lease
pursuant to this Section 12.2 Landlord, without notice to Tenant, may store
Tenant's removable fixtures, equipment and personal property, and those of any
person claiming through or under Tenant, at the expense and risk of Tenant, and,
if Landlord so elects, may sell such effects at public auction or private sale
and apply the net proceeds to the payment of all sums due to Landlord from
Tenant, if any, and pay over the balance, if any, to Tenant.
12.3 RENT RESERVED. If this Lease is terminated under any of the provisions
contained in Sections 12.1 and 12.2 or shall be otherwise terminated for breach
of any obligation of Tenant, Tenant covenants to pay forthwith to Landlord, as
compensation, the excess of the total Base Rent and Additional Rent reserved for
the residue of the Lease Term, together with the value of all other
considerations agreed to be paid or performed by Tenant for said residue, over
the rental value of the Premises for said residue of the Lease Term. Tenant
further covenants as an additional and cumulative obligation after any such
ending to pay punctually to Landlord all the sums and perform all the
obligations which Tenant covenants in this Lease to pay and to perform in the
same manner and to the same extent and at the same time as if this Lease had not
been terminated. In calculating the amounts to be paid by Tenant under the next
foregoing covenant, Tenant shall be credited with any amount paid to Landlord as
compensation as in this Section 12.3 provided and also with the net proceeds of
any rent obtained by Landlord by reletting the Premises, after deducting all
Landlord's expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, fees for legal
services and expenses of preparing the Premises for such reletting; it being
agreed by Tenant that Landlord (a) may relet the Premises or any part or parts
thereof, for a term or terms which may, at Landlord's option, be equal to, less
than or exceed the period which would otherwise have constituted the balance of
the Lease Term and may grant such concessions and free rent as Landlord in its
sole discretion considers advisable or necessary to relet the same and (b) may
make such alterations, repairs and decorations in the Premises as Landlord in
its sole discretion considers advisable or necessary to relet the same, and no
action of Landlord in accordance with the foregoing or its failure to relet or
to collect rent under reletting shall operate or be construed to release or
reduce Tenant's liability as aforesaid.
In lieu of any other damages for Tenant's breach and in lieu of full recovery
by Landlord of all sums payable under all the foregoing provisions of this
Section 12.3, Landlord may, by notice to Tenant given at any time after this
Lease is terminated under any of the provisions contained in Sections 12.1 or
12.2 or is otherwise terminated for breach of any obligation of Tenant, and
before such full recovery, elect to recover, and Tenant shall thereupon pay, as
liquidated damages, (i) an amount equal to the aggregate of the Base Rent and
Additional Rent with respect to the 24 month period ended next prior to such
termination (or if an Event of Default occurs during the first two Lease Years,
an amount equal to the aggregate of an annualized amount of Base Rent and
Additional Rent accrued under this Lease in the first Lease Year) plus the
amount of Base Rent and Additional Rent of any kind accrued and unpaid at the
time of termination, (ii) less the amount of any recovery by Landlord under the
foregoing provisions of this Section 12.3 up to the time of payment of such
liquidated damages.
12.4 BANKRUPTCY PROVISIONS.
12.4.1 If Tenant shall become a debtor under Chapter 7 of the Bankruptcy
Code and Tenant's trustee or Tenant shall elect to assume this Lease for the
purpose of assigning the same or otherwise, such election and assignment may
be made only if all of the provisions of Subsections 12.4.1 and 12.4.4 of
this Section 12.4 are satisfied. If Tenant or Tenant's trustee shall fail to
elect to assume this Lease within sixty (60) days after the filing of a
petition, or such additional time as provided by the court within such 60-day
period, this Lease shall be deemed to have been rejected. Immediately
thereupon, Landlord shall be entitled to possession of the Premises without
further obligation to Tenant or Tenant's trustee and this Lease shall
terminate, but Landlord's right to be compensated for damages (including,
without limitation, damages pursuant to Article XII), in any such proceeding
shall survive.
12.4.2 If a petition for reorganization or adjustment of debts is filed
concerning Tenant under Chapter 11 of the Bankruptcy Code, or a proceeding is
filed under Chapter 7 of the Bankruptcy Code and is transferred to Chapter
11, Tenant's trustee or Tenant, as debtor-in-possession, must elect to assume
this Lease within the earlier of (i) confirmation of the plan and (ii) one
hundred twenty (120) days from the date of the filing of the petition under
Chapter 11 or such transfer thereto or Tenant's trustee or Tenant, as
debtor-in-possession, shall be deemed to have rejected this Lease. If
Tenant's trustee or Tenant, as debtor-in-possession, has failed to perform
all of Tenant's obligations under this Lease within the time periods
(excluding grace periods) required for such performance, no election by
Tenant's trustee or by Tenant, as debtor-in-possession, to assume this Lease,
whether under Chapter 7 or Chapter 11, shall be effective unless each of the
following conditions has been satisfied:
(a) Tenant's trustee or Tenant, as debtor-in-possession, has cured,
or has provided Landlord with Assurance (hereinafter defined)
that it will cure (i) all monetary defaults under this Lease
within ten (10) days from the date of such assumption, and (ii)
all nonmonetary defaults under this Lease within thirty (30) days
from the date of such assumption; and
(b) Tenant's trustee or Tenant, as debtor-in-possession , has
provided Landlord with Assurance (as hereinafter defined) of
the future performance of each of the obligations under this
Lease of Tenant, Tenant's trustee or Tenant, as
debtor-in-possession, and has (i) deposited with Landlord, as
security for the timely payment of rent hereunder, an amount
equal to one annual installment of Annual Base Rent which
Tenant was obligated to pay to Landlord under this Lease
during the Lease Year in which such default occurred, and (ii)
paid in advance to Landlord Tenant's annual obligations for
Additional Rent and all other monetary charges payable by
Tenant under this Lease. The obligations imposed upon
Tenant's trustee or Tenant, as debtor-in-possession, shall
continue with respect to Tenant or any assignee of Tenant's
interests in this Lease after the completion of bankruptcy
proceedings.
For purposes of this Subsection 12.4.2, Landlord and Tenant acknowledge that
"Assurance" shall mean no less than: (i) Tenant's trustee or Tenant, as
debtor-in-possession , has and will continue to have sufficient unencumbered
assets after the payment of all secured obligations and administration
expenses to assure Landlord that sufficient funds will be available to
fulfill the obligations of Tenant under this Lease, and (ii) the Bankruptcy
Court shall have entered an order segregating sufficient cash payment to
Landlord, or Tenant's trustee or Tenant, as debtor-in-possession, or shall
have granted a valid and perfected first lien and security interest and
mortgage in property of Tenant, acceptable as to value and kind to Landlord,
to secure to Landlord the obligation of Tenant's trustee or Tenant, as
debtor-in-possession, to cure defaults under this Lease, both monetary and
nonmonetary, within the time period set forth above.
12.4.3 If this Lease is assumed in accordance with the provisions of
Subsection 12.4.2 and thereafter Tenant is liquidated or files or has filed
against it a subsequent petition for reorganization or adjustment of debts
under Chapter 11 of the Bankruptcy Code, Landlord may, at it's option,
terminate this Lease and all rights of Tenant hereunder, by giving Tenant
notice of its election to so terminate within thirty (30) days after the
occurrence of either of such events.
12.4.4 If Tenant's trustee or Tenant, as debtor-in-possession, has assumed
this Lease pursuant to the terms and provisions of Subsections 12.4.1 and
12.4.2 of this Article for the purpose of assigning (or elects to assign)
this Lease, this Lease may be so assigned only if the proposed assignee has
provided adequate assurance of future performance of all of the terms,
covenants and conditions of this Lease to be performed by Tenant. Landlord
shall be entitled to receive all cash proceeds of any such assignment. As
used herein, "adequate assurance of future performance" shall mean that all
of the following conditions have been satisfied:
(a) the proposed assignee has furnished Landlord with either (i) a
current financial statement audited by a certified public
accountant indicating a net worth and working capital in
amounts which Landlord reasonably determines to be sufficient
to assure the future performance by such assignee of Tenant's
obligations under this Lease, or (ii) a guaranty or guaranties
in form and substance satisfactory to Landlord from one or
more persons or entities with aggregate net worth which
Landlord reasonably determines to be sufficient to assure the
future performance by such assignee of Tenant's obligations
under this Lease; and
(b) Landlord has obtained all consents or waivers from others
required under any lease, mortgage, financing agreement or other
agreement by which Landlord is bound to permit Landlord to
consent to such assignment.
12.4.5 When, pursuant to the Bankruptcy Code, Tenant's trustee or Tenant;
as debtor-in-possession, shall be obliged to pay reasonable use and occupancy
charges for the use of the Premises, such charges shall not be less than the
Annual Base Rent which Tenant is obligated to pay to Landlord under this
Lease, plus all additional Rent and all other monetary charges payable by
Tenant under this Lease.
12.4.6 Neither the whole nor any portion of Tenant's interest in this
Lease or its estate in the Premises shall pass to any United States trustee,
receiver, assignee for the benefit of creditors, or any other person or
entity, or otherwise by operation of law under the laws of any state having
jurisdiction of the person of property of Tenant, unless Landlord shall have
consented to such transfer in writing. No acceptance by Landlord of rent or
any other payments from any United States trustee, receiver, assignee, person
or other entity shall be deemed to constitute such consent by Landlord, nor
shall it be deemed a waiver of Landlord's right to terminate this Lease for
any transfer of Tenant's interest under this Lease without such consent.
12.5 CUMULATIVE REMEDIES. All rights and remedies of Landlord and Tenant set
forth herein are in addition to all other rights and remedies available at law
or in equity. All rights and remedies available hereunder or at law or in equity
are expressly declared to be cumulative. The exercise by Landlord or Tenant of
any such right or remedy shall not prevent the concurrent exercise of any other
right or remedy hereunder or subsequent exercise of the same or any other right
or remedy. No delay in the enforcement or exercise of any such right or remedy
shall constitute a waiver of any default or Event of Default hereunder or of any
of Landlord's or Tenant's rights or remedies in connection therewith. Landlord
or Tenant shall not be deemed to have waived any default or Event of Default
hereunder unless such waiver is set forth in a written instrument. If Landlord
or Tenant waives in writing any default or Event of Default, such waiver shall
not be construed as a waiver of any covenant, condition or agreement set forth
in this Lease except as to the specific circumstances described in such written
waiver.
12.6 NO WAIVER. No waiver of any provision of this Lease shall be implied by
any failure of Landlord or Tenant to enforce any remedy on account of the
violation of such provision, even if such violation be continued or repeated
subsequently. Neither the payment by Tenant of a lesser amount than the
installments of Base Rent, or Additional Rent nor any endorsement or statement
on any check or letter accompanying a check for payment of Rent shall be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such Rent or to
pursue any other remedy available to Landlord. No re-entry by Landlord, and no
acceptance by Landlord of keys from Tenant, shall be considered an acceptance of
a surrender of this Lease.
12.7 LANDLORD'S RIGHT TO SELF-HELP. If Tenant defaults in the making of any
payment or in the doing of any act herein required to be made or done by Tenant,
then Landlord may, following thirty (30) days prior written notice or such
shorter period as may be necessary in the event of an emergency (which shall
include, but not be limited to, the imminent lapse of any insurance policy
required to be carried by Tenant under this Lease), but shall not be required
to, make such payment or do such act. If Landlord elects to make such payment or
do such act, all costs and expenses incurred by Landlord, plus interest thereon
at the Rent Default Rate, from the date paid by Landlord to the date of payment
thereof by Tenant, shall be immediately paid by Tenant to Landlord as Additional
Rent. Landlord may, but is under no obligation to, apply any monies held by
Landlord for Tenant's account, including, without limitation, the Security
Deposit, in exercising its rights under this Section 12.7. The taking of any
action by Landlord under this Section 12.7 shall not be considered as a cure of
such default by Tenant or prevent Landlord from pursuing any remedy it is
otherwise entitled to in connection with such default.
12.8 LATE CHARGE. If Tenant fails to make any payment of Base Rent or any
Additional Rent on or before the date ten (10) days after written notice from
Landlord that such payment is due and payable, a late charge of four percent
(4%) of the amount of such payment shall then be due and payable from Tenant to
Landlord as Additional Rent. Notwithstanding the foregoing, in the event that
Tenant fails to make any payment of Base Rent or any Additional Rent on or
before the date ten (10) days after such payment is due and payable two times or
more in any twelve month period, thereafter the late charge provided for by this
Section shall be due and payable on any payment of Base Rent or any Additional
Rent not paid on or before the date ten (10) days after such payment is due and
payable. The late charge provided for by this Section is in addition to and not
in lieu of any interest payable at the Rent Default Rate provided for by Section
3.1.
ARTICLE XIII - HOLDING OVER
In the event that Tenant shall not immediately surrender the Premises on the
date of the expiration of the Lease Term or the sooner termination of this
Lease, Tenant shall, at Landlord's election exercised by giving notice to Tenant
as described in the next following paragraph of this Article XIII, become a
month-to-month tenant and shall be obligated to pay monthly installments of Base
Rent and Additional Rent in an amount equal to one hundred fifty percent (150%)
times the sum of the installment of Base Rent and Additional Rent payable during
the last full calendar month of the Lease Term.
If Landlord shall not have elected to make Tenant a month-to-month tenant,
Landlord may, at any time prior to Landlord's giving notice to Tenant that
Tenant has become a month-to-month tenant pursuant to the terms of this Article
XIII, Landlord may exercise any and all rights and remedies under this Lease, at
law or in equity to re-enter and take possession of the Premises. Until Tenant
shall have either been evicted from the Premises or made a month-to-month tenant
as aforesaid, Tenant shall be a tenant-at-will, subject to all the terms,
conditions, covenants and agreements of this Lease which would have applied in
the case of a month-to-month tenancy except Tenant's monthly rental obligations
shall be prorated on a daily basis. Nothing herein contained is intended to
limit any rights of Landlord under Article XII or otherwise, including, without
limitation, Landlord's right to be indemnified against and reimbursed for, in
addition to all amounts otherwise required by the provisions of this Lease, the
amount of all loss, cost and damage incurred by Landlord as a result of any
holdover by Tenant, including, without limitation, all court and arbitration
costs, attorneys' fees and expenses and any other expenses of litigation or
arbitration plus any damages on account of inability to deliver possession of
the Premises to any successor tenant.
ARTICLE XIV - COVENANTS OF LANDLORD
14.1 QUIET ENJOYMENT. Landlord covenants that it has the right to make this
Lease for the Lease Term and that if Tenant shall pay all Rent when due and
punctually perform all the covenants, terms, conditions and agreements of this
Lease to be performed by Tenant, Tenant shall, during the Lease Term, freely,
peaceably and quietly occupy and enjoy the full possession of the Premises
without hindrance from anyone claiming by, through or under Landlord, subject to
all of the terms and provisions hereof.
ARTICLE XV - RIGHTS OF MORTGAGEE
15.1 DEFINITION OF MORTGAGE. The term "Mortgage" shall mean any one or more
mortgages, deeds of trust or ground lease interests which may now or hereafter
affect Landlord's interest in the Premises and all renewals, extensions,
supplements, amendments, modifications, consolidations, and replacements thereof
or thereto, substitutions therefor, and advances made thereunder.
15.2 LEASE SUBORDINATE-SUPERIOR. This Lease shall be subject and subordinate
to any Mortgage now or hereafter encumbering the Property or any portion
thereof, provided that the holder thereof enters into an agreement with Tenant
by the terms of which the holder will agree not to disturb the rights of Tenant
under this Lease and to accept Tenant as tenant of the Premises under the terms
and conditions of this Lease in the event of acquisition of the Premises by such
holder through foreclosure proceedings or otherwise. In the event that the
holder of a Mortgage (a "Mortgagee") or any purchaser at a foreclosure sale or
otherwise (a "Successor") shall succeed to the interest of Landlord, then Tenant
shall and does hereby agree to attorn to such Successor and to recognize such
Successor as its landlord. A Successor shall not, except to the extent consented
to in writing by itself or any predecessor Successor, be:
(a) liable for any act or omission of a prior landlord (including
Landlord); or
(b) subject to any offset or defenses which Tenant might have
against any prior landlord (including Landlord); or
(c) bound by any Rent which Tenant might have paid more than 30 days
in advance to any prior landlord (including Landlord) (except
that nothing in this Section 15.2 shall be deemed to relieve
Landlord of Landlord's obligation under Section 3.4); or
(d) bound by any agreement or modification of this Lease made
without the consent of the Successor; or
(e) liable for any fact or circumstance or condition to the extent
existing or arising prior to such Successor's succession to the
interest of Landlord under this Lease and such Successor further
shall not be liable except during the period of time, if any,
during which such Successor is the owner of Landlord's interest
in the Building and in any event only to the extent set forth in
Section 9.3.
Any claim by Tenant under this Lease against a Successor shall be satisfied
solely out of such Successor's interest in the Property and Tenant shall not
seek recovery against or out of any other assets of such Successor.
Notwithstanding the foregoing, the holder of a Mortgage may at its election
subordinate the same to this Lease without the consent or approval of Tenant.
Any such Mortgage to which this Lease shall be subordinate may contain such
terms, provisions and conditions as the holder reasonably deems usual or
customary.
This Section 15.2 shall be self-operative. Tenant agrees to execute and
deliver promptly any appropriate instruments requested by Landlord or the holder
of any Mortgage to carry out the subordination, nondisturbance and attornment
agreements contained in this Section 15.2. Nothing in this Section 15.2 shall be
deemed to relieve Landlord of Landlord's obligation under Section 3.4.
ARTICLE XVI - GENERAL PROVISIONS
16.1 NO REPRESENTATIONS; NO MORTGAGE. Tenant acknowledges that neither
Landlord nor any broker, agent or employee of Landlord has made any
representations or promises with respect to the Premises or the Building except
as herein expressly set forth, and no rights, privileges, easements or licenses
are being acquired by Tenant, except as herein expressly set forth. Landlord
hereby represents and warrants to Tenant that as of the date of this Lease the
Premises is not encumbered by any Mortgages.
16.2 NO PARTNERSHIP OR JOINT VENTURE. Nothing contained in this Lease shall
be construed as creating a partnership or joint venture of or between Landlord
and Tenant, or to create any other relationship between the parties hereto other
than that of landlord and tenant.
16.3 BROKERAGE. Landlord and Tenant each represent and warrant to the other
that neither of them has employed or dealt with any broker, agent or finder
other than Karen Carr and Ernest Barrueta of Peter Elliot, LLC (the "Broker") in
carrying on the negotiations relating to this Lease. Tenant shall indemnify and
hold Landlord harmless from and against any claim or claims for brokerage or
other commissions asserted by any broker, agent or finder (other than the
Broker) engaged by Tenant or with whom Tenant has dealt. Similarly, Landlord
shall indemnify and hold Tenant harmless from and against any claims asserted by
any broker, agent or finder engaged by Landlord or with whom Landlord has dealt.
The representations and warranties contained in this Section 16.3 shall survive
any termination of this Lease. As between Tenant and Landlord, Landlord shall be
responsible to pay any brokerage commission that may be due to the Broker in
connection with the transactions described herein.
16.4 ESTOPPEL CERTIFICATE. Tenant shall, at any time and from time to time,
upon not less than ten (10) days prior written notice by Landlord, execute,
acknowledge and deliver to Landlord an estoppel certificate containing such
statements of fact as Landlord reasonably requests. Landlord shall, at any time
and from time to time during the Lease Term, upon not less than ten (10) days
prior written notice by Tenant, execute, acknowledge and deliver to Tenant an
estoppel certificate (i) stating that this Lease is unmodified and in full force
and effect, or so stating and specifying any modifications or exceptions; (ii)
stating whether or not Tenant is delinquent or in default with respect to any
payment of Base Rent; (iii) stating, to Landlord's actual knowledge, whether
Tenant is in default with respect to payment of any Additional Rent or any other
sum under this Lease; and (iv) stating the amount of the Security Deposit then
held by Landlord.
16.5 COST OF ENFORCEMENT. Landlord and Tenant shall each pay all reasonable
costs and counsel and other fees incurred by the other in connection with the
successful enforcement by the other from time to time of any obligation under
this Lease.
16.6 NOTICE. All notices or other communications required hereunder shall be
in writing and shall be deemed duly given if delivered in person (with receipt
therefor), 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:
To Tenant: Avid Technology, Inc.
One Park West
Tewksbury, MA 01876
Attention: General Counsel
with a copy to: Hale and Dorr
60 State Street
Boston, MA 02109
Attention: Katharine E. Bachman, Esq.
To Landlord: MGI One Park West, Inc.
c/o MGI Properties
30 Rowes Wharf
Boston, MA 02110
Attention: Robert Ware, Executive Vice President
with a copy to: Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attention: Michael H. Glazer, P.C.
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.
16.7 PARTIAL INVALIDITY. If any provision of this Lease or the application
thereof to any person or circumstances shall to any extent be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each provision of this Lease
shall be valid and enforced to the fullest extent permitted by law.
16.8 GENDER. Feminine or neuter pronouns shall be substituted for those of
the masculine form, and the plural shall be substituted for the singular number,
in any place or places herein in which the context may require such
substitution.
16.9 BIND AND INURE. The provisions of this Lease shall be binding upon, and
shall inure to the benefit of, the parties hereto and each of their respective
successors and assigns, subject to the provisions hereof restricting assignment
or subletting by Tenant.
16.10 ENTIRE AGREEMENT. This Lease contains and embodies the entire agreement
of the parties hereto with respect to Tenant's leasehold estate hereunder and
supersedes all prior agreements, negotiations and discussions between the
parties hereto and any representation, inducement or agreement that is not
contained in this Lease shall not be of any force or effect. This Lease may not
be modified or changed in whole or in part in any manner other than by an
instrument in writing duly signed by both parties hereto.
16.11 APPLICABLE LAW. This Lease shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
16.12 HEADINGS. Article, Section and Subsection headings are used herein for
the convenience of reference and shall not be considered when construing or
interpreting this Lease. Any reference to an Article shall be deemed to include
all Sections and Subsections in the Article, and any reference to a Section
shall be deemed to include all Subsections in the Section. All references to
"hereunder," "herein" or similar terms shall be deemed to be references to this
entire Lease, unless the context clearly otherwise requires.
16.13 NOT AN OFFER. 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.
16.14 TIME IS OF THE ESSENCE. Time is of the essence of each provision
of this Lease.
16.15 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.
16.16 NOTICE OF LEASE. This Lease shall not be recorded. Upon the request of
either party, the parties shall execute, in recordable form, a Notice of this
Lease. If this Lease is terminated before the Lease Term expires, or without
Tenant exercising one or both of its Extension Options, upon the request of
either party, the parties shall execute, in recordable form, an instrument
acknowledging the date of termination. Recordation costs shall be paid by the
requesting party. The provisions of this Section shall survive expiration or
earlier termination of this Lease.
16.17 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.
16.18 FUTURE DEVELOPMENT. Landlord and Tenant acknowledge that Tenant in the
future may wish to expand the amount of building space available on the Land.
Tenant acknowledges that, except as otherwise expressly provided in this Section
16.18, any further development on the Land is subject to all of the other terms
and conditions of this Lease, including, but not limited to, Landlord's prior
written consent pursuant to Subsection 4.3.2 regarding alterations and
additions. Landlord makes no representations or warranties whatsoever with
regard to the ability to expand the amount of building space available on the
Land; without limiting the generality of the foregoing, Landlord makes no
representations or warranties as to whether the physical conditions of the Land
will support further development, whether further development is permitted
pursuant to applicable Legal Requirements, or whether further development is or
is not possible for any other reason.
If Tenant wishes to expand the amount of building space available on the
Land, Tenant shall so notify Landlord and provide Landlord with sufficiently
detailed information to enable Landlord to determine whether to approve or
disapprove the new development to the extent hereinafter provided and whether
Landlord wishes to develop and/or finance the additional space or not. Tenant
and Tenant's representatives shall meet and confer with Landlord and Landlord's
representatives as may be reasonably necessary for Landlord to become fully
informed regarding the new development desired by Tenant.
So long as there is no outstanding Event of Default, Landlord's consent to a
new building in the area heretofore discussed for that purpose by Landlord and
Tenant, and
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generally indicated on EXHIBIT E attached hereto and by this reference made a
part hereof, shall not be unreasonably withheld or delayed, so long as the new
building (x) is readily adaptable to normal office, research and development or
light manufacturing use upon expiration of the term of the Lease, (y) does not
adversely affect the value of the Premises, and (z) will be completed no later
than three years prior to the expiration of the Initial Term or any Extended
Term as to which Tenant has duly and validly exercised Tenant's Expansion
Option; but Landlord's consent may be withheld in Landlord's sole discretion as
to any expansion of any existing Building or any expansion of any new building.
If Tenant expands the amount of building space available on the Land,
Landlord may, but shall be under no obligation whatsoever to, (x) develop the
new space on behalf of Tenant, or (y) finance construction of the additional
space. Construction of any additional space shall be subject to all of the
requirements of Article VI with respect to Tenant's Work, including, but not
limited to, those with respect to approval of plans, except that if Landlord
does not finance the construction, the requirements with respect to requisitions
of Tenant's Allowance shall not apply. If Landlord agrees to finance Tenant's
new building or expansion, Landlord's financing shall be funded on a similar
basis to that provided in Article VI.
If Tenant expands the amount of building space available on the Land, at any
time prior to but no later than the commencement of work on the Premises, Tenant
and Landlord shall enter into an amendment to this Lease reflecting the addition
of the new building space to the Premises. Landlord acknowledges that the rental
for the new building space will not include a component for the Land, since the
Base Rent already includes the Land.
16.19 EXHIBITS. This Lease includes and incorporates all Exhibits
referred to hereby and attached hereto.
EXECUTED under seal as of the date and year first set forth above.
LANDLORD:
MGI ONE PARK WEST, INC.
By: /S/ ROBERT WARE
Name: Robert Ware
Title: Executive Vice President
TENANT:
AVID TECHNOLOGY, INC.
By: /S/ C. EDWARD HAZEN
Name: C. Edward Hazen
Title: Treasurer
EXHIBIT A - LEGAL DESCRIPTION OF LAND
That certain parcel of registered land with the buildings thereon situated in
Tewksbury, Middlesex County, Massachusetts, all more particularly shown as Lot
330 on Land Court Plan No. 27170-15 to which reference may be made for a more
particular description and in deed to Landlord from Metropolitan Life Insurance
Company dated March 6, 1996 and filed with the Middlesex North Registry District
of the Land Court as Document No. 163228.
EXHIBIT B - BROKERS' DETERMINATION OF PREVAILING MARKET RENT
Where in the Lease to which this Exhibit is attached provision is made for
the "Brokers' Determination" the following procedures and requirements shall
apply:
1. REQUEST. The party initiating the Brokers' Determination (the
"Initiating Party") shall send a notice to the other party (the
"Other Party") requesting the Brokers' Determination of the
Prevailing Market Rent, which notice to be effective must (i)
make explicit reference to the Lease, and (ii) include the name
of a broker selected by the Initiating Party to act for the
Initiating Party, which broker shall be affiliated with a major
Boston commercial real estate brokerage firm selected by the
Initiating Party and which broker shall have at least ten (10)
years experience dealing in properties of a nature and type
generally similar to the Buildings located in the Boston Suburban
Market.
2. RESPONSE. Within thirty (30) days after the Other Party's receipt of
the Initiating Party's notice requesting the Broker Determination
and stating the name of the broker selected by the Initiating Party,
the Other Party shall give written notice to the Initiating Party of
the Other Party's selection of a broker having at least the
affiliation and experience referred to above.
3. RENTAL VALUE DETERMINATION. Within thirty (30) days after the
selection of the broker by the Other Party, the brokers so
selected shall make a determination of the annual fair market
rental value of the Premises for the period referred to in the
Lease. Such annual fair market rental value determination shall
take into account the condition of the Premises as required to be
maintained in accordance with this Lease and the market rental
rate for the time period such determination is being made for
space in buildings of comparable condition and of equivalent
quality, size, utility and location. The brokers shall advise
Landlord and Tenant in writing by the expiration of said thirty
(30) day period of the annual fair market rental value which as
so determined shall be referred to as the Prevailing Market Rent.
4. RESOLUTION OF BROKER DEADLOCK. If the Brokers are unable to
agree on a determination of Prevailing Market Rent, then the
brokers shall send a notice to Landlord and Tenant by the end of
the thirty (30) day period for making said determination setting
forth their individual determinations of Prevailing Market Rent.
The Brokers then shall, within ten (10) days after such thirty
(30) day period expires, jointly appoint an independent real
estate broker or a consultant who also has at least the
affiliation and experience referred to above and is not
affiliated with either Landlord or Tenant (the "Arbiter"). The
Brokers shall submit to the Arbiter their respective assessments
of the Prevailing Market Rent, together with the supporting data
that was used to calculate such assessments. Within twenty (20)
days after the selection of the Arbiter, the Arbiter shall select
the assessment which is closest to his/her determination of such
Prevailing Market Rent, which assessment shall be the Base Rent
for such Extended Term. The Arbiter's determination shall be
binding on Landlord and Tenant and may be enforced by a court of
competent jurisdiction.
5. COSTS. Each party shall pay the costs and expenses of the broker
selected by it and each shall pay one half (1/2) of the costs and
expenses of the Arbiter.
6. FAILURE TO SELECT BROKER OR FAILURE OF BROKER TO SERVE. If the
Initiating Party shall have requested a Broker Determination and
the Other Party shall not have designated a broker within the
time period provided therefor above, then the Initiating Party's
Broker shall alone make the determination of Prevailing Market
Rent in writing to the Other Party and the Initiating Party
within thirty (30) days after the expiration of the Other Party's
right to designate a broker hereunder. In case of the inability
or refusal to serve of any person designated as a broker, or in
case any broker for any reason ceases to be such, a broker to
fill such vacancy shall be appointed by Tenant, Landlord, the
brokers first appointed or the said Greater Boston Real Estate
Board, Inc., as the case may be, whichever made the original
appointment, or if the person who made the original appointment
fails to fill such vacancy, upon application of any broker who
continues to act or by Landlord or Tenant such vacancy may be
filled by the President of the Greater Boston Real Estate Board,
Inc. or her/his designee, and any broker so appointed to fill
such vacancy shall have the same standing and powers as though
originally appointed.
EXHIBIT C - TENANT'S RIGHT OF FIRST OFFER
Tenant shall have a right of first offer with respect to the Premises on the
terms and conditions set forth in this Exhibit D (the "Right of First Offer").
If at any time during the Lease Term, Landlord decides to sell the Premises,
Landlord shall give Tenant notice (the "Landlord's Notice") of the sale price
(the "First Offer Price") and payment terms on which Landlord will be willing to
sell.
If Tenant, within three (3) weeks after the receipt of a Landlord's Notice,
agrees in writing to purchase the Premises for the First Offer Price on the
payment terms stated in the Landlord's Notice, Landlord and Tenant promptly
shall enter into a purchase and sale agreement acceptable to each in its
reasonable discretion and close the sale of the Premises not later than one
hundred twenty (120) days after the date of Tenant's notice to Landlord. If
Tenant fails to close the purchase within such one hundred twenty (120) day
period for any reason other than Landlord's default, the Right of First Offer
automatically shall terminate and be of no further force or effect, but this
Lease otherwise shall continue on all the other terms, covenants and conditions
set forth in this Lease.
If Tenant within two (2) weeks after the receipt of a Landlord's Notice, does
not so agree in writing, Landlord thereafter may sell the Premises to any other
party for a price which is not less than ninety percent (90%) of the First Offer
Price and payment terms that are not materially more favorable to the purchaser
than those set forth in the Landlord's Notice, free and clear of Tenant's Right
of First Offer, and upon the closing of the sale to the other party, Tenant's
Right of First Offer shall terminate and be of no further force or effect, but
this Lease otherwise shall continue on all the other terms, covenants and
conditions set forth in this Lease, and Tenant, upon request, shall provide to
Landlord written confirmation duly executed in recordable form that confirms
that Tenant's Right of First Offer does not apply to the sale and terminates
upon closing of the sale; but if Landlord determines to sell the Premises for a
price which is less than ninety percent (90%) of the applicable First Offer
Price or on payment terms materially more favorable to the purchaser than those
set forth in the Landlord's Notice, or if Landlord has not sold the Premises to
another party within fifteen (15) months after Tenant receives a Landlord's
Notice, Landlord shall be obligated to give Tenant a new Landlord's Notice prior
to selling the Premises to another party, and Tenant's Right of First Offer
shall apply to the sale.
Landlord shall have the right to market the Premises to others prior to and
during the two-week period for Tenant to respond to a Landlord's Notice,
subject, however, to Tenant's Right of First Offer.
Tenant's Right of First Offer shall not apply to any mortgage, deed of trust,
ground lease or other financing of the Premises, to any transfer by foreclosure
sale or deed in lieu of foreclosure, to any transfer for nominal or no
consideration, to any transfer to a legal entity controlling, controlled by or
under common control with Landlord, or to any transfer among family members,
either outright or in trust.
EXHIBIT D - HAZARDOUS MATERIALS
Customary janitorial supplies
EXHIBIT E - LOCATION OF NEW BUILDING