Exhibit 10.3
NET LEASE
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 Section 1.1.
Date of
this Lease: August 12, 2002
Premises: approximately 103,538 rentable square feet consisting of the
entire 2/nd/ floor and portions of the 1/st/ and 3/rd/ floors
of the office building located at 290 Concord Road, Billerica,
MA, 01821(the "Building"), as more particularly shown on
Exhibit A attached hereto, together with such appurtenant
rights as provided in Section 2.2
Landlord: GetronicsWang Co., LLC a Delaware Limited Liability Company
Original Address
of Landlord: 290 Concord Road
Billerica, MA 01821
Attn: General Counsel
with a copy to:
290 Concord Road
Billerica, MA 01821
Attn: Director, Corporate Real Estate
Landlord's
Construction
Representative: John Romano
Tenant: Millipore Corporation, a Massachusetts Corporation
Original Address
of Tenant: 80 Ashby Road
Bedford, MA 01730
Attn: Patricia Davies, Corporate Director of Facilities and
HSE
With a copy to the same address to the attention of the
General Counsel
Tenant's Construction
Representative: Karen Gurnett
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Term: approximately 10 years and 3 months, beginning on the
Commencement Date and expiring November 30, 2012
Commencement Date: September 1, 2002, subject to the provisions of Section 2.3
Rent Commencement
Date: December 1, 2002, subject to the provisions of Section 2.3
Annual Fixed
Rent Rate: Annual Fixed Rent will be paid at the following Net rental
rate for each corresponding lease year as set forth below:
Years 1-5 103,538 sq. ft. x $13.00, or $1,345,994.00 per
year
Years 6-10 103,538 sq. ft. x $15.00, or $1,553,070.00 per
year
Tenant's Pro
Rata Share: 72.4 %
Permitted Uses: general office and technical customers service use and uses
customarily incidental thereto
Public Liability
Insurance Limits: $5,000,000.00 commercial liability combined single limit
Extension Options: Tenant shall have two (2) options to extend the Term for
periods of five (5) years each, as more specifically
provided in Article X
Expansion Option: Tenant shall have the right to expand the Premises as
provided in Article XI
1.2 Exhibits. The Exhibits listed below in this section are
incorporated in this Lease by reference and are to be construed as a part of
this Lease:
EXHIBIT A. Plan showing the Premises.
EXHIBIT A-1. Included Furniture
EXHIBIT B. Description of Landlord's Work.
EXHIBIT C. Description of Tenant's Work.
EXHIBIT D. Landlord's Cleaning Services.
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ARTICLE II: Premises and Term
2.1 Premises. Landlord hereby leases and demises to Tenant, and Tenant
hereby leases from Landlord, subject to and with the benefit of the terms,
covenants, conditions and provisions of this Lease, the Premises.
2.2 Appurtenant Rights and Reservations. Subject to the provisions of
this Section 2.2, Tenant shall have, as appurtenant to the Premises, rights to
use in common with others entitled thereto the common facilities included in the
Building or the land on which the Building is located (the "Lot"), including
common walkways, restrooms, driveways, parking areas, lobbies, hallways, ramps,
and stairways, all as shown on Exhibit A. Tenant shall have exclusive use of all
areas shown on Exhibit A as included within the Premises, except that Landlord
and any other tenants of the Building shall have access to such exclusive areas
in the case of emergency. All of Tenant's appurtenant rights granted herein
shall always be subject to reasonable rules and regulations from time to time
established by Landlord by suitable notice, Landlord hereby agreeing that such
regulations shall not conflict with any provisions of this Lease, shall be
reasonable and customary for first class office buildings in the vicinity of the
building, and shall be enforced uniformly against all tenants (or occupants).
Tenant shall have the right to install its own security system for the Premises
so long as the same does not interfere with any emergency exit or emergency
access areas Landlord maintains for itself and/or other tenants of the Building.
Tenant shall also have, as appurtenant to the Premises, the right to use for its
data center one half of the capacity provided by the existing emergency
generator and the exclusive use of capacity provided by the existing
uninterrupted power supply ("UPS") system serving the Building. Landlord agrees
that the capacity of the existing generator shall not be reduced below that
existing as of the date hereof, and that subject to the provisions of Section
5.1.5, Tenant shall have the right to install an additional emergency generator
should Tenant so require. Tenant agrees to pay Landlord $80,000.00 within 15
days of Landlord's notice that it has removed all connections of Landlord's
facilities from the UPS System.
Not included in the Premises are the roof or ceiling, the floor and all
perimeter walls of the space identified in Exhibit A, except the inner surfaces
thereof and the perimeter doors and windows, and except that Tenant shall have
the right to use the space below any floor and above any ceiling for the purpose
of installation of wires and cables for Tenant's data processing and
telecommunications equipment. The Landlord reserves the right to install, use,
maintain, repair and replace in the Premises (but upon reasonable advance notice
to Tenant, except in cases of emergency, and in such manner as not to
unreasonably interfere with Tenant's use of the Premises) utility lines, shafts,
pipes, and the like, in, over and upon the Premises, provided that the same are
located above the dropped ceiling (or, if there is no dropped ceiling, then
within three (3) feet of the roof deck), below the floor surfaces or tight
against demising walls or columns. Landlord agrees to repair any damage to the
Premises caused by the installation of any such items. Such utility lines,
shafts, pipes and the like shall not be deemed part of the Premises
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under this Lease. The Landlord also reserves the right to alter any common
facility, provided that such alterations don't reduce the size of and are at
least equivalent in quality and functional utility to the common facilities as
of the date of this Lease, and to change the boundary lines of the Lot, provided
that the same does not interfere with Tenant's parking or access to the
Premises.
Tenant shall also have the right to use the cafeteria and fitness
center in the Building, in common with Landlord and other Building tenants, for
so long as landlord elects to operate a cafeteria and a fitness center in the
Building. Tenant acknowledges that Landlord's cost in operating the cafeteria
and fitness center shall be included in Operating Costs, as defined below, and
Tenant shall be responsible for Tenant's Pro Rata Share of such costs. Landlord
makes no representation or warranty concerning the availability of a cafeteria
or a fitness center to serve the Premises and may cease operation of the present
or any subsequent cafeteria or fitness center at any time upon 30 days advance
notice to Tenant. Upon receipt of such notice Tenant may elect to amend this
Lease and add the premises occupied by the cafeteria and/or the fitness center
(including the use of all equipment and furniture therein, to the extent the
same is owned by Landlord), as the case may be, to the Premises on the same
terms and conditions of this Lease by providing written notice to Landlord
within 30 days of the date of landlord's notice. Within 15 days of Tenant's
election Landlord and Tenant each agree to execute an amendment to this Lease to
add the premises occupied by the cafeteria and/or fitness center, as the case
may be, to the Premises on the same terms and conditions of this Lease and upon
the effective date of such amendment Tenant may operate the cafeteria and/or
fitness center, as the case may be, for its exclusive benefit and to the
exclusion of other tenants of the Building. If Tenant does not provide notice
electing to operate the cafeteria and/or the fitness center, as the case may be,
or execute the applicable lease amendment within the required time period,
operation of such facility shall cease as specified in Landlord's notice and the
common area shall be reduced proportionately.
Landlord shall deliver to Tenant the furniture listed on Exhibit A-1 in
as is condition on the Commencement Date, and upon such delivery such furniture
shall become the property and responsibility of Tenant. Tenant shall also have
the right to use 350 parking spaces of the total number of spaces located on the
Lot in common with Landlord and other tenants of the Building.
2.3 Term. TO HAVE AND TO HOLD for a term beginning on the Commencement
Date and continuing for the Term, unless sooner terminated as hereinafter
provided. Notwithstanding that the Term shall have commenced, Tenant shall not
be required to pay Annual Fixed Rent or Additional Rent as required by Sections
4.1 and 4.2 until the Rent Commencement Date. The Rent Commencement Date shall
be the earlier of (a) December 1, 2002, or (b) the date of opening by Tenant of
its business in the Premises; provided that the Rent Commencement Date may be
extended for Landlord Delays as provided in Section 3.1 and provided that
Landlord has completed Landlord's work by the dates set forth in Exhibit B. The
term "substantially completed" as used herein shall mean that the work to be
performed by Landlord pursuant to Exhibit B has been completed with the
exception of minor items which can
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be fully completed without material interference with Tenant's Work. When the
dates of the beginning and end of the Term have been determined such dates shall
be evidenced by a document in form for recording executed by Landlord and Tenant
and delivered each to the other.
Tenant shall also have the right to extend the Term as provided in
Article X and the right to expand the Premises as provided in Article XI.
ARTICLE III: Improvements
3.1 Performance of Work and Approval of Landlord's Work. Landlord shall
cause to be performed the work required by Exhibit B ("Landlord's Work"). All
such work shall be done in a good and workmanlike manner employing good
materials and so as to conform to all applicable governmental laws, ordinances
and regulations. Tenant agrees that Landlord may make any changes in such work
which may become reasonably necessary or advisable, subject to the consent of
Tenant which shall not be unreasonably withheld. (Tenant may not withhold
consent for any changes required by a governmental authority). Landlord's Work
shall be substantially completed by the dates set forth in Exhibit B, subject to
the provisions of Section 9.5 hereof. If Landlord fails to substantially
complete any portion of Landlord's Work by the dates set forth in Exhibit B, as
the same may be extended under Section 9.5, and such failure results in delay to
Tenant in completing Tenant's Work by December 1, 2002, then such failure shall
be considered a "Landlord Delay." After the Commencement Date, Landlord shall
continue to have access to the Premises for the purpose of completing Landlord's
Work, provided that any such work shall not unreasonably interfere with Tenant's
Work. The Rent Commencement Date shall be extended by 1 day for each day of
Landlord Delay. If the Premises are not ready for occupancy by Tenant on the
Rent Commencement Date for any reason other than a Landlord Delay, Tenant's
obligation to pay Annual Fixed Rent and Additional Rent pursuant to Sections 4.1
and 4.2 shall nevertheless commence and Tenant's obligation to pay all rent
payable hereunder shall begin on the Rent Commencement Date.
3.2 Pre-Commencement Work by Tenant. Tenant agrees that it will proceed
with all reasonable dispatch from the Commencement Date, perform the work
required to be done by Tenant so as to ready the Premises for the opening by
Tenant of its business in the Premises, including, without limitation, the work,
if any, specified in Exhibit C. Tenant shall have access to the Premises prior
to the receipt of such notice for the purpose of inspecting Landlord's Work and
planning Tenant's Work, and for construction of any portion of Tenant's Work
that can be accomplished without interfering with the construction of Landlord's
Work. All of Tenant's Work shall be shown on plans and construction drawings
prepared at Tenant's expense that are subject to the prior written approval of
Landlord, and all work by Tenant shall be done in accordance with Section 5.1.5.
Landlord agrees to approve or reject with specific reasons any plans (and
subsequent revisions) submitted by Tenant within 5 days of receipt of the same.
Any approval by Landlord of Tenant's plans shall not be considered a
representation or warranty that such plans conform to applicable law and
responsibility for such compliance shall be solely that
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of Tenant. Not withstanding the above, any plans attached to this Lease as part
of Exhibit C are hereby approved by Landlord without further submission.
Tenant shall have the right during such pre-commencement period to use
restrooms, elevators, loading docks, parking and other related facilities as are
reasonably necessary to perform Tenant's Work. Any site location and staging
areas for Tenant's construction crews shall be subject to Landlord's prior
approval which shall not be unreasonably withheld. All such facilities shall be
provided at no cost to Tenant, provided that the incremental costs of all
utilities incurred at the Premises attributable to Tenant's Work from and after
the Commencement Date shall be paid by Tenant within 30 days of Landlord's
invoice for the same. Tenant shall be responsible, at its expense, for the
supervision, contracting, and construction of all tenant improvements at the
Premises and the payment to all contractors performing such work and for
obtaining all governmental approvals required for such work. During the period
of occupancy of the Premises by Tenant prior to the Rent Commencement Date, all
provisions of this Lease except the provisions relating to the payment of Annual
Fixed Rent and Additional Rent shall apply to the extent that said provisions
may be made applicable to said period.
3.3 Acceptance of the Premises. Tenant or its representatives may
enter upon the Premises during the progress of Landlord's Work to inspect the
progress thereof and to determine if the work is being performed in accordance
with the requirements of Section 3.1. Tenant shall promptly give to Landlord
notices of any alleged failure by Landlord to comply with those requirements.
Landlord's Work shall be deemed approved by Tenant when Tenant
commences occupancy of the Premises for business purposes except for items of
Landlord's Work which are uncompleted or do not conform to Exhibit B. If Tenant
shall not have commenced occupancy of the Premises for business purposes within
30 days after the Rent Commencement Date, a certificate of completion by a
licensed architect or registered engineer shall be conclusive evidence that
Landlord's Work has been completed except for items stated in such certificate
to be incomplete or not in conformity with Exhibit B.
3.4 Construction Representatives. Each party authorizes the other to
rely in connection with plans and construction upon approval and other actions
on the party's behalf by any Construction Representative of the party named in
Section 1.1 or any person hereafter designated in substitution or addition by
notice to the party relying.
3.5 WARRANTY. Landlord represents and warrants that, to the best of
its knowledge: The Town of Billerica Zoning By-law permits the premises to be
used for the Permitted Uses, the Premises comply in all material respects with
all applicable laws in effect as of the date hereof, and that all building
systems and the roof are in good operating condition. LANDLORD MAKES NO EXPRESS
OR IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR THE PERMITTED USES, FOR
TENANT'S INTENDED USE OF THE
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PREMISES OR FOR ANY PURPOSE WHATSOEVER.
ARTICLE IV: Rent
4.1 The Fixed Rent. Tenant covenants and agrees to pay rent to
Landlord at the Original Address of Landlord or at such other place or to such
other person or entity as Landlord may by notice to Tenant from time to time
direct, without any demand whatsoever except as otherwise specifically provided
in this Lease and without any counterclaim, offset or deduction whatsoever, at
the Annual Fixed Rent Rate, in equal installments of 1/12th of the Annual Fixed
Rent Rate in advance on the first day of each calendar month included in the
Term; and for any portion of a calendar month at the beginning or end of the
Term, at that rate payable in advance for such portion.
4.2 Additional Rent. This Lease is a NET LEASE, and Landlord shall
not be obligated to pay any charge or bear any expense whatsoever against or
with respect to the Premises except to the extent hereinafter provided, nor
shall the rent payable hereunder be subject to any reduction or offset
whatsoever on account of any such charge or otherwise except as hereinafter
provided. In order that the Fixed Rent shall be absolutely net to Landlord,
Tenant covenants and agrees to pay, as Additional Rent, Tenant's Pro Rata Share
of taxes, betterment assessments, insurance costs, and utility charges with
respect to the Premises as provided in this Section 4.2 as follows:
4.2.1 Real Estate Taxes. Tenant shall pay to Landlord Tenant's Pro
Rata Share of the Real Estate Taxes for the Property, plus 100% of : (i) all
taxes, assessments (special or otherwise), levies, fees, water and sewer rents
and charges, and all other government levies and charges, general and special,
ordinary and extraordinary, foreseen and unforeseen, which are, at any time
prior to or during the Term hereof, imposed or levied upon or assessed against
(A) the Premises, (B) any Fixed Rent, Additional Rent or other sum payable
hereunder or (C) this Lease, or the leasehold estate hereby created, or which
arise in respect of the operation, possession or use of the Premises; (ii) all
gross receipts or similar taxes imposed or levied upon, assessed against or
measured by any Fixed Rent, Additional Rent or other sum payable hereunder;
(iii) all sales, value added, use and similar taxes at any time levied, assessed
or payable on account of the acquisition, leasing or use of the Premises; and
(iv) all charges for utilities furnished to the Premises which may become a lien
on the Premises (collectively "taxes and assessments" or if singular "tax or
assessment"). If any tax or assessment levied against the Premises may legally
be paid in installments, Landlord shall elect to pay such tax or assessment in
installments. For each tax or assessment period, or installment period thereof,
wholly included in the Term, all such payments shall be made by Tenant not less
than ten business days prior to the last date on which the same may be paid
without interest or penalty so long as Tenant has received 15 days prior notice
of such due dates; provided that for any fraction of a tax or assessment period,
or installment period thereof, included in the Term at the beginning or end
thereof, Tenant shall pay to Landlord, within 15 days after receipt of invoice
therefor, the fraction of taxes and assessments so levied or assessed or
becoming payable which is allocable to such included period. Either
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party paying any tax or assessment shall be entitled to recover, receive and
retain for its own benefit all abatements and refunds related thereto, unless it
has previously been reimbursed by the other party. Any abatement or refund
related to a tax or assessment the payment of which was apportioned between the
parties shall be first applied to the costs of securing such abatement or
refund, and the balance shall be allocated to Tenant based on their Pro Rata
share. Neither party shall discontinue any abatement proceedings begun by it
without first giving the other party notice of its intent so to do and
reasonable opportunity to be substituted in such proceedings. Notwithstanding
any other provision of this Lease to the contrary, neither party paying any tax
or assessment shall make such payment in such an amount, in such a manner, or at
such a time as would prejudice any abatement proceeding unless failure to make
such payment would jeopardize either party's interest in the Premises in which
case payment shall be made so that such interest is not so jeopardized. Nothing
contained in this Lease shall, however, require Tenant to pay any franchise,
corporate, estate, inheritance, succession capital levy or transfer tax of
Landlord, or any income, profits or revenue tax or charge upon the rent payable
by Tenant under this Lease (other than any tax referred to in clause (ii) above)
unless such tax is imposed, levied or assessed in substitution for any other tax
or assessment which Tenant is required to pay pursuant to this Section 4.2.1.
4.2.2 Tax Fund Payments. At Landlord's election, Tenant shall pay as
Additional Rent, on the first day of each month of the Term, tax fund payments
to Landlord. "Tax fund payments" refer to such payments as Landlord shall
reasonably determine (based on the prior year's taxes plus 2.5%) to be
sufficient to provide in the aggregate a fund adequate to pay all taxes and
assessments referred to in Section 4.2.1 when they become due and payable. If
the aggregate of said tax fund payments is not adequate to pay all said taxes
and assessments, Tenant shall pay to Landlord the amount by which such aggregate
is less than the amount of all said taxes and assessments, such payment to be
made on or before the later of (a) 15 days after receipt by Tenant of notice
from Landlord of such amount, or (b) the 30th day prior to the last day on which
such taxes and assessments may be paid without interest or penalty. If Tenant
shall have made the aforesaid tax fund payments, Landlord shall pay to the
proper authority charged with the collection thereof all taxes and assessments
referred to in Section 4.2.1, up to the amount of such tax fund payments, and
furnish Tenant, upon request, reasonable evidence of such payment. Any balance
remaining after such payment by Landlord shall be accounted for to Tenant
annually and any balance remaining shall be promptly refunded to Tenant on a
pro-rata basis.
In the event of any default under the terms of this Lease, any part or
all of said reserve fund may, at the election of Landlord, be applied to any of
Tenant's obligations under this Lease.
4.3 Tenant's Share of Operating Costs. Tenant shall pay to Landlord,
as additional rent, Tenant's Pro Rata Share of Operating Costs (defined below).
The Tenant shall pay to Landlord pro rata monthly installments on account of the
projected amount of Operating Costs for each calendar year during the Lease Term
in amounts reasonably calculated from time to time by Landlord, with an
adjustment made after the close of the calendar year, to account for actual
Operating Costs for such calendar year. Such pro rata estimate shall be capped
at the prior year's
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actual costs plus 5%, not including the cost of additional services that were
not provided in the prior year, but such cap on the estimated payments shall not
relieve Tenant of its obligation to pay its Pro Rata Share of actual Operating
Costs as required hereunder. If the total of such monthly installments in any
calendar year is greater than Tenant's Proportionate Share of actual Operating
Costs for such calendar year, Tenant shall be entitled to a refund. If Tenant
has no outstanding monetary obligations to Landlord, Landlord shall promptly pay
such amount to Tenant. In no event shall the Landlord credit Tenant's account
for an amount greater than the amount of Operating Costs actually paid in by
Tenant during the calendar year. If the total of such monthly installments is
less than such liability for such calendar year, Tenant shall pay to Landlord
the amount of such difference, as additional rent, within thirty (30) days after
Tenant receives Landlord's invoice therefor. Landlord shall provide Tenant with
a written statement of actual Operating Costs and Tenant's Pro Rata share of the
same by April 15 of the year following the year for which such statement is
prepared, and any refund due Tenant shall also be made by May 15 of the same
year. Tenant shall have the right to audit Landlord's books and records related
to Operating Costs and Real Estate Taxes, during regular business hours and upon
reasonable advance notice to Landlord, within 90 days after the date of
Landlord's yearly statement concerning Operating Costs. In the event that the
audit reveals an overstatement of more than 5% of Operating Costs and Real
Estate Taxes, Landlord shall be responsible for the reasonable cost of Tenant's
audit.
As used in this Lease, the term "Operating Costs" shall mean all costs
and expenses incurred by Landlord in connection with operation, insuring,
repair, equipping, maintenance, replacement, management, cleaning and protection
(collectively, "the Operation") of the Building, the Building heating,
ventilating, air conditioning, electrical, plumbing, hot water, security, alarm,
elevator, mechanical and other systems in the Building and the Lot
(collectively, "the Property"), provided that all such Operating Expenses shall
be reasonable and customary for similar leased office buildings in the north of
Boston suburban office market, and shall include, without limitation, the
following:
(1) All expense incurred by Landlord or its agents which shall be
related to employment of day and night supervisors, janitors, handymen,
carpenters, engineers, firemen, mechanics, electricians, plumbers, guards,
cleaners and other personnel (including amounts incurred for wages, salaries and
other compensation for services, payroll, social security, unemployment and
similar taxes, workmen's compensation insurance, disability benefits, pensions,
hospitalization, retirement plans and group insurance, uniforms and working
clothes and the cleaning thereof, and expenses imposed on Landlord or its agents
pursuant to any collective bargaining agreement), for services in connection
with the Operation of the Property, and personnel engaged in supervision of any
of the persons mentioned above (excluding anyone above the title of Facility
Manager); provided, however, that the costs of employing personnel who work less
than full-time in connection with the Operation of the Property shall be
equitably adjusted;
(2) The cost of services, service and maintenance contracts, materials
and supplies
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furnished or used in the Operation of the Property;
(3) The reasonable amounts paid to managing agents and for legal and
other professional fees relating to the Operation of the Property, but excluding
such fees paid in connection with (x) negotiations for or the enforcement of
leases; and (y) financing or re-financing with respect to Landlord's interest in
the Property, or selling or ground leasing all or any part of the Property;
provided, however, that management fees shall not exceed prevailing market
rates;
(4) Insurance premiums for all insurance carried by Landlord in
connection with the operation of the Property, provided that all such insurance
shall contain coverage amounts and deductibles that are reasonable and customary
for first class office buildings in the north of Boston suburban office market;
(5) Costs for electricity, steam and other utilities required in the
Operation of the Property;
(6) Water and sewer use charges;
(7) The costs of snow-plowing and removal, and parking lot
maintenance, and landscaping;
(8) Reasonable amounts paid to independent contractors for services,
materials and supplies furnished for the Operation of the Property;
(9) Capital expenses incurred in connection with repairs, replacements
and renewals at the Property, but only to the extent of the amortized cost of
such items amortized over the useful life of such items;
(10) The cost of cleaning services to the Building in accordance with
Exhibit D
(11) The cost of operating the cafeteria and fitness center; and
(11) All other expenses incurred in connection with the Operation of
the Property.
Operating Costs may be incurred directly or by way of reimbursement,
and shall include taxes applicable thereto. The following shall be excluded from
Operating Costs:
(1) Salaries of officers and executives of Landlord not directly
connected with the Operation of the Property (i.e., above the level of Building
Manager) and other costs and expenses associated with the Operation of the
Property, but allocable to other properties (e.g., where a service is provided
at a single cost to both the Property and another property of Landlord,
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an equitable allocation shall be made to exclude the cost fairly attributable to
such other property);
(2) Depreciation of the original construction costs of the Building;
(3) Expenses relating to alterations of other tenant's premises in
the Building including the Landlord's premises but excluding Common Areas;
(4) Interest and principal on indebtedness;
(5) Expenses for which Landlord, by the terms of this Lease or any
other lease, makes a separate charge;
(6) Real estate taxes;
(7) The cost of any electric current or other utilities furnished to
the Building tenants and separately metered or billed, and the cost of any
service provided for the exclusive benefit of another tenant of the Building;
(8) Leasing fees or commissions; and
(9) Capital and other expenses incurred in the construction of
additional leasable area on the Property and other capital expenses, except the
amortized cost of capital expenses incurred in connection with repairs,
replacements and renewals at the Property, as allowed in Section 4.3 (9) above.
Nothing contained in this Section 4.3 shall be construed to limit or
otherwise prejudice any rights Tenant may have for breach of Landlord's
warranties under Section 3.5
4.4 Separately Metered Utilities and Additional Tenant Services.
Tenant shall pay directly to the utility, as they become due, all bills for
electricity, gas, water and sewer, and other utilities (whether they are used
for furnishing heat or for other purposes) that are furnished to the Premises
and now or hereafter separately metered or billed by the utility to the
Premises. If any utilities used or consumed by Tenant are not separately
metered, Tenant shall pay its allocable share of such utilities, based on use or
pro rata share of the meter, as reasonably determined by Landlord. Tenant shall
also pay to Landlord, as additional rent within 30 days of Landlord's invoice,
the cost of all additional services provided for Tenant or the Premises that are
requested or required by Tenant and are not included within Operating Costs,
including those services not included within Operating Costs requested by Tenant
and provided by Landlord pursuant to Section 5.3 In addition, Tenant shall pay
the full cost of any expense, service or variable expense that is requested by
Tenant, and provided for the exclusive benefit of the Tenant.
4.5 Late Payment of Rent. If any installment of Fixed Rent or payment
of Additional
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Rent is paid more than ten (10) days after the date the same was due, and Tenant
has been provided 5 days notice of such failure (provided that such notice shall
not be required to be provided more than twice in any twelve (12) month period),
Tenant shall pay a penalty of 5% of the payment due and it shall bear interest
from the due date at the prime commercial rate of Fleet Bank (or its successor),
as it may be adjusted from time to time, plus two percent per annum, or, in the
event of Tenant's default under clauses (b) through (f) inclusive of Section
7.1, plus four percent per annum, but in no event more than the maximum rate of
interest allowed by law, the payment of which shall be Additional Rent.
ARTICLE V: Tenant's Additional Covenants and Landlord's Services
5.1 Affirmative Covenants. Tenant covenants at its sole expense at
all times during the Term and for such prior or subsequent time as Tenant
occupies the Premises or any part thereof:
5.1.1 Perform Obligations. To perform promptly all of the obligations
of Tenant set forth in this Lease; and to pay when due the Fixed Rent and
Additional Rent and all charges, rates and other sums which by the terms of this
Lease are to be paid by Tenant.
5.1.2 Use. To use the Premises only for the Permitted Uses, and from
time to time to procure all licenses and permits necessary therefor at Tenant's
sole expense.
5.1.3 Repair and Maintenance. Except as otherwise provided in Section
3.1 and Article VI, to keep the Premises including, without limitation, all
improvements therein and all supplemental heating, plumbing, hot water,
ventilating, electrical, air-conditioning, security, alarm, mechanical and other
fixtures and equipment now or hereafter exclusively servicing the Premises in
good order, condition and repair and in at least as good order, condition and
repair as they are in on the Commencement Date or may be put in during the Term,
reasonable use and wear only excepted. Tenant shall secure, pay for and keep in
force contracts with appropriate and reputable service companies providing for
the regular and proper maintenance of the supplemental security, alarm, ,
heating, ventilating, and air-conditioning systems and copies of such contracts
shall be furnished to Landlord. It is further agreed that the exception of
reasonable use and wear shall not apply so as to permit Tenant to keep the
Premises in anything less than suitable, tenantlike, and efficient and usable
condition considering the nature of the Premises and the use reasonably made
thereof, or in less than good and tenantlike repair.
5.1.4 Compliance with Law. Subject to Landlord's obligation to deliver
the Premises in compliance with existing law, Tenant shall make all repairs,
alterations, additions or replacements to the Premises required by any law or
ordinance or any order or regulation of any public authority; to keep the
Premises equipped with all safety equipment so required; to pay all municipal,
county, or state taxes assessed against the leasehold interest hereunder, or
against personal property of any kind on or about the Premises; and to comply
with the orders, regulations, variances, licenses and permits of or granted by
governmental authorities with respect to zoning, building, fire, health and
other codes, regulations, ordinances or laws
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applicable to the Premises, and the condition, use or occupancy thereof, except
that Tenant may defer compliance so long as the validity of any such order,
regulation, code, ordinance or law shall be contested by Tenant in good faith
and by appropriate legal proceedings, if Tenant first gives Landlord appropriate
assurance reasonably satisfactory to Landlord against any loss, cost or expense
on account thereof, and provided such contest shall not subject Landlord to
criminal penalties or civil sanctions, loss of property or material civil
liability.
5.1.5 Tenant's Work. To procure at Tenant's sole expense all necessary
permits and licenses before undertaking any work on the Premises; to do all such
work in compliance with the applicable provisions of Sections 3.2 and 5.2.3
hereof; to do all such work in a good and workmanlike manner employing materials
of good quality and so as to conform with all applicable zoning, building, fire,
health and other codes, regulations, ordinances and laws; any work commenced by
Tenant will be completed in accordance with the specifications set forth in
Exhibit C or otherwise approved in writing by Landlord, whichever may be
applicable, and that no liens for labor or materials will attach to the Premises
with respect to any such work; to pay promptly when due the entire cost of any
work on the Premises undertaken by Tenant so that the Premises shall at all
times be free of liens for labor and materials; to employ for such work one or
more responsible contractors whose labor will work without interference with
other labor working on the Premises; to require such contractors employed by
Tenant to carry workmen's compensation insurance in accordance with statutory
requirements and comprehensive public liability insurance covering such
contractors on or about the Premises in amounts that at least equal the limits
set forth in Section 1.1 and to submit certificates evidencing such coverage to
Landlord prior to the commencement of such work; 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. Tenant shall have the right
to make non-structural changes excluding changes to the HVAC or electrical
systems that cost less than $25,000 without the Landlord's prior approval,
provided that Tenant shall provide plans and specifications for such work to
Landlord prior to the commencement of such work, and provided that such work
shall be undertaken and promptly completed in compliance with the provisions of
this section. Any other Tenant's work shall likewise be undertaken and promptly
completed in compliance with the provisions of this section and shall also
require Landlord's prior written approval, which approval shall not be
unreasonably withheld; any work for which no building permit is required, for
example the installation of office furniture, work stations and modular
partitions, shall not require the Landlord's prior written consent under this
subsection.
5.1.6 Insurance and Indemnity. Tenant shall maintain in full force
from the date upon which Tenant first enters the Premises for any reason,
throughout the Lease Term, and thereafter so long as Tenant is in occupancy of
any part of the Premises, (a) a policy of commercial general liability
insurance, written on an occurrence basis and including contractual liability
coverage to cover any liabilities assumed under this Lease, insuring against all
claims for injury to or death of persons or damage to property on or about the
Premises or arising out of the use of the Premises, including products
liability, and completed operations liability, and (b) automobile liability
insurance covering all owned vehicles, hired vehicles, and all other non-owned
vehicles. Each
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such policy shall designate Tenant as a named insured and Landlord, its managing
agent, if any, and any mortgagees (as may be set forth in a notice given from
time to time by Landlord) shall be named as additional insureds, as their
interests appear.
Such commercial general liability policy shall expressly provide that
it shall not expire or be amended or canceled without at least thirty (30) days'
prior written notice to Landlord in each instance and that the interests of
Landlord thereunder or therein shall not be affected by any breach by Tenant of
any policy provision, and a certificate thereof shall be delivered to Landlord.
The limits of liability of such insurance shall be bodily injury and property
damage combined single limit of $5,000,000 per occurrence.
Tenant shall also maintain in full force from the date upon which
Tenant first enters the Premises for any reason, throughout the Lease Term, and
thereafter so long as Tenant is in occupancy of any part of the Premises, a
policy insuring any leasehold improvements paid for by Tenant and all fixtures,
equipment, and other personal property of Tenant against damage or destruction
by fire or other casualty in an amount equal to the full replacement cost of
such property. Tenant shall also maintain insurance against such other hazards
as may from time to time reasonably be required by Landlord or the holder of any
mortgage on the Premises, provided that such insurance is customarily carried in
the area in which the Premises are located on property similar to the Building
and that Tenant receives written notice specifying all such additional insurance
as may be required. At Landlord's request, any such policies of insurance, with
the exception of policies of insurance covering Tenant's fixtures, equipment,
and personal property, shall name any such mortgagee as loss payee under a
standard mortgagee's clause.
At any time when demolition or construction work is being performed
(which requires a building or demolition permit) on or about the Premises or
Building by or on behalf of Tenant, Tenant shall keep in full force and effect
the following insurance coverage:
(1) builder's risk completed value (non-reporting form) in such form
and affording such protections as required by Landlord, naming Landlord and its
mortgagees as additional insureds; and
(2) workers' compensation or similar insurance in form and amounts
required by law.
Tenant shall cause a certificate or certificates of such insurance to
be delivered to Landlord prior to the commencement of any work in or about the
Building or the Premises, in default of which Landlord shall have the right, but
not the obligation, to obtain any or all such insurance at the expense of
Tenant, in addition to any other right or remedy of Landlord. The provisions of
this Section shall survive the expiration or earlier termination of this Lease.
Landlord shall maintain the following policies of insurance, the cost
of which shall be included in Operating Costs (and shall be obtained in
compliance with Section 4.3 above): fire and extended coverage insurance
covering all hazards included within customary "all risks"
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coverage, on a full value, repair or replacement basis as determined by
Landlord; commercial general liability, written on an occurrence basis and
including contractual liability coverage to cover any liabilities assumed under
this Lease, insuring against all claims for injury to or death of persons or
damage to property on or about the common areas of the Building and the Lot or
arising out of the use thereof with limits of $5,000,000 per occurrence,
combined single limit; rental abatement insurance against abatement or loss of
Rent in case of fire or other casualty, in an amount at least equal to the
amount of the Rent payable by Tenant during the then current lease year as
reasonably determined by Landlord; Tenant shall not acquire, by being named at
the election of Landlord, as insured under any insurance maintained by Landlord,
the right to participate in the adjustment of any loss or to receive insurance
proceeds.
Tenant shall defend, with counsel reasonably approved by Landlord, all
actions, against Landlord, any manager, member, partner, trustee, stockholder,
officer, director, employee or beneficiary of Landlord, holders of mortgages on
the Premises and any other party having an interest in the Premises (herein,
"Indemnified Parties") with respect to, and shall pay, protect, indemnify and
save harmless, to the extent permitted by law, all Indemnified Parties from and
against, any and all liabilities, losses, damages, costs, expenses (including
reasonable attorneys' fees and expenses), causes of action, suits, claims,
demands or judgments of any nature arising from injury, death or damage to or
loss of property, to the extent caused by any act, fault, omission, or other
misconduct of Tenant or its agents, contractors, licensees, subleases or
invitees.
Landlord shall defend, with counsel reasonably approved by Tenant, all
actions, against Tenant, any manager, member, partner, trustee, stockholder,
officer, director, employee or beneficiary of Tenant (herein, "Indemnified
Parties") with respect to, and shall pay, protect, indemnify and save harmless,
to the extent permitted by law, all Indemnified Parties from and against, any
and all liabilities, losses, damages, costs, expenses (including reasonable
attorney's fees and expenses), causes of action, suits, claims, demands or
judgments of any nature arising from injury, death or damage to or loss of
property, to the extent caused by any act, fault, omission, or other misconduct
of Landlord or its agents, contractors, licensees, subleases or invitees.
Landlord hereby expressly waives and releases any cause of action or
right of recovery which Landlord may have hereafter against the Tenant for any
loss or damage to the Premises, or to the contents thereof, caused by fire,
explosion or any other risk covered by insurance. Landlord shall obtain a waiver
from any insurance carrier with which Landlord carries all risk or other
similarly-intended property insurance coverage - insuring the building and other
improvements - releasing its subrogation rights against Tenant.
Tenant hereby expressly waives and releases any cause of action or
right of recovery which Tenant may have hereafter against the Landlord for any
loss or damage to any of Tenant's personal property or fixtures caused by fire
explosion or any other risk covered by insurance. Tenant shall obtain a waiver
from any insurance carrier with which Tenant carries all risk or
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other property insurance coverage releasing its subrogation rights against
Landlord.
5.1.7 Landlord's Right to Enter. To permit Landlord and its agents to enter
the Premises at reasonable times with prior written notice (except in the case
of an emergency) to examine the Premises, to make such repairs and replacements
as Landlord may elect, without, however, any obligation to do so, and to show
the Premises to prospective purchasers, lenders and tenants, and, during the
last six months of the Term, to keep affixed in suitable places notices of
availability of the Premises.
5.1.8 Personal Property at Tenant's Risk. 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, steam pipes, or other pipes, by theft or from any other cause, no part of
said loss or damage is to be charged to or to be borne by Landlord, except if
such loss or damage is due to the act, fault, omission, or other misconduct of
Landlord, its agents, contractors, or invitees.
5.1.9 Payment of Cost of Enforcement. To pay on demand the prevailing
party's expenses, including reasonable attorneys' fees, incurred in enforcing
any obligation of a defaulting party under this Lease or in curing any default
by the defaulting party under this Lease.
5.1.10 Yield Up. At the expiration of the Term or earlier termination of
this Lease: to surrender all keys to the Premises, to remove all furnishings,
fixtures, equipment and other personal property now or hereafter located in the
Premises, purchased or leased by Tenant with its own funds, which are not
affixed to the Building or Land or which Landlord has agreed in writing that
Tenant may remove at the expiration of the Term, to remove such installations
made by Tenant as Landlord may request (provided that Landlord may only make
such request for items that are not included in the initial Tenant's Work or
that are not typical and customary for first class office buildings in the
greater Boston area and all such requests shall be made at the time of Landlord
approval of such installation) and all Tenant's signs wherever located, to
repair all damage caused by such removal and to yield up the Premises (including
all installations and improvements made by Tenant, except for trade fixtures,
and such of said installations or improvements as Landlord shall request Tenant
to remove), broom-clean and in the same good order and repair in which Tenant is
obliged to keep and maintain the Premises by the provisions of this Lease. Any
property not so removed shall be deemed abandoned and may be retained by
Landlord or 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 Landlord in effecting such removal and disposition and in
making any incidental repairs and replacements to the Premises. For each day
after the expiration of the Term, or the earlier termination of this Lease, and
prior to Tenant's performance of its obligation to yield up the Premises under
this Section 5.1.10, Tenant shall pay to Landlord as rent an amount equal to
150% of the Fixed Rent
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computed on a daily basis, together with all Additional Rent payable with
respect to each such day. Tenant shall further indemnify Landlord against all
loss, cost and damage resulting from Tenant's delay in surrendering the Premises
as above provided.
5.1.11 Estoppel Certificate. Upon not less than 15 days' prior notice by
Landlord, to execute, acknowledge and deliver to Landlord a statement in
writing, addressed to such party as Landlord shall designate in its notice to
Tenant, certifying that this Lease is unmodified and in full force and effect
and that Tenant has no defenses, offsets or counterclaims against its
obligations to pay the Fixed Rent and Additional Rent and any other charges and
to perform its other covenants under this Lease (or, if there have been any
modifications that the same is in full force and effect as modified and stating
the modifications and, if there are any defenses, offsets or counterclaims,
setting them forth in reasonable detail), the dates to which the Fixed Rent and
Additional Rent and other charges have been paid and a statement that Landlord
is not in default hereunder (or if in default, the nature of such default, in
reasonable detail). Any such statement delivered pursuant to this Section 5.1.11
may be relied upon by any prospective purchaser or mortgagee of the Premises, or
any prospective assignee of any such mortgagee.
5.1.12 Financial Statements. Tenant shall furnish to Landlord and to any
holder of a mortgage on the Premises as Landlord may designate by notice to
Tenant, within 75 days after each full or partial fiscal year of operation at
the Premises, a current balance sheet and an annual operating statement, in form
and detail reasonably satisfactory to Landlord and to any such holder of a
mortgage, prepared by a certified public accountant acceptable to Landlord and
to any such holder of a mortgage. Landlord may require that such statements be
audited. The provisions of this section shall not apply to Tenant for so long as
Tenant's stock is publicly traded on a nationally recognized security exchange
in the United States.
5.2 Negative Covenants. Tenant covenants at all times during the Term and
for such further time as Tenant occupies the Premises or any part thereof:
5.2.1 Assignment and Subletting. Not to assign, transfer, mortgage or
pledge this Lease or to grant a security interest in Tenant's rights
hereunder, or to sublease (which term shall be deemed to include the
granting of concessions and licenses and the like) or permit anyone other
than Tenant to occupy all or any part of the Premises or suffer or permit
this Lease or the leasehold interest hereby created or any other rights
arising under this Lease to be assigned, transferred or encumbered, in
whole or in part, whether voluntarily, involuntarily or by operation of
law, unless, in each instance (i) the prior written consent of Landlord
thereto shall have been obtained, (ii) any defaults then existing with
respect to the obligations of Tenant under this Lease shall have been
cured, and (iii) in the case of a proposed assignment, sublease or
occupancy by another, the proposed assignee, sublessee, or occupant is
qualified to do business in the state in which the Premises are located and
such assignee, sublessee, or occupant executes and delivers to Landlord an
agreement reasonably satisfactory to Landlord by which such assignee,
sublessee or occupant shall be bound by and shall assume all the
obligations of this Lease applicable
17
thereto relating to the portion or all of the Premises acquired by such
assignee, sublessee or occupant. Landlord's consent pursuant to subsection
(i) above shall not be unreasonably withheld or delayed, provided that
subsections (ii) and (iii) above have been complied with and the
creditworthiness of the proposed assignee, shall be equal to or greater
than that of tenant as of the date hereof or the date of the proposed
assignment, whichever is greater, and the proposed use of the premises
shall be for the Permitted Use. Balance sheets and profit and loss
statements, certified by a certified public accountant, shall be furnished
by Tenant to Landlord with Tenant's request for consent (provided that in
the case of a subtenant this requirement shall be waived if they are not
available).
Notwithstanding the foregoing, Tenant may assign this Lease or sublet
any portion or all of the Premises to any corporation, partnership, trust,
association or other business or organization (x) directly or indirectly
controlling and beneficially owning Tenant, (y) directly or indirectly
controlled by and beneficially owned by Tenant, or (z) to any successor of
Tenant by merger, consolidation or acquisition of substantially all of the
assets of Tenant, without the prior written consent of Landlord as required
in (i) above, provided that (a) Tenant shall deliver to Landlord advance
notice of such proposed assignment or sublease, (b) in the case of a
merger, consolidation or sale, the net worth of Tenant's successor
(determined in accordance with generally accepted accounting principles)
immediately after such merger, consolidation or sale shall be at least
equal to the net worth of Tenant (similarly determined) immediately prior
to such merger, consolidation or sale. If for any assignment or sublease or
occupancy by another, Tenant receives rent or other consideration, either
initially or over the term of the assignment, sublease or occupancy, in
excess of the rent called for hereunder, or in case of sublease of part of
the Premises, in excess of such rent fairly allocable to the part so
subleased, after appropriate adjustments to assure that all other payments
called for hereunder are appropriately taken into account, Tenant shall pay
to Landlord, as Additional Rent, 50% of the excess of each such payment of
rent or other consideration received by Tenant promptly after its receipt;
provided that Tenant shall first be entitled to recover its out of pocket
expenses incurred in connection with such sublease, including brokers'
commissions, tenant fit up costs, and reasonable attorneys fees. In the
event of a proposed subletting for more than 50% of the remaining Term of
this Lease of more than 50% of the Premises, Tenant's request for
Landlord's consent shall constitute an offer to Landlord to release from
this Lease that portion of the Premises proposed to be sublet, which offer
Landlord may accept within 30 days after receipt. If Landlord accepts such
offer, this Lease shall be deemed to have been amended by deleting such
portion from the Premises and by reducing the Fixed Rent by an amount equal
to the product of the Fixed Rent multiplied times a fraction, the numerator
of which shall be equal to the net rentable floor area of such portion
deleted from the Premises and the denominator of which shall be equal to
the net rentable floor area of the Premises including the deleted portion.
Thereafter, for all purposes of this Lease the Premises shall mean the
balance of the premises demised hereunder following deletion of the
affected portion thereof, and all Additional Rent payable hereunder shall
be adjusted pro-rata, accordingly. Such
18
amendment shall be effective on the proposed effective date of the sublease
as specified in Tenant's request for consent. Tenant shall be responsible
for all changes in leasehold improvements, including doors and demising
walls, required by such amendment, which changes shall be constructed in
accordance with the relevant provisions of Section 3.2, Section 5.1.5 and
Section 5.2.3, and Tenant shall at all times provide reasonable and
appropriate access through the balance of the Premises demised hereunder to
such deleted portion of the Premises and use of any common facilities lying
within the said balance of the Premises. Landlord's failure to accept
Tenant's offer to release shall not constitute consent to the proposed
subletting. In the event of a proposed assignment of this Lease, Tenant's
request for Landlord's consent shall constitute an offer to Landlord to
terminate this Lease, which offer Landlord may accept within 30 days after
receipt. Landlord's failure to accept Tenant's offer to terminate shall not
constitute consent to the proposed assignment. For the purposes of this
Section 5.2.1, the transfer in the aggregate in any one year of 50% or more
in interest in Tenant (whether stock, partnership interest or other form of
ownership or control) by any person or persons having an interest in
ownership or control of Tenant shall be deemed an assignment of this Lease.
The preceding sentence shall not apply to the initial Tenant named herein
if such initial Tenant is a corporation and the outstanding voting stock
thereof is listed on a recognized securities exchange.
Any attempted assignment, transfer, mortgage, pledge, grant of security
interest, sublease or other encumbrance, except as permitted by this Section
5.2.1, shall be void. No assignment, transfer, mortgage, grant of security
interest, sublease or other encumbrance, whether or not approved, and no
indulgence granted by Landlord to any assignee, sublessee or occupant shall in
any way impair Tenant's continuing primary liability (which after an assignment
or subletting shall be joint and several with the assignee or sublessee) of
Tenant hereunder, and no approval in a particular instance shall be deemed to be
a waiver of the obligation to obtain Landlord's approval in any other case.
5.2.2 Overloading and Nuisance. Not to injure, overload, deface or
otherwise harm the Premises; nor commit any nuisance; nor permit the emission of
any objectionable noise or odor; nor make, allow or suffer any waste; not to
dump, flush, or in any way introduce any hazardous substances or any other toxic
substances into the septic, sewage or other waste disposal system serving the
Premises. Tenant shall not use, handle or store or dispose of any oil, hazardous
or toxic substances, materials or wastes (collectively "Hazardous Materials")
in, under, on or about the Property except for such storage and use consented to
by Landlord in advance which consent may be withheld in Landlord's sole and
absolute discretion. Any Hazardous Materials in the Premises, and all containers
therefor, shall be used, kept, stored and disposed of in conformity with all
applicable laws, ordinances, codes, rules, regulations and orders of
governmental authorities. If the transportation, storage, use or disposal of
Hazardous Materials anywhere on the Property in connection with Tenant's use of
the Premises results in (1) contamination of the soil or surface or ground water
or (2) loss or damage to person(s) or property, then Tenant agrees (i) to notify
Landlord immediately of any contamination, claim of contamination, loss or
damage, (ii) after consultation with and approval by Landlord, to clean up all
contamination in full
19
compliance with all applicable statutes, regulations and standards, and (iii) to
indemnify, defend and hold Landlord harmless from and against any claims, suits,
causes of action, costs and fees, including, without limitation, attorneys'
fees, arising from or connected with any such contamination, claim of
contamination, loss or damage. This provision shall survive the termination of
this Lease. No consent or approval of Landlord shall in any way be construed as
imposing upon Landlord any liability for the means, methods, or manner of
removal, containment or other compliance with applicable law for and with
respect to the foregoing. The terms of this Section shall apply to any
transportation, storage, use or disposal of Hazardous Materials irrespective of
whether Tenant has obtained Landlord's consent therefor but nothing in this
Lease shall limit or otherwise modify the requirement of obtaining Landlord's
prior consent as set forth above. Notwithstanding the foregoing, Tenant shall
have the right to use Hazardous Materials in the Premises in such small amounts
as are common in connection with general office use in compliance with
applicable law.
5.2.3 Installation, Alterations or Additions. Except for the work specified
in Exhibit C or permitted in Section 5.1.5, not to make any installations,
alterations or additions in, to or on the Premises (including, without
limitation, buildings, lawns, planted areas, walks, roadways, parking and
loading areas) nor to permit the making of any holes in the walls, partitions,
ceilings or floors, nor permit the painting or placing of any exterior signs,
placards or other advertising media, awning, aerials, antennas, or flagpoles, or
the like, without on each occasion obtaining the prior written consent of
Landlord, and then only pursuant to plans and specifications approved by
Landlord in advance in each instance. Notwithstanding the foregoing, Tenant
shall be permitted to install, at its sole cost and expense, and after obtaining
all necessary approvals for the same, roof antennas and related
telecommunications equipment on the roof of the Building, such installations to
be made to not interfere with any such installations of Landlord or other
Tenant's. Landlord may require Tenant to remove any installations, alterations
or additions upon the expiration or earlier termination of this Lease.
In addition, except as expressly permitted in this Section, Tenant shall
not place any signs, placards, or the like on the Building or in the Premises
that will be visible from outside the Premises (including without limitation
both interior and exterior surfaces of windows). Subject to Tenant obtaining all
necessary approvals and permits therefor, Tenant at its sole cost and expense
may: a) erect one exterior sign containing Tenant's name and logo (and no
advertising or other material) in place of the present Getronics sign on the
northwest facade of the Building, b) add its name and logo (similar in size or
less to that of Landlord's name) to the monument sign on Concord Road, and (c)
add its name and logo to the glass front entrance door to the Premises. Tenant
acknowledges that Landlord may maintain its sign on the Concord Road Monument
and the Route 3 side of the Building. Plans and specifications, including,
without limitation, artwork, for such signs must be submitted to Landlord for
its written approval before installation, which approval shall not be
unreasonably withheld. In any event, the total area of Tenant's exterior sign
shall not exceed that proportion of the total area of exterior signage allowed
on the Building under zoning that the floor area of the Premises bears to the
total floor area of the Building. The costs of all interior and exterior signs
and the installation thereof, including the costs of any
20
required permits or approvals, shall be the responsibility of Tenant. The Tenant
shall comply at its own expense with the requirements of all laws and
regulations affecting the maintenance of Tenant's signs. Tenant shall remove all
signs upon termination of this Lease and shall return the Premises and the
Building to their condition prior to the placement or erection of said signs.
5.3 Landlord's Services. In general, Landlord shall maintain, repair and
replace the roof, structure and building systems, in good order and repair so as
to maintain and keep the Building and maintain the parking areas and other
improvements on the Lot as a first class office building. The level of repair,
upkeep, and performance of Landlord's services required hereunder shall be no
less than that required to at all times maintain the Building and the Lot in a
condition consistent with the condition of other first class office buildings in
the north of Boston suburban office market. Landlord shall provide hot and cold
water to the Premises and common areas of the Building for lavatory and ordinary
office purposes, HVAC services Monday through Friday from 7:00 A.M. to 6:00 P.M
and, at Tenant's expense, at such other times as requested in advance by Tenant,
and the cleaning services attached as Exhibit D. Landlord agrees to cause the
parking areas, driveways, and walkways on the Lot to be kept clear of
accumulations of dirt, litter, rubbish, ice and snow, cause the landscaping on
the Lot to be kept in a neat and attractive condition, keep the parking areas on
the Lot lighted as necessary and perform its obligations with respect to
maintenance and repair. Upon the request of Tenant from time to time, Landlord
shall use reasonable efforts to provide other services at hours other than the
times set forth above and Tenant shall reimburse Landlord as additional rent for
the cost of such services within thirty (30) days after invoice therefor.
Landlord shall have no obligation to provide utilities or equipment other than
the utilities and equipment within the Premises as of the Term Commencement Date
of this Lease. Except as shown on Exhibit B and Exhibit C, Tenant shall not,
without first having obtained Landlord's prior written consent, install or use
any additional air-conditioning or heating equipment in the Premises. In the
event that Tenant should require additional utilities, appliances, machines or
equipment, the installation, maintenance and costs thereof shall be Tenant's
sole obligation, provided that any such installation shall require the written
consent of Landlord, which consent Landlord shall not unreasonably withhold.
Landlord shall in no event be liable for failure to perform any of its
obligations under this Lease when prevented from doing so by causes beyond its
reasonable control, including without limitation labor dispute, breakdown,
accident, order or regulation of or by any governmental authority, or failure of
supply, or inability by the exercise of reasonable diligence to obtain supplies,
parts, or employees necessary to furnish services required under this Lease, or
because of war or other emergency, or for any cause due to any act, neglect, or
default of Tenant or Tenant's servants, contractors, agents, employees,
licensees or any person claiming by, through or under Tenant, and in no event
shall Landlord ever be liable to Tenant for any indirect, special or
consequential damages under the provisions of this Section 9.2 or any other
provision of this Lease.
ARTICLE VI: Casualty or Taking
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6.1 Termination. In the event that the Premises, or more than 25% thereof,
shall be taken by any public authority or for any public use, or shall be
destroyed or damaged by fire or casualty, or by the action of any public
authority, and the same cannot, in Landlord's reasonable judgment, be restored
within 180 days from such taking or casualty, then this Lease may be terminated
at the election of either Landlord or Tenant. Such election, which may be made
notwithstanding the fact that Landlord's entire interest may have been divested,
shall be made in the case of the Landlord, by the giving of notice by Landlord
to Tenant within 30 days after the right of election accrues, and in the case of
Tenant, by giving notice to Landlord within 30 days after the date of Landlord's
notice informing Tenant that the Premises cannot be restored within 180 days of
such casualty or taking.
6.2 Restoration. If neither Landlord nor Tenant exercises said election,
this Lease shall continue in force and a just proportion of the rent reserved,
according to the nature and extent of the damages sustained by the Premises,
shall be suspended or abated until the Premises, or what may remain thereof,
shall be put by Landlord in proper condition for use, which Landlord covenants
to do with reasonable diligence to the extent permitted by the net proceeds of
insurance recovered or damages awarded for such taking, destruction or damage
and subject to zoning and building laws or ordinances then in existence. "Net
proceeds of insurance recovered or damages awarded" refers to the gross amount
of such insurance or damages less the reasonable expenses of Landlord in
connection with the collection of the same, including without limitation, fees
and expenses for legal and appraisal services. If the Premises are not so
restored within 180 days, this Lease may be terminated by Tenant upon 30 days
prior written notice to Landlord but only if such restoration is not completed
prior to the expiration of the 30 day notice period.
6.3 Award. Irrespective of the form in which recovery may be had by law,
all rights to damages or compensation shall belong to Landlord in all cases.
Tenant hereby grants to Landlord all of Tenant's rights to such damages and
covenants to deliver such further assignments thereof as Landlord may from time
to time request. The provisions of this section shall not apply to damages for
Tenant's personal property and relocation expenses to the extent the same are
compensated by a separate award by the taking authority.
ARTICLE VII: Defaults
7.1 Events of Default. (a) If Tenant shall default in the performance of
any of its obligations to pay the Fixed Rent or Additional Rent hereunder and if
such default shall continue for 10 days after notice from Landlord designating
such default or if within 30 days after notice from Landlord to Tenant
specifying any other default or defaults Tenant has not commenced diligently to
correct the default or defaults so specified or has not thereafter diligently
pursued such correction to completion, or (b) if Tenant or any present or future
guarantor of all or any portion of Tenant's obligations under this Lease (a
"Guarantor") becomes insolvent or fails to pay its debts as they fall due, or
(c) if a trust mortgage or assignment is made by Tenant or by any Guarantor for
the benefit of creditors, or (d) if the leasehold estate under this Lease is
taken on
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execution, or by other process of law, or is attached or subjected to any other
involuntary encumbrance which are not released within 30 days after requested by
Landlord, or (e) if a receiver, trustee, custodian, guardian, liquidator or
similar agent is appointed with respect to Tenant or any Guarantor, or if any
such person or a mortgagee, secured party or other creditor takes possession of
the Premises or of any substantial part of the property of Tenant or of any
Guarantor, and, in either case, if such appointment or taking of possession is
not terminated within 30 days after it first occurs, or (f) if a petition is
filed by or with the consent of Tenant or of any Guarantor under any federal or
state law concerning bankruptcy, insolvency, reorganization, arrangement, or
relief from creditors, or (g) if a petition is filed against Tenant or against
any Guarantor under any federal or state law concerning bankruptcy, insolvency,
reorganization, arrangement, or relief from creditors, and such petition is not
dismissed within 30 days thereafter, or (h) if Tenant or any Guarantor which is
a corporation dissolves or is dissolved or liquidates or adopts any plan or
commences any proceeding, the result of which is intended to include dissolution
or liquidation, then, and in any of such cases, Landlord and the agents and
servants of Landlord lawfully may, in addition to and not in derogation of any
remedies for any preceding breach of covenant, immediately or at any time
thereafter and without demand or notice and with or without process of law
(forcibly, if necessary) enter into and upon the Premises or any part thereof in
the name of the whole or mail a notice of termination addressed to Tenant, and
repossess the same as of Landlord's former estate and expel Tenant and those
claiming through or under Tenant and remove its and their effects (forcibly, if
necessary) without being deemed guilty of any manner of trespass and without
prejudice to any remedies which might otherwise be used for arrears of rent or
prior breach of covenant, and upon such entry or mailing as aforesaid this Lease
shall terminate, Tenant hereby waiving all statutory rights (including without
limitation rights of redemption, if any, to the extent such rights may be
lawfully waived) and Landlord, without notice to Tenant, may store Tenant's
effects, and those of any person claiming through or under Tenant at the expense
and risk of Tenant, and, if Landlord so elects, may sell such effects at public
auction or private sale and apply the net proceeds to the payment of all sums
due to Landlord from Tenant, if any, and pay over the balance, if any, to
Tenant.
7.2 Remedies. In the event that this Lease is terminated under any of the
provisions contained in Section 7.1 or shall be otherwise terminated for breach
of any obligation of Tenant beyond any applicable cure periods, Tenant covenants
to pay forthwith to Landlord, as compensation, the excess of the total rent
reserved for the residue of the Term over the rental value of the Premises for
said residue of the Term. In calculating the rent reserved there shall be
included, in addition to the Fixed Rent and Additional Rent, the value of all
other considerations agreed to be paid or performed by Tenant for said residue.
Tenant further covenants as additional and cumulative obligations after any such
termination to pay punctually to Landlord all the sums and to perform all the
obligations which Tenant covenants in this Lease to pay and to perform in the
same manner and to the same extent and at the same time as if this Lease had not
been terminated. In calculating the amounts to be paid by Tenant pursuant to the
next preceding sentence Tenant shall be credited with the portion of any amount
paid to Landlord as compensation as in this Section 7.2 provided, allocable to
the corresponding portion of the Term
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and also with the net proceeds of any rent obtained by Landlord by reletting the
Premises, after deducting all Landlord's reasonable 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 may, but shall not be
obligated to, (i) relet the Premises or any part or parts thereof, for a term or
terms which may at Landlord's option be equal to or less than or exceed the
period which would otherwise have constituted the balance of the Term and may
grant such concessions and free rent as Landlord in its reasonable judgment
considers advisable or necessary to relet the same, (ii) make such alterations,
repairs and decorations in the Premises as Landlord in its reasonable judgment
considers advisable or necessary to relet the same, and (iii) keep the Premises
vacant unless and until Landlord is able to rent the Premises to a Tenant which
is at least as desirable and financially responsible as Tenant is on the date of
this Lease, on terms not less favorable to Landlord than those of this Lease. No
action of Landlord in accordance with the foregoing or failure to relet or to
collect rent under reletting shall operate or be construed to release or reduce
Tenant's liability as aforesaid. In lieu of any other damages or indemnity and
in lieu of full recovery by Landlord of all sums payable under all the foregoing
provisions of this Section 7.2, Landlord may by notice to Tenant, at any time
after this Lease is terminated under any of the provisions contained in Section
7.1 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, an amount equal to the aggregate of the Fixed Rent and
Additional Rent accrued in the 12 months ended next prior to such termination
plus the amount of rent of any kind accrued and unpaid at the time of
termination and less the amount of any recovery by Landlord under the foregoing
provisions of this Section 7.2 up to the time of payment of such liquidated
damages. Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove for and obtain in proceedings under any federal or
state law relating to bankruptcy or insolvency or reorganization or arrangement,
an amount equal to the maximum allowed by any statute or rule of law in effect
at the time when, and governing the proceedings in which, the damages are to be
proved, whether or not the amount be greater than the amount of the loss or
damages referred to above. Notwithstanding the above, the Landlord hereby agrees
to use reasonable efforts to relet the Premises from and after a termination of
the Lease under this Agreement and to otherwise mitigate its damages hereunder.
7.3 Remedies Cumulative. Any and all rights and remedies which either party
may have under this Lease, and at law and equity, shall be cumulative and shall
not be deemed inconsistent with each other, and any two or more of all such
rights and remedies may be exercised at the same time insofar as permitted by
law.
7.4 Landlord's Right to Cure Defaults. Landlord may, but shall not be
obligated to, cure, at any time, following the expiration of the applicable cure
period as set forth in Section 7.1 except in cases of emergency when no notice
shall be required, any default by Tenant under this Lease; and whenever Landlord
so elects, all costs and expenses incurred by Landlord, including reasonable
attorneys' fees, in curing a default shall be paid by Tenant to Landlord as
Additional Rent on demand, together with interest thereon at the rate provided
in Section 4.3 from the date
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of payment by Landlord to the date of payment by Tenant.
7.5 Effect of Waivers of Default. Any consent or permission by Landlord to
any act or omission which otherwise would be a breach of any covenant or
condition herein, or any waiver by Landlord of the breach of any covenant or
condition herein, shall not in any way be held or construed (unless expressly so
declared) to operate so as to impair the continuing obligation of any covenant
or condition herein, or otherwise, except as to the specific instance, operate
to permit similar acts or omissions. The failure of Landlord to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease shall not be deemed a waiver of such violation nor
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of an original violation. The receipt by
Landlord of rent with knowledge of the breach of any covenant of this Lease
shall not be deemed to have been a waiver of such breach by Landlord, or by
Tenant, unless such waiver be in writing signed by the party to be charged. No
consent or waiver, express or implied, by Landlord to or of any breach of any
agreement or duty shall be construed as a waiver or consent to or of any other
breach of the same or any other agreement or duty.
7.6 No Accord and Satisfaction. No acceptance by Landlord of a lesser sum
than the Fixed Rent, Additional Rent or any other charge then due shall be
deemed to be other than on account of the earliest installment of such rent or
charge due, unless Landlord elects by notice to Tenant to credit such sum
against the most recent installment due, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent or other
charge be deemed a waiver, an agreement or an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such installment or pursue any other remedy in this
Lease provided.
ARTICLE VIII: Mortgages
8.1 Rights of Mortgage Holders. The word "mortgage" as used herein includes
mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances, and modifications, consolidations, extensions,
renewals, replacements and substitutes thereof. The word "holder" shall mean a
mortgagee, and any subsequent holder or holders of a mortgage. Until the holder
of a mortgage shall enter and take possession of the Premises for the purpose of
foreclosure, such holder shall have only such rights of Landlord as are
necessary to preserve the integrity of this Lease as security. Upon entry and
taking possession of the Premises for the purpose of foreclosure, such holder
shall have all the rights of Landlord. Notwithstanding any other provision of
this Lease to the contrary, including without limitation Section 9.4, no such
holder of a mortgage shall be liable either as mortgagee or as assignee, to
perform, or be liable in damages for failure to perform, any of the obligations
of Landlord unless and until such holder shall enter and take possession of the
Premises for the purpose of foreclosure, and such holder shall not in any event
be liable to perform or for failure to perform the obligations of Landlord under
Section 3.1. Upon entry for the purpose of foreclosure, such holder shall be
liable to perform all of the obligations of Landlord accruing
25
from and after such entry (except for the obligations under Sections 3.1 and 3.5
which such holder shall in no event be obligated to perform), subject to and
with the benefit of the provisions of Section 9.4, provided that a
discontinuance of any foreclosure proceeding shall be deemed a conveyance under
said provisions to the owner of the Premises. No Fixed Rent, Additional Rent or
any other charge shall be paid more than 30 days prior to the due dates thereof
and payments made in violation of this provision shall (except to the extent
that such payments are actually received by a mortgagee in possession or in the
process of foreclosing its mortgage) be a nullity as against such mortgagee and
Tenant shall be liable for the amount of such payments to such mortgagee. The
covenants and agreements contained in this Lease with respect to the rights,
powers and benefits of a holder of a mortgage (including, without limitation,
the covenants and agreements contained in this Section 8.1) constitute a
continuing offer to any person, corporation or other entity, which by accepting
a mortgage subject to this Lease, assumes the obligations herein set forth with
respect to such holder; such holder is hereby constituted a party of this Lease
as an obligee hereunder to the same extent as though its name were written
hereon as such; and such holder shall be entitled to enforce such provisions in
its own name. Tenant agrees on request of Landlord to execute and deliver from
time to time any agreement which may be necessary to implement the provisions of
this Section 8.1.
8.2 Lease Superior or Subordinate to Mortgages. This Lease is and shall
continue to be subject and subordinate to any presently existing mortgage or
mortgages secured by the Premises, and to any and all advances hereafter made
thereunder, and to the interest of the holder or holders thereof in the
Premises. The holder of any such presently existing mortgage shall have the
election to subordinate the same to this Lease, exercisable by filing with the
appropriate recording office a notice of such election, whereupon this Lease
shall have priority over such mortgage. A copy of such filing shall be given to
Tenant. Such election by the holder of any presently existing mortgage shall not
affect priority with respect to this Lease of any other presently existing
mortgage. Any mortgage or other voluntary lien or other encumbrance recorded
subsequent to the recording of the notice or short form referred to in Section
9.3 shall be subject and subordinate to this Lease unless Landlord and the
holder of any such subsequent mortgage and the holders of all mortgages prior to
such subsequent mortgage elect to subordinate this Lease to such subsequent
mortgage and to any and all advances thereafter made thereunder and to the
interest of the holder thereof in the Premises, such election to be exercisable
by Landlord and all such holders by filing with the appropriate recording office
(a) a notice of such election and (b) an agreement between the holder of such
subsequent mortgage and Tenant, consented to by holders of all mortgages having
priority over such subsequent mortgage, by the terms of which such holder will
agree to recognize the rights of Tenant under this Lease and to accept Tenant as
tenant of the Premises under the terms and conditions of this Lease in the event
of acquisition of title by such holder through foreclosure proceedings or
otherwise and Tenant will agree to recognize the holder of such subsequent
mortgage as Landlord in such event, which agreement shall be made expressly to
bind and inure to the benefit of the successors and assigns of Tenant and of
such holder and upon anyone purchasing said Premises at any foreclosure sale
brought by such holder. Tenant and Landlord agree to execute and deliver any
appropriate instruments necessary to carry out the agreements contained in this
Section 8.2. Any such
26
subsequent mortgage to which this Lease is subordinated may contain such terms,
provisions and conditions as the holder deems usual or customary. Landlord
agrees to obtain a Subordination, Non-disturbance and Attornment Agreement from
the holder of any present or subsequent mortgage encumbering the Premises.
Landlord and Tenant agree that the form of such agreement shall be in a form
that is reasonably and customarily used by institutional lenders for buildings
similar to the Building, so long as such form of agreement provides that such
holder shall agree not to disturb Tenant's possession of the Premises under this
Lease and to otherwise respect all of Tenant's rights under this Lease, and
Tenant shall agree to attorn to such holder as landlord under this Lease.
ARTICLE IX: Miscellaneous Provisions
9.1 Notices from One Party to the Other. All notices required or permitted
hereunder shall be in writing and addressed, if to the Tenant, at the Original
Address of Tenant or such other address as Tenant shall have last designated by
notice in writing to Landlord and, if to Landlord, at the Original Address of
Landlord or such other address as Landlord shall have last designated by notice
in writing to Tenant. Any notice shall be deemed duly given upon receipt or
refusal when mailed to such address postage prepaid, registered or certified
mail, return receipt requested, or when delivered to such address by hand or by
overnight carrier service with receipt
9.2 Quiet Enjoyment. Landlord agrees that upon Tenant's paying the rent and
performing and observing the terms, covenants, conditions and provisions on its
part to be performed and observed, Tenant shall and may peaceably and quietly
have, hold and enjoy the Premises during the Term without any manner of
hindrance or molestation from Landlord or anyone claiming under Landlord,
subject, however, to the terms of this Lease.
9.3 Lease not to be Recorded. Tenant agrees that it will not record this
Lease. Both parties shall, upon the request of either, execute and deliver a
notice or short form of this Lease in such form, if any, as may be permitted by
applicable statute. If this Lease is terminated before the Term expires the
parties shall execute, deliver and record an instrument acknowledging such fact
and the actual date of termination of this Lease, and Tenant hereby appoints
Landlord its attorney-in-fact, coupled with an interest, with full power of
substitution to execute such instrument.
9.4 Bind and Inure; Limitation of Landlord's Liability. The obligations of
this Lease shall run with the land, and this Lease shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. No owner of the Premises shall be liable under this Lease except for
breaches of Landlord's obligations occurring while owner of the Premises. The
obligations of Landlord shall be binding upon the assets of Landlord which
comprise the Premises but not upon other assets of Landlord. No individual
partner, trustee, stockholder, officer, director, employee or beneficiary of
Landlord shall be personally liable under this Lease and Tenant shall look
solely to Landlord's interest in the Premises and proceeds thereof, and also any
insurance coverage, as provided herein in pursuit of its remedies upon an
27
event of default hereunder, and the general assets of Landlord and of the
individual partners, trustees, stockholders, officers, employees or
beneficiaries of Landlord shall not be subject to levy, execution or other
enforcement procedure for the satisfaction of the remedies of Tenant. The next
preceding sentence shall not limit the right of Tenant to name Landlord or any
individual partner or trustee thereof as party defendant in any action or suit
in connection with this Lease so long as no personal money judgment shall be
asked for or taken against any individual partner, trustee, stockholder,
officer, employee or beneficiary of Landlord beyond their interest in the
Premises and proceeds thereof, and also any insurance coverage as provided
herein.
9.5 Acts of God. In any case where either party hereto is required to do
any act, delays caused by or resulting from Acts of God, war, civil commotion,
fire, flood or other casualty, labor difficulties, shortages of labor, materials
or equipment, government regulations, unusually severe weather, or other causes
beyond such party's reasonable control shall not be counted in determining the
time during which work shall be completed, whether such time be designated by a
fixed date, a fixed time or a "reasonable time", and such time shall be deemed
to be extended by the period of such delay.
9.6 Landlord's Default. Landlord shall not be deemed to be in default in
the performance of any of its obligations hereunder unless it shall fail to
perform such obligations and such failure shall continue for a period of 30 days
following receipt of notice from Tenant or such additional time as is reasonably
required to correct any such default after notice has been given by Tenant to
Landlord specifying the nature of Landlord's alleged default. Landlord shall not
be liable in any event for incidental or consequential damages to Tenant by
reason of any default by Landlord hereunder, whether or not Landlord is notified
that such damages may occur. Tenant shall have no right to terminate this Lease
for any default by Landlord hereunder and no right, for any such default, to
offset or counterclaim against any rent due hereunder except as specifically
provided in this section. If, after notice of default duly given in accordance
with this section, Landlord has failed to cure the alleged default within 30
days or such longer notice as is reasonably necessary to cure the same, Tenant
may, but shall not be required perform such action as is reasonably necessary to
cure such default. Landlord agrees to pay on demand Tenant's expenses, including
reasonable attorneys' fees, incurred in curing any default by Landlord pursuant
to Section 5.1.9 In the event Landlord fails to pay the same and Tenant obtains
a final judgment for the same in from a court of competent jurisdiction from
which all appeal periods have expired without appeal having been taken, the
amount due under such judgment may be offset the amount due under such judgment
from the next succeeding payment(s) of Fixed Rent and Additional Rent due
hereunder until the full amount of such judgment has been so applied or
otherwise reimbursed to Tenant.
9.7 Brokerage. Tenant warrants and represents that it has had no dealings
with any broker or agent in connection with this Lease other than CB Richard
Ellis and Meredith and Grew and covenants to defend with counsel approved by
Landlord, hold harmless and indemnify Landlord from and against any and all
cost, expense or liability for any compensation, commissions and
28
charges claimed by any broker or agent with respect to Tenant's dealings in
connection with this Lease or the negotiation thereof. Landlord agrees to pay
the brokerage fees due to Meredith and Grew and CB Richard Ellis pursuant to its
agreement with Meredith and Grew.
9.8 Applicable Law and Construction.
9.8.1 Applicable Law. This Lease shall be governed by and construed in
accordance with the laws of the state in which the Premises are located. If any
term, covenant, condition or provision of this Lease or the application thereof
to any person or circumstances shall be declared invalid, or unenforceable by
the final ruling of a court of competent jurisdiction having final review, the
remaining terms, covenants, conditions and provisions of this Lease and their
application to persons or circumstances shall not be affected thereby and shall
continue to be enforced and recognized as valid agreements of the parties, and
in the place of such invalid or unenforceable provision, there shall be
substituted a like, but valid and enforceable provision which comports to the
findings of the aforesaid court and most nearly accomplishes the original
intention of the parties.
9.8.2 No Other Agreement. There are no oral or written agreements between
Landlord and Tenant affecting this Lease. This Lease may be amended, and the
provisions thereof may be waived or modified, only by instruments in writing
executed by Landlord and Tenant.
9.8.3 No Representations by Landlord. Neither Landlord nor any agent 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 granted to Tenant except as herein expressly set
forth.
9.8.4 Titles. The titles of the several Articles and Sections contained
herein are for convenience only and shall not be considered in construing this
Lease.
9.8.5 "Landlord" and "Tenant". Unless repugnant to the context, the words
"Landlord" and "Tenant" appearing in this Lease shall be construed to mean those
named above and their respective heirs, executors, administrators, successors
and assigns, and those claiming through or under them respectively. If there be
more than one tenant the obligations imposed by this Lease upon Tenant shall be
joint and several.
9.9 Submission Not an Offer. The submission of a draft of this Lease or a
summary of some or all of its provisions does not constitute an offer to lease
or demise the Premises, it being understood and agreed that neither Landlord nor
Tenant shall be legally bound with respect to the leasing of the Premises unless
and until this Lease has been executed by both Landlord and Tenant and a fully
executed copy delivered.
ARTICLE X
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10.1 Extension Option. Tenant may elect to extend the term of this Lease
for two (2) five (5) year periods (each such period being referred to herein as
an "Extension Term"), by giving Landlord notice of such election no later than
twelve (12) months before the then scheduled expiration of the Lease Term,
provided that on the date such notice is given and on the commencement date of
the Extension Term, Tenant is not in default after the expiration of all
applicable notice and/or grace periods and Tenant is in occupancy of the
majority of the original Premises leased hereunder. Such extension shall be upon
the same terms, covenants, and conditions contained in this Lease except that
Tenant shall have no further right to extend the Lease Term beyond the 2nd
Extension Term and except that the Base Rent for the Extension Term shall be at
the greater of (a) the then current Annual Fixed Rent Rate or (b) a rate equal
to the then fair market rent. Fair market rent shall be equal to the value of
comparable space in comparable properties in the immediate area of the Property.
Upon Tenant election to extend, Landlord shall promptly provide in writing the
rent (the "Landlord's Rental Rate") at which Landlord is willing to lease the
Premises for the Extension Term. If Landlord and Tenant are unable to agree on
the amount of such fair market rent by the date that is thirty (30) days after
the date Landlord has provided Landlord's Rental Rate, then Tenant may either
(a) revoke its notice to extend by written notice to Landlord given on or before
the end of such 30 day period, or (b) proceed to determine the fair market rent
as follows. If Tenant does not provide a revocation notice within 30 days of its
exercise notice, Tenant shall promptly specify in writing the rent (the
"Tenant's Rental Rate") which Tenant is willing to pay for the Premises for the
Extension Term and the amount of the fair market rent shall be established by
appraisal in the following manner. The Landlord and Tenant shall each appoint
one qualified real estate appraiser within 45 days of Tenant's election notice
and the two appraisers so appointed shall determine the fair market rent. If
such appraisers are unable to agree on the amount of such fair market rent
within the 30-day period after the appointment of the latter, they shall appoint
a third appraiser within 10 days of the expiration of such period, who shall be
instructed to select, as between the rents chosen by the two appraisers, the
rent that is closest to the third appraiser's estimate of fair market rent. The
fair market rent shall be the amount so selected by the third appraiser and the
rent so determined shall be conclusive on Landlord and Tenant. Each party shall
bear the cost of its appraiser, and the cost of the third appraisal shall be
split equally between the parties; provided that if the rental rate as so
determined is equal to or greater than Landlord's Rental Rate, then Tenant shall
pay the entire cost of all appraisers and if such rate as so determined is equal
to or less than Tenant's Rental Rate, then Landlord shall pay the entire cost of
all appraisers. Until such time as the fair market rent is so determined, Tenant
shall pay monthly Base Rent during the Extension Term at the rate in effect
during the last month of the original Term with an appropriate adjustment once
the fair market rent is determined.
ARTICLE XI
11.1 Expansion Rights and Obligations. In the event Landlord decides to
make other premises in the Building available for lease, Tenant shall have a
right of first offer to lease such
30
premises pursuant to the provisions of this Section 11. Prior to marketing of
such other premises in the Building, Landlord shall provide written notice to
Tenant of the square footage and proposed terms of the premises available for
lease (the "Expansion Premises"). Tenant shall have 30 days from the date of
Landlord's notice to provide written notice to Landlord that Tenant desires to
lease the Expansion Premises on the terms set forth in Landlord's notice (except
that under all circumstances if Tenant leases the Expansion Premises the term of
the lease with respect to the Expansion Premises shall be coterminous with the
term of the Lease). If Tenant provides such notice, Tenant shall have 30 days
from the date of Tenant's notice to enter a lease amendment for the Expansion
Premises prepared by Landlord reflecting the terms of Landlord's notice. If
Tenant fails to either provide its notice or to execute and deliver the required
lease amendment within the time required, Landlord shall be free to lease the
Expansion Premises to any party on terms not more favorable to the tenant than
those described in Landlord's notice or, if Tenant has not agreed to such terms
but has made a counteroffer to Landlord, on terms not more favorable than the
terms of Tenant's counteroffer. If the terms of any subsequent agreement to
lease the Expansion Premises to another tenant are more favorable to the tenant
than the terms contained in the original Landlord's notice or in Tenant's
counteroffer, Landlord shall be required to again initiate the procedure
provided for in this Section and allow Tenant the right to lease the Expansion
Premises pursuant to the terms of such more favorable agreement. Tenant's rights
under this Section shall only apply if at both the time of delivery of Tenant's
notice and at the time of execution of the lease amendment for the Expansion
Premises there exists no event of default that remains uncured, and Tenant
continues to occupy more than 50% of the original Premises leased hereunder. In
the event Landlord makes premises available for lease to Tenant pursuant to this
Section and Tenant elects not to lease the same, Tenant shall have no further
right of first offer pursuant to this Section for those premises, but the
provisions of this Section shall apply to any other premises in the Building
that may subsequently become available for lease, so long as Tenant continues to
comply with the conditions set forth is this Section.
WITNESS the execution hereof under seal as of the day and year set forth in
Section 1.1.
Landlord: GetronicsWang Co.; LLC Tenant: Millipore Corporation
By: /s/ William J. Clark By: /s/ J. Edward Lary
--------------------------------- ------------------------
Print Name: William J. Clark Print Name: J. Edward Lary
Title: VP & CFO NA Title: Vice President
Hereunder duly authorized Hereunder duly authorized
31
Exhibit A
Plan Showing the Premises
See the plans prepared by ADD Inc. dated August 7, 2002 attached hereto and
incorporated by reference
32
Exhibit A-1
Included Furniture
Professional Office
8'- 4" x 8' - 4" Herman Miller "ETHOSPACE" Cubicle w/Soft White and Mezzotint
Blue Wash Fabric Covered Panels
Consists: 2 - 48" x 13" Storage Units, Navy Blue
2 - 48" x 24" Worksurfaces, Soft White
1 - 24" x 48" Corner Worksurface, Soft White
1 - Pedestal Freestanding File BBF 19" x 14" x 26"
Quantity - 100
Hawaii
12' Oak Table
14 Equa Chairs
70" x 24" Oak Credenza
Built-in Powered Projection Screen
Barbados
84" Round Oak Table
10 Equa Chairs
70" x 24" Oak Credenza
Built-in Powered Projection Screen
Cancun
72" Round Oak Table
Miscellaneous
2 - 72" Round Tables
2 120" Oak Table
4 Credenzas
3 36" Round Tables
10 Equa Chairs
Lobby
4 Chairs
1 Table
Board Room
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All Audio Visual Equipment including screens and monitor
All assets included in this exhibit become the property and
responsibility of Millipore on commencement.
Date
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Exhibit B
Landlord's Work
Item Completion Date
Deliver possession of Premises, broom clean and free of occupants September 1, 2002*
Install doorway, demising wall and door at first floor corridor September 15, 2002
Install security card reader in elevator and stairways September 15, 2002
*Legal Library to be delivered by September 30, 2002 and the UPS Room on a date
to be mutually agreed by Landlord and Tenant
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Exhibit C
Tenant's Work
Landlord agrees to approve within 5 business days of receipt the building plans
and specifications showing Tenant's Work, so long as such plans and
specifications are consistent with the space plans attached hereto and
incorporated by reference and are prepared and require construction in
accordance with sound engineering practices for office buildings similar to the
Building.
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EXHIBIT D
LANDLORD'S CLEANING SERVICES
GETRONICS
290 Concord Rd.
Billerica, MA 01821
MAIN LOBBY, COMMON AREAS, ELEVATORS, CORRIDORS
Daily:
Spot clean carpeting to remove stains and spills.
Clean glass entrance doors.
Dust or vacuum lobby furniture.
Sweep and mop lobby floors.
Sweep outside entranceways.
Clean and polish all mirrors and glass.
Vacuum carpeting.
Wash all rubber mats.
Clean all elevators wash or vacuum floor; wipe down walls and doors.
Spot clean any metal work in lobby.
Spot clean any metal work surroundings building entrance doors.
Dust furniture, fixtures, office equipment, ledges, book, shelves and
windowsills.
Weekly:
All resilient tile floors in public areas to be treated equivalent
spray buffing.
CAFETERIA, CONFERENCE, CUSTOMER CENTER AND SERVICE ROOMS:
Daily: Monday through Friday
Sweep and wet mop cafeteria service area floor.
Clean tables, chairs in cafeteria.
Sweep, wet mop cafeteria floors.
Vacuum carpeting.
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Daily: Monday through Friday cont.
Spot clean carpeting to remove stains and spills.
Dust furniture, textures, office equipment, ledges, bookshelves and
windowsills.
Clean vending tables, counter tops in service rooms.
Empty recycle containers as required and bring to basement.
Empty wastebaskets, replace liners and bring trash to
dumpsters.
Monthly:
Machine scrub service area ceramic floor.
OFFICE AREA
Daily: Monday through Friday inclusive, Legal Massachusetts Holiday excluded.
Hand dust and wipe clean with treated cloths all horizontal surfaces
including furniture, office equipment, window sills, doors ledges
Chair rails and converter tops, within normal reach.
Clean kitchenette tables, chairs, sweep and wash floors.
Sweep and damp mop all uncarpeted areas using a treated dust mop.
Weekly:
Vacuum all rugs and carpets.
Dust coat racks, and the like.
Wash clean all water fountains
Remove all finger marks from private entrance doors, light switches and
doorways.
Hand dust all grill work within normal reach.
Sweep and damp mop all uncarpeted areas using a treated dust mop.
Treat all resilient tile floors equivalent to spray buffing.
Three Times A Week:
Empty all receptacles and remove trash to designated area, wash
receptacles as necessary.
Quarterly:
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Dust all picture frames, charts, graphs and similar wall hangings.
Dust all vertical surfaces such as walls, partitions, doors and ducts.
Dust all exposed pipes, ducts and high moldings.
Dust all Venetian blinds.
Machine scrub and recoat V.C.T. floors.
DATA CENTER
Weekly:
Empty all recycle containers daily.
Remove and discard empty boxes daily.
Empty all trash containers.
Dry mop all raised floor tiles.
Thoroughly wet mop all raised floor titles (Particular attention should
be used in removing scuffmarks.
Clean all doors and door glass.
FITNESS CENTER
Daily:
Monday through Friday inclusive. Legal Massachusetts Holiday excluded
Vacuum all carpeted areas.
Empty wastebaskets and replace liners.
Dust/clean all office furniture/phones etc.
Dust windowsills, ledges and brown baseboards.
Spot clean carpet of soluble spots.
Spot clean walls and doors.
Wipe down front desk.
Remove finger and scuff marks from walls, door and glass.
Clean mirrors and glass as needed.
Clean entrance doors handles and glass.
Clean back mat under free weights.
AEROBICS ROOM
Dry mop floor, clean mirrors, dust windows sills.
LOCKER ROOMS
Refill tissue, paper towels, soap dispensers, and sanitary dispensers.
Sweep and wash floors with germicide.
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Vacuum carpet of floor and benches.
Wash mirrors, vanities, all stainless steel, flushometers and piping.
Clean toilets and sinks.
Clean walls of toilet stalls.
LOCKER ROOMS cont.
Empty all wastes baskets and receptacles.
Clean showers with disinfectant.
Wipe off stools.
Clean weight scales.
Dust closet top.
EXERCISE AREA
Vacuum between, behind and under equipment where accessible.
Weekly:
Clean ceiling vents.
Wipe down shower curtains.
Monthly:
Wash locker fronts, insides and tops.
Machine scrub tile floor areas in locker rooms.
Dust the following: light fixtures, exit signs, fire extinguishers,
outlets/plugs, bulleting board and clocks.
STAIRWELLS
Daily
Vacuum stairs.
RESTROOMS
Daily:
Monday through Friday inclusive, Legal Massachusetts Holiday excluded.
Sweep and damp mop floor.
Clean all mirrors, powder shelves, dispensers and receptacles, bright
work, flushometers, piping and toilet seats hinges.
Wash both sides of toilet seats.
Wash all basins, bowls and urinals.
Dust clean all powder room fixtures.
Empty and clean paper towel and sanitary receptacles.
Remove waste paper and refuse to designated area.
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RESTROOMS Cont.
Refill soap dispensers, towel dispensers, vending sanitary dispensers
(materials to be supplied by Landlord).
A sanitary solution will be used in all lavatories cleaning.
Monthly:
Machine scrub lavatory floor.
Wash all partitions and tile walls.
Dust exhaust vents and ceiling diffusers.
DAY PORTER SERVICES
Daily:
Police all outdoors ground and buildings entrances for trash and debris
and remove the same.
Clean all entrance glass, directories, ash urn and bright work.
Vacuum all entrances and elevator cabs.
Keep all restrooms stocked with paper products.
Keep areas around dumpster neat and clean.
Keep trash rooms neat and clean.
Report problems with fixtures, doors, light bulbs, etc.
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