Exhibit 10-23
LEASE
DATED: FEBRUARY 8, 1996
MASSACHUSETTS INSTITUTE OF TECHNOLOGY, LESSOR
ANALOG DEVICES, INC., LESSEE
21 OSBORN STREET, CAMBRIDGE, MASSACHUSETTS
TABLE OF CONTENTS
1.0 Parties and Premises.................................................. 1
1.1 Parties and Premises............................................. 1
1.2 Common Areas..................................................... 1
1.3 Lessee's Option to Lease Additional Space........................ 2
1.4 Lessee's Right of First Refusal.................................. 2
1.5 Signs............................................................ 2
2.0 Term ................................................................. 3
2.1 Term; Commencement Date.......................................... 3
2.2 Extension Option................................................. 3
3.0 Rent ................................................................. 3
3.1 Payment of Rent.................................................. 3
3.2 Computation of Basic Rent........................................ 4
4.0 Permitted Uses........................................................ 5
5.0 Taxes; Operating Expenses............................................. 6
5.1 Taxes............................................................ 6
5.2 Operating Expenses............................................... 7
5.3 Payment of Taxes and Operating Expenses.......................... 8
5.4 Abatement of Taxes............................................... 9
6.0 Meters for Utilities.................................................. 10
7.0 Insurance............................................................. 10
7.1 Public Liability Insurance....................................... 10
7.2 Casualty Insurance............................................... 10
7.3 Certificate of Insurance......................................... 10
7.4 Lessor's Insurance............................................... 11
7.5 Waiver of Subrogation............................................ 11
7.6 Waiver of Rights................................................. 12
8.0 Assignment and Subletting............................................. 12
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9.0 Parking............................................................... 15
10.0 Late Payment of Rent.................................................. 15
11.0 Lessee's Covenants.................................................... 15
12.0 Casualty and Eminent Domain........................................... 21
12.1 Substantial Taking............................................... 21
12.2 Partial Taking................................................... 21
12.4 Substantial Casualty............................................. 22
12.5 Repair and Restoration........................................... 23
13.0 Defaults; Events of Default; Remedies................................. 23
13.1 Defaults; Events of Default...................................... 23
13.2 Termination...................................................... 24
13.3 Survival of Covenants............................................ 25
13.4 Damages.......................................................... 25
13.5 Right to Relet................................................... 26
13.6 Right to Equitable Relief........................................ 27
13.7 Right to Self Help............................................... 27
13.8 Further Remedies................................................. 27
14.0 Construction.......................................................... 28
15.0 Lessor's Right of Entry............................................... 28
16.0 Real Estate Broker.................................................... 28
17.0 Notices............................................................... 28
18.0 No Waivers............................................................ 29
19.0 Ground Leases; Mortgages.............................................. 29
19.1 Rights of Ground Lessors and Mortgagees.......................... 29
19.2 Lease Subordinate................................................ 30
20.0 Notice of Lease; Estoppel Certificates................................ 31
21.0 Holding Over.......................................................... 31
22.0 Force Majeure......................................................... 31
23.0 Entire Agreement...................................................... 31
24.0 Successors and Assigns................................................ 32
25.0 Applicable Law, Severability and Construction......................... 32
26.0 Authority............................................................. 32
27.0 Work to be Performed by Polaroid Corporation.......................... 32
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EXHIBIT A - PREMISES....................................................... 34
EXHIBIT B - WORK LETTER.................................................... 35
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LEASE
Dated: February 8, 1996
1.0 Parties and Premises.
1.1 PARTIES AND PREMISES. MASSACHUSETTS INSTITUTE OF TECHNOLOGY
("Lessor") hereby LEASES unto ANALOG DEVICES, INC. ("Lessee"),
the following premises:
The entire basement, first and second floors, containing
68,135 square feet of rentable area (the "Premises") of
the building known as and numbered 21 Osborn Street,
Cambridge, Massachusetts, containing a total of 117,130
rentable square feet (the "Building"), which is located
on the parcel of land described on EXHIBIT A attached
hereto (the "Land"),
together with the benefit of, and subject to (as the case may
be) all rights, easements, covenants, conditions,
encumbrances, encroachments and restrictions of record as of
the date of this Lease. Lessor shall have the right, without
the necessity of obtaining Lessee's consent thereto or joinder
therein, to grant, permit, or enter into during the term of
this Lease such additional rights, easements, covenants,
conditions, encumbrances, encroachments and restrictions with
respect to the Land as Lessor may deem appropriate, PROVIDED
THAT no such rights, easements, covenants, conditions,
encumbrances, encroachments or restrictions shall materially
affect Lessee's use of the Premises for the "Permitted Uses"
(as defined in Section 4.0 below).
Lessor hereby reserves the right to use the first floor lobby
and service and freight elevators in the Building in common
with the Lessee and the right to pass through the Premises as
reasonably necessary for access to such elevators in
accordance with Section 15 below.
Lessor hereby further reserves the right to maintain, use,
repair and replace pipes, ducts, wires, meters and any other
equipment, machinery, apparatus and fixtures located within
the Premises and serving other parts of the Building. Lessee,
its employees and invitees shall have access to the Premises
at all times, subject to Lessor's reasonable security
procedures.
1.2 COMMON AREAS. Lessor also grants to Lessee, and Lessee's
invitees, the right, in common with others
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entitled thereto, to use for the purposes for which they were
designed, the common facilities of the Building, including but
not limited to, all entrances, elevator foyers, air shafts,
elevator shafts and elevators, stairwells and stairs,
passenger elevators, freight elevator, loading bays, and the
"Parking Area" (as defined in Section 9.0 below)
(collectively, the "Common Areas"). Lessee shall also have the
right to maintain gas storage tanks and associated piping
outside the Building on the Land for gas to be delivered to
the Premises, in compliance with the terms and conditions set
forth in this Lease.
1.3 LESSEE'S OPTION TO LEASE ADDITIONAL SPACE. Provided that both
(i) an "Event of Default" (as defined in Section 13.1 below)
has not occurred prior to the day on which Lessee purports to
exercise the Expansion Option or prior to the first date on
which the Expansion Space will be occupied, and (ii) the
Lessee named herein is actually occupying substantially the
entire Premises as of each of such dates, Lessee shall have
the right and option ("Expansion Option") to lease either the
entire third floor or the entire third and fourth floors of
the Building ("Expansion Space"); PROVIDED THAT Lessee's
occupancy and obligation to pay Rent therefor must commence,
if at all, during the first year of the Initial Term. This
option may be exercised by the Lessee by notice thereof to
Lessor, dispatched not less than sixty (60) days prior to the
date on which Lessee will take occupancy of the additional
space, and upon the exercise of this option, the Premises
shall include such space. Except for the change in Basic Rent
as described in Section 3.2 below, all of the terms and
conditions of this agreement shall apply in respect to the
additional space. The parties agree that the third floor
contains 24,030 square feet of rentable space and that the
fourth floor contains 24,965 square feet of rentable space.
1.4 LESSEE'S RIGHT OF FIRST REFUSAL. Notwithstanding the failure
of the Lessee to exercise its option under Section 1.3, if,
during the Term, Lessor decides to occupy the third and/or
fourth floors of the Building or to offer the space to a third
party, Lessee shall have a right of first refusal to lease
either the entire third floor or the entire third and fourth
floors of the Building for the Rent per Lease Year or portion
thereof which would have been due and payable for such space
and subject to the same conditions and on the same terms and
conditions as if the option had been exercised.
1.5 SIGNS. Lessee shall have the right to maintain one or more
signs on the Premises; PROVIDED THAT all signs
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shall comply with applicable Legal Requirements (as defined
below) and shall have been approved by Lessor in advance which
approval shall not be unreasonably withheld or delayed.
2.0 Term; Commencement Date; Extension Options.
2.1 TERM; COMMENCEMENT DATE. The initial term of this Lease (the
"Initial Term") shall commence on February 13, 1996, the
"Commencement Date," and expire on the day immediately
preceding the fifth anniversary thereof, unless sooner
terminated as hereinafter provided. For purposes of this
Lease, the phrase "Term" shall mean collectively (a) the
Initial Term, and (b) if Lessee duly exercises one or more
"Extension Option(s)", the "Extension Term" (as these phrases
are defined in Section 2.2 below).
2.2 EXTENSION OPTIONS. Provided that both (i) an "Event of
Default" (as defined in Section 13.1 below) has not occurred
prior to the day on which Lessee purports to exercise the
Extension Option or prior to the first day of the Extension
Term, and (ii) the Lessee named herein is actually occupying
substantially the entire Premises as of each of said dates,
Lessee shall have the option ("Extension Option") to extend
the Lease Term of this Lease for two additional periods of
five (5) years each (the "Extension Term(s)"), unless sooner
terminated as hereinafter provided, subject to all the terms
of this Lease except for the change in Basic Rent as provided
in Section 3.2 of this Lease.
Lessee shall exercise an Extension Option, if at all, by
giving written notice of exercise to Lessor not earlier than
twelve (12) months prior to, nor later than six (6) months
prior to, the last day of the Initial Lease Term or the first
Extension Term as applicable. If Lessee fails to give such
notice to Lessor within such time, Lessee shall be deemed to
have waived the right to exercise the applicable Extension
Option.
3.0 Rent.
3.1 PAYMENT OF RENT. Lessee shall pay Lessor, without offset or
deduction and without previous demand therefor, as items
constituting rent (collectively, "Rent"):
(a) Basic rent ("Basic Rent") at the rate hereinafter set
forth, in equal monthly installments, in advance,
commencing three months after the Commencement Date (the
"Rent Commencement Date") and continuing thereafter on
the first day of each
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calendar month or portion thereof during the Term. Basic
Rent shall be PRO-RATED for partial months occurring at
the beginning or the end of the Term, and, with respect
to the Additional Space, for any partial Lease Year at
the beginning of the Term; and
(b) All other costs, charges, or expenses which Lessee in
this Lease agrees to pay, or which Lessor pays or incurs
as the result of a default by Lessee hereunder,
including any penalty or interest which may be added for
nonpayment or late payment thereof as provided in this
Lease (collectively, "Additional Rent"). All recurring
payments of Additional Rent, such as payment on account
of "Operating Expenses" (as such term is hereinafter
defined), shall be due and payable on the same day on
which Basic Rent is due, except that "Taxes" (as such
term is hereinafter defined) shall be due and payable in
installments not later than ten (10) days before Lessor
is obliged to make installment payments to the City of
Cambridge without incurring interest and penalties but
not sooner than ten (10) days after receipt by Lessee of
written demand therefor from Lessor accompanied by a
copy of the current tax bill. Unless otherwise
specifically provided in this Lease, all non-recurring
items constituting Additional Rent shall be due and
payable within thirty (30) days after demand therefor by
Lessor.
All payments shall be made to Lessor or such agent, and at
such place, as Lessor shall, from time to time, in writing
designate, the following being now so designated:
Meredith & Grew Inc. as agent for
Massachusetts Institute of Technology
160 Federal Street
Boston, MA 02110-1710
3.2 COMPUTATION OF BASIC RENT. Basic Rent shall be due and payable
hereunder during the Initial Term and any Extension Term in
the amount of $1,000,008 per Lease Year, in installments of
$83,334 per month, except that Basic Rent for the first Lease
Year shall be $750,006 because of the three month rent free
period at the beginning of the Initial Term; PROVIDED THAT, if
Lessee exercises its option to lease additional space (the
"Additional Space") under Section 1.3 or its right of first
refusal therefor under Section 1.4, Basic Rent shall be
increased by $240,300 per Lease Year if exercised with respect
to the third floor only or by
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$489,950 per Lease Year if exercised with respect to both the
third and fourth floors, commencing on the date of occupancy
and subject to adjustment during any Extension Term as
follows:
for each Extension Term annual Basic Rent applicable to
the Additional Space shall be adjusted at the
commencement date as follows:
(i) The index used for calculation of any adjustment
shall be the official Consumer's Price Index, Boston
Area, all items, (1982-1984 = 100) published by the
Bureau of Labor Statistics, U.S. Department of Labor, or
its successor index should the Department of Labor cease
publishing the CPI.
(ii) Annual Basic Rent applicable to the Additional
Space for each Extension Term shall be the annual Basic
Rent therefor for the preceding five years of the Term
plus an additional amount as determined in paragraph
(iii).
(iii) The index for the month of November immediately
preceding the termination of the Initial Term or the
First Commencement Term as applicable shall be compared
to the index for the same month immediately preceding
the commencement of such five year term. The numerator
shall be the index for the later year and the
denominator shall be the index for the earlier year. The
result shall be multiplied by the current annual Basic
Rent for the Additional Space to determine the new
annual Basic Rent therefor.
As used in this Lease, "Lease Year" means the twelve (12)
month period commencing on the Commencement Date, or a
successive twelve (12) month period included in the Term
commencing on an anniversary of that day, but if the
expiration of the Term or the earlier termination of the Lease
does not coincide with the termination of such a twelve (12)
month period, the term "Lease Year" shall mean the portion of
such twelve (12) month period before such expiration or
termination.
4.0 PERMITTED USES. The Premises shall be used for the following
purposes (the "Permitted Uses") only and for no other:
light manufacturing (including, without limitation,
manufacturing, processing, assembly and packaging of
electronic components), research and development and
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office uses; in each case to the extent permitted as a matter
of right under the zoning ordinance of the City of Cambridge,
Massachusetts.
5.0 Taxes; Operating Expenses.
5.1 TAXES. Lessee shall pay as Additional Rent its pro rata share
of all taxes, special or general assessments and other
impositions and charges imposed by governmental authorities of
every kind and nature whatsoever, extraordinary as well as
ordinary and each and every installment thereof which shall or
may during the Term be charged, levied, laid, assessed,
imposed, become due and payable or become liens upon or for or
with respect to the Land or any part thereof and the Building
or the Premises, or appurtenances or equipment owned by Lessor
thereon or therein or any part thereof, or on this Lease, and
any tax based on a percentage, fraction or capitalized value
of the Rent (whether in lieu of or in addition to the taxes
hereinbefore described) (collectively, "Taxes"); provided
however that:
(a) if, by law, any Taxes may at the option of the taxpayer
be paid in installments, Lessee may pay the same in such
installments over such period as the law allows, and
Lessee shall only be liable for such installments as
shall become due during the Term of this Lease, PROVIDED
THAT the full amount of all Taxes attributable to the
Term shall be paid by Lessee in the event of an earlier
termination of this Lease due to a default of Lessee;
and
(b) all Taxes for the municipal fiscal years in which the
Term of this Lease shall begin and end shall be
apportioned so that Lessee shall pay only those portions
thereof which correspond with the portion of said year
as is within the Term hereby demised.
Taxes shall not include inheritance, estate, excise,
succession, transfer, gift, franchise, income, gross receipt,
or profit taxes except to the extent such are in lieu of or in
substitution for Taxes as now imposed on the Building, the
Land, the Premises or this Lease. Lessee's share of Taxes
shall be computed as follows: (i) with respect to the Building
and the land under the Building, a percentage equal to the
ratio of the number of rentable square feet occupied by the
Tenant in the Building to the number of rentable square feet
in the Building; and (ii) with respect to the remainder of the
Land, a percentage equal to the ratio of the number of parking
spaces allocated to the Premises under Section 9 to the
aggregate number of parking spaces on the Premises. The
parties hereby agree that rentable square
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feet for the Premises, the Building and the third and fourth
floors of the Building are as set forth in Sections 1.1 and
1.3 above. If Lessee takes occupancy of Additional Space under
its option or right of first refusal set forth in Section 1.3
and Section 1.4 during the course of any year of the Term,
Taxes for such year shall be determined separately for each
partial year before and after the date of occupancy.
5.2 OPERATING EXPENSES. Lessee shall pay as Additional Rent
Lessee's share as reasonably determined by the Lessor of all
expenses, costs, and disbursements of every kind and nature
(collectively, "Operating Expenses") which Lessor shall pay or
become obligated to pay in connection with the ownership,
operation and maintenance of the Building or the Land,
including all facilities in operation on the Commencement Date
and such additional facilities in subsequent years as may be
determined by Lessor to be necessary or beneficial for the
operation of the Building or the Land or the provision of
services to lessees, including, but not limited to:
(a) all salaries, wages, fringe benefits, payroll taxes and
workmen's compensation insurance premiums related
thereto of and for employees engaged in the operation of
the Building and the Land (with respect to employees who
are engaged in the operation of other properties as well
as the Building and the Land, these amounts shall be
pro-rated on the basis of the relative amount of time
spent by such employees on the various properties);
(b) painting, repairs, maintenance and cleaning of all
Common Areas;
(c) utilities (including, without limitation, electricity,
steam, water, sewer and gas) for all interior Common
Areas and lighting of exterior areas and the "Parking
Area" (as defined in Section 9.0 below);
(d) maintenance and repair of the Building heating and
cooling systems, the plumbing systems, the fire
detection and suppression systems, the electrical system
and the elevators;
(e) all maintenance, janitorial, and service agreements;
(f) all insurance, including the cost of casualty and
liability insurance applicable to the Parking Area, the
Land, the Building and Lessor's personal
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property used in connection therewith, including the
amount of any reasonable deductible payable by Lessor in
making repairs and restoration after a casualty;
(g) maintenance of landscaped areas and paved areas, and
snow removal;
(h) maintenance of the Building security system;
(i) management fees, PROVIDED THAT such fees are paid at
rates which are competitive with those commonly charged
for the management of comparable properties in
Cambridge, Massachusetts;
(j) capital items which are for the purpose of reducing
Operating Expenses or upgrading services or which are at
any time required by a governmental authority or the
provisions of any insurance policy which is first
adopted or first becomes applicable to the Premises, the
Building or the Land after the date of this Lease,
amortized over the reasonable life of the capital items
on a straight line basis with the reasonable life being
determined by Lessor in accordance with generally
accepted accounting principles;
(k) reasonable expenses incurred in pursuing an application
for an abatement of Taxes pursuant to Section 5.4 below
to the extent not deducted from the abatement, if any,
received; and
(l) legal (excluding legal fees with respect to lease
negotiations and enforcement of lease terms against
other lessees), accounting and other professional fees
and disbursements (excluding leasing commissions).
For so long as Lessee is the sole occupant of the Building,
Lessee shall be responsible for one hundred percent (100%) of
Operating Expenses.
5.3 PAYMENT OF TAXES AND OPERATING EXPENSES. Within a reasonable
time after the Commencement Date, and thereafter within a
reasonable time after the end of each fiscal year of the
Lessor (or portion thereof) included in the Term, Lessor shall
deliver to Lessee (i) a statement of actual Operating Expenses
and Taxes for the fiscal year just ended, together with
reasonable supporting documentation therefor, and (ii) a
budget of Operating Expenses and Taxes for the then-current
fiscal year based on the actual Operating Expenses and Taxes
for the preceding year and projected increases or
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decreases reasonably anticipated by Lessor. Commencing on the
first day of the first calendar month after the delivery to
Lessee of such budget, Lessee shall pay to Lessor, as
Additional Rent, on account of its share of anticipated
Operating Expenses for the then-current year, 1/12th of the
total annualized amount of Lessee's share of Operating
Expenses and shall pay to Lessor, as and when set forth in
Section 3.1, the appropriate percentage of Taxes. Lessor
reserves the right to revise the budget during any fiscal year
to cause it to more accurately reflect the actual Taxes or
Operating Expenses being paid or incurred by Lessor, and upon
any such revision the parties shall make adjustments in the
same time and manner as hereinafter provided for fiscal
year-end adjustments. Upon delivery to Lessee of the statement
of actual Operating Expenses and Taxes for the preceding
fiscal year, Lessor shall adjust Lessee's account accordingly.
If the total amount paid by Lessee on account of the preceding
fiscal year is less than the amount due hereunder, Lessee
shall pay the balance due within twenty (20) days after
delivery by Lessor of such statement. If the total amount paid
by Lessee on account of the preceding fiscal year exceeds the
amount due hereunder, such excess shall be credited by Lessor
against the monthly installments of Additional Rent next
falling due or refunded to Lessee upon the expiration or
termination of this Lease (unless such expiration or
termination is the result of an "Event of Default" (as defined
in Section 13.1 below)). Lessor's current fiscal year is July
1 - June 30, but Lessor reserves the right to change the
fiscal year at any time during the Term.
5.4 ABATEMENT OF TAXES. Lessor or Lessee may at any time and from
time to time make application to the appropriate governmental
authority for an abatement of Taxes. If such an application is
successful, Lessor shall (a) deduct from the amount of the
abatement all expenses incurred by it in connection with the
application, (b) pay to Lessee Lessee's pro rata share of the
abatement, with interest, if any, paid by the governmental
authority on such share, and (c) retain the balance, if any;
PROVIDED THAT, if Lessee made the application for such
abatement, Lessor shall pay to Lessee out of the proceeds
thereof Lessee's reasonable expenses incurred in connection
with the application before making the payment to Lessee
described in clause (b) of this Section or before Lessor
retains the amount described in clause (c) of this Section.
Lessor agrees to cooperate with Lessee in connection with an
application for an abatement of Taxes hereunder by Lessee at
no expense to the Lessor.
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6.0 METERS FOR UTILITIES. Lessor reserves the right to install meters
for all utilities provided to the Premises, at its own expense, and
charge Lessee for Lessee's actual use of metered services as
Additional Rent.
7.0 Insurance
7.1 PUBLIC LIABILITY INSURANCE. Lessee shall take out and maintain
in force throughout the Term (and for so long thereafter as
Lessee remains in occupancy) comprehensive public liability
insurance naming Lessor and persons claiming by, through or
under Lessor as additional insureds, against all claims and
demands for any injury to persons or property which may be
claimed to have occurred on the Premises, the Building, the
Land or on the ways adjoining the Land, in an amount which at
the beginning of the Term shall not be less than $1,000,000
for personal injury or death or property damage per
occurrence, and $3,000,000 in the aggregate for personal
injury or death or property damage, or such higher amounts as
Lessor thereafter determines to be consistent with sound
commercial practice in Cambridge. Such policy shall also
include contractual liability coverage covering Lessee's
liability assumed under this Lease.
7.2 CASUALTY INSURANCE. (a) Lessee shall be responsible to provide
its own coverage during the Lease Term for fire, vandalism,
malicious mischief, extended coverage and so-called all risk
coverage insurance insuring (i) all items or components of
"Alterations" (as defined in Section 11.0(f) below) which
Lessee is by this Lease either entitled to or required to
remove upon the expiration or earlier termination of this
Lease, and (ii) "Lessee's Property" (as defined in Section
11.0(h) below). Lessor shall not carry any insurance
concurrent in coverage and contributing in the event of loss
with any insurance required to be furnished by Lessee
hereunder if the effect of such separate insurance would be to
reduce the protection or the payment to be made under Lessee's
insurance.
(b) During any construction or alteration of the Building by
the Lessee, Lessee shall keep in full force and effect all
risk builder's risk insurance against loss or damage on a
completed value non-reporting basis from such hazards and in
such amounts as Lessor may reasonably require.
7.3 CERTIFICATE OF INSURANCE. The insurance required by Sections
7.1 and 7.2 above shall be placed with insurers reasonably
satisfactory to Lessor and authorized to do business in
Massachusetts. Such insurance shall provide
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that it shall not be amended or canceled with respect to the
additional insureds or certificate holders without twenty (20)
days' prior written notice to each of them. Lessee shall
furnish to Lessor certificates of insurance for all insurance
required to be maintained by Lessee under this Lease, together
with evidence satisfactory to Lessor of the payment of all
premiums for such policies. Lessee, at Lessor's request, shall
also deliver such certificates and evidence of payment of
premiums to the holder of any mortgage affecting the Land and
Building.
7.4 LESSOR'S INSURANCE. Lessor shall take out and maintain in
force throughout the Term, in a company or companies
authorized to do business in Massachusetts, casualty insurance
on the Building (exclusive of "Lessee's Property" (as defined
in Section 11.0(h) below) and all "Alterations" (as defined in
Section 11.0(f) below) which Lessee is by this Lease either
entitled to or required to remove upon the expiration or
earlier termination of this Lease, as to which Lessee is
required to maintain insurance pursuant to Section 7.2 above)
in an amount equal to the full replacement value of the
Building (exclusive of foundations and those items set forth
in the preceding parenthetical in this sentence), covering all
risks of direct physical loss or damage and so-called
"extended coverage" risks. This insurance may be maintained in
the form of a blanket policy covering the Building as well as
other properties owned by Lessor. Notwithstanding the
foregoing provisions of this Section 7.4, Lessor shall have
the right, at any time during the Term, to self-insure all or
any portion of the coverages required by this Section.
7.5 WAIVER OF SUBROGATION. To the extent to which a waiver of
subrogation clause is available, Lessor and Lessee shall
obtain a provision in all insurance policies carried by such
party covering the Premises, including but not limited to
contents, fire and casualty insurance, expressly waiving any
right on the part of the insurer against the other party. If
extra cost is chargeable for such provision, then Lessee shall
pay such extra charge. Notwithstanding the foregoing, with
respect to such portion of the Term during which Lessor elects
to self-insure under Section 7.4 above, then for purposes of
this Section 7.5, Lessor shall be deemed to have maintained
fire and all-risk coverage in an amount equal to one hundred
(100%) percent of the insurable value of the Building (subject
to the exceptions and exclusions set forth in Section 7.4
above) with a waiver of subrogation clause contained therein.
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7.6 WAIVER OF RIGHTS. All claims, causes of action and rights of
recovery for any damage to or destruction of persons, property
or business which shall occur on or about the Premises, the
Building or the Land, which result from any of the perils
insured under any and all policies of insurance maintained by
Lessor or Lessee, are waived by each party as against the
other party, and the officers, directors, employees,
contractors, servants and agents thereof, regardless of cause,
including the negligence of the other party and its respective
officers, directors, employees, contractors, servants and
agents, but only to the extent of recovery, if any, under such
policy or policies of insurance; PROVIDED, HOWEVER, that (i)
this waiver shall be null and void to the extent that any such
insurance shall be invalidated by reason of this waiver, and
(ii) with respect to such portion of the Term during which
Lessor elects to self-insure under Section 7.4 above, then for
purposes of this Section 7.6, Lessor shall be deemed to have
maintained fire and all-risk coverage in an amount equal to
one hundred (100%) percent of the insurable value of the
Building (subject to the exceptions and exclusions set forth
in Section 7.4 above).
8.0 ASSIGNMENT AND SUBLETTING. (a) Lessee shall not mortgage,
pledge, hypothecate, grant a security interest in, or
otherwise encumber this Lease or any sublease hereinafter
entered into by Lessee, or assign this Lease, or sublease the
Premises or any portion thereof (the term "sublease" shall be
deemed to include any arrangement pursuant to which a third
party is permitted by Lessee to occupy all or any portion of
the Premises), without obtaining, on each occasion, the prior
written consent of Lessor. Lessor agrees not to unreasonably
withhold or delay its consent to any request to assign or
sublet the Lessee interest hereunder.
(b) If Lessee wishes to assign this Lease or sublease all or
any portion of the Premises, Lessee shall so notify Lessor in
writing and request Lessor's consent thereto. Such notice
shall include (i) the name of the proposed assignee or
sublessee, (ii) a general description of the types of business
conducted by the proposed assignee or sublessee and a
reasonably detailed description of the business operations
proposed to be conducted in the Premises by such person or
entity, (iii) such financial information concerning the
proposed assignee or sublessee as Lessor may reasonably
require, and (iv) all terms and provisions upon which such
assignment or sublease is proposed to be made. Lessor shall
have thirty (30) days from the day on which it receives
Lessee's notice and such required information to give notice
to Lessee that either (i) Lessor consents to such assignment
or sublease, or (ii) Lessor withholds its consent to such
assignment or sublease, or (iii) where applicable, Lessor is
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exercising its right of recapture pursuant to paragraph (e)
below.
(c) If Lessor consents to an assignment or sublease: (i)
Lessee shall promptly deliver to Lessor a fully executed copy
of said assignment or sublease; (ii) after any such assignment
or sublease, Lessee shall remain primarily liable to Lessor
hereunder (which liability shall be joint and several with the
assignee or sublessee); and (iii) if the aggregate rent and
other amounts payable to Lessee under or in connection with
such assignment or sublease, after deduction of the costs
reasonably incurred by Lessee in entering into such assignment
or sublease (including, without limitation, reasonable
attorneys' fees and expenses, brokerage commissions, and
alteration costs amortized on a straight-line basis over the
term of such sublease or, in the case of an assignment, over
the remaining Term of this Lease), exceeds the Rent payable
hereunder with respect to the portion of the Premises subject
to such sublease (or, in the case of an assignment, the entire
Premises), Lessee shall pay to Lessor, as Additional Rent,
one-half (1/2) of such excess immediately upon receipt thereof
by Lessee.
(d) If Lessor withholds its consent to such assignment or
sublease, Lessee shall not enter into the proposed assignment
or sublease with such person or entity.
(e) If Lessor elects, it shall have the right to consider
Lessee's request for Lessor's consent to any assignment of the
Lease, or a request for Lessor's consent to a sublease which
either (i) has a proposed term (including extension options)
of two years or more, or (ii) would cover twenty-five (25%)
percent of the rentable area of the Premises or more, as an
offer to Lessor to release from this Lease that portion of the
Premises which is proposed to be the subject of such sublease
for the term of such proposed sublease or, in the case of a
proposed assignment of this Lease, the entire Premises for the
entire Lease Term. If Lessor accepts such offer, then (i) in
the case of a proposed sublease, this Lease shall be deemed to
be amended as of the proposed effective date of such sublease
so as to delete the portion of the Premises which would have
been subject thereto from the Premises for purposes of this
Lease (with a commensurate adjustment in Rent and Lessee's
share of Taxes and Operating Expenses) for the time period of
what would have been the term of such sublease, or (ii) in the
case of a proposed assignment, this Lease shall terminate as
of the proposed effective date of such assignment as if such
date was the last day of the Term.
(f) Regardless of whether Lessor grants such consent, Lessee
shall reimburse Lessor on demand, as Additional Rent, for all
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out of pocket costs and expenses (including, without
limitation, attorneys' fees) reasonably incurred by Lessor in
responding to a request for such consent.
(g) Lessee shall not be entitled to enter into any assignment
or sublease, or to request Lessor's consent thereto, during
the continuance of a default hereunder by Lessee.
(h) Any assignment or sublease entered into pursuant to this
Section 8.0 shall be subject to all of the terms and
provisions of this Lease, including without limitation this
Section 8.0. If Lessee enters into any such assignment or
sublease, Lessor may, at any time and from time to time after
the occurrence of a default hereunder, collect rent from such
assignee or sublessee, and apply the net amount collected
against Lessee's obligations hereunder, but no such assignment
or sublease or collection shall be deemed an acceptance by
Lessor of such assignee or sublessee as a lessee hereunder or
as a release of the original named Lessee hereunder.
(i) Notwithstanding anything contained in this Lease, Lessee
shall not enter into any assignment or sublease with any
person or entity if the identity of the assignee or sublessee
is inconsistent with the investment policies of Lessor as set
forth in writing by the Executive Committee of Lessor prior to
its receipt of Lessee's notice of such proposed assignment or
sublease, and any such transaction shall be void AB INITIO.
(j) In the event that Lessee desires to assign this Lease or
to sublease the Premises (or any portion thereof) to any
corporation, partnership, association or other business
organization directly or indirectly controlling or controlled
by Lessee or under common control with Lessee, or to any
successor by merger, consolidation or purchase of all or
substantially all of the assets of Lessee, Lessee shall give
at least twenty (20) days' prior written notice thereof to
Lessor (unless Lessee is prohibited by applicable laws, codes,
rules or regulations, or by the terms of the operative merger
agreement or purchase and sale agreement from providing notice
to Lessor at such time, in which event such notice shall be
provided to Lessor as soon as Lessee is no longer subject to
such prohibition). No consent of Lessor shall be required for
any such assignment or sublease EXCEPT that Lessor shall have
the right to withhold its consent if the identity of the
assignee or sublessee is inconsistent with the investment
policies identified in the foregoing paragraph (i) of this
Section. Any assignee or sublessee which claims an interest in
this Lease pursuant to a transfer of the type described in
this paragraph (j) shall be bound by all of the terms and
conditions of this Lease including, without limitation, those
of the foregoing paragraph (i) of
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this Section, and if the identity of such assignee or successor is
inconsistent with such investment policies, Lessor shall have the
right to terminate this Lease and to exercise against such assignee
or sublessee the remedies available to Lessor under this Lease, at
law or in equity for a breach of the provisions hereof by Lessee.
For the purpose of this Lease, the sale of Lessee's capital stock
through any public exchange shall not be deemed an assignment or
sublease of the Lease or of the Premises.
(k) Notwithstanding anything contained in this Lease, Lessee shall
not, either voluntarily or by operation of law, make any
transfer of this Lease or the Premises (or any portion
thereof) which results in Lessee (or anyone claiming by,
through or under Lessee) collecting in connection with the
Premises any rental or other charge based on the net income or
on the profits of any person so as to render any part of the
Rent due hereunder "unrelated business taxable income" of
Lessor as described in Section 512 of the Internal Revenue
Code of 1986, as amended, and any such transfer shall be void
AB INITIO.
9.0 PARKING. Lessee shall have the right to use 100 parking spaces in
the parking area on the Land (the "Parking Area") to serve the
Premises. The remaining parking spaces on the Land shall be divided
equally to serve the third and fourth floors of the Building. If
Lessee exercises its option or right of first refusal with respect
to one or both of the third and fourth floors under Sections 1.3 or
1.4, Lessee will thereby acquire the right to use the corresponding
number of additional parking spaces. While Lessee is constructing
its initial build out, Lessor will, if necessary, make additional
spaces available to Lessee to accommodate construction personnel and
their vehicles.
10.0 LATE PAYMENT OF RENT. Lessee agrees that in the event that any
payment of Basic Rent or Additional Rent shall remain unpaid at the
close of business on the tenth business day after the same is due
and payable hereunder (without reliance on any applicable grace
period), such payment shall bear interest from the date the same was
due at a rate equal to the "Prime Rate" as published from time to
time in THE WALL STREET JOURNAL while such payment is overdue PLUS
four (4%) percent, which shall be due and payable by Lessee as
Additional Rent as compensation for Lessor's extra administrative
costs in investigating the circumstances of late Rent. The
assessment or collection of such a charge shall not be deemed to be
a waiver by Lessor of any default by Lessee arising out of such
failure to pay Rent when due.
11.0 LESSEE'S COVENANTS. Lessee covenants, at its sole cost and expense,
during the Term and such further time as Lessee occupies any part of
the Premises:
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(a) to pay when due the Basic Rent and all Additional Rent, and,
if separately metered at any time during the Term, all charges
for electricity and other utilities;
(b) damage by fire or casualty and reasonable wear and tear only
excepted, to keep the Premises (including window glass) in as
good order, repair and condition as the same are in at the
commencement of the Term, or may be put in thereafter;
(c) not to injure, overload or deface the Premises or the
Building, nor to suffer or commit any waste therein, nor to
place a load upon any floor which exceeds the floor load which
the floor was designed to carry, nor to connect any equipment
or apparatus to any Building system (e.g., electrical,
plumbing, mechanical) which exceeds the capacity of such
system, nor to permit on the Premises any auction sale or any
nuisance or the emission therefrom of any objectionable
vibration, noise, or odor, nor to permit the use of the
Premises for any purpose other than the Permitted Uses, nor
any use thereof which is improper, offensive, or contrary to
any laws, ordinances, codes, rules and regulations, or the
provisions of any license, permit or other governmental
consent or approval required for or applicable now or at any
time during the Term to the Land, the Building or the Premises
or Lessee's use thereof (collectively, "Legal Requirements"),
or which is liable to invalidate or increase the premiums for
any insurance on the Building or its contents, or liable to
render necessary any alterations or additions to the Building;
(d) not to obstruct in any manner any portion of the Building not
hereby leased, or the sidewalks or approaches to the Building,
or the Parking Area, or any hallways or Common Areas, and to
conform to all reasonable rules now or hereafter made by
Lessor for the care and use of the Building, its facilities
and approaches;
(e) to comply with all Legal Requirements and all recommendations
of Lessor's fire insurance rating organization now or
hereafter in effect, to keep the Premises equipped with all
safety appliances, and to procure (and maintain in full force
and effect) all licenses, permits and other governmental
consents and approvals required by any Legal Requirement or by
the provisions of any applicable insurance policy because of
the use made of the Premises by Lessee (without hereby
intending to vary the provisions of Section 4.0 above), and,
if requested by Lessor, to make all repairs, alterations,
replacements or additions so required in and to the Premises;
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(f) except as set forth in Section 1.5, Section 14 or this Section
11.0(f), not, without on each occasion obtaining the prior
written consent of Lessor which will not be unreasonably
withheld or delayed, to make any alterations, renovations,
improvements and/or additions to the Premises (collectively,
"Alterations"), or to permit the making of any holes in any
part of the Building or the painting or placing of any signs,
awnings, or the like, visible from outside of the Premises;
PROVIDED THAT Lessee may, without such approval, make
Alterations which will neither (i) materially affect the
structure of the Premises or its building service systems or
(ii) cost more than $25,000 to construct ("Minor
Alterations"). Prior to commencing any Alterations, Lessee
shall: secure all necessary licenses, permits and other
governmental consents and approvals; except for Minor
Alterations, obtain the written approval of Lessor as to the
plans and specifications for such work; except for Minor
Alterations, obtain the written approval of Lessor as to the
general contractor (or as to each trade contractor if there is
no general contractor); cause each contractor and
subcontractor to carry workmen's compensation insurance in
statutory amounts covering all of the contractor's and
subcontractor's employees; and cause each general contractor
(or each trade contractor if there is no general contractor)
and subcontractor to carry comprehensive public liability
insurance in amounts reasonably satisfactory to Lessor (such
insurance to be written by companies reasonably satisfactory
to Lessor and insuring Lessee and Lessor as well as the
contractors and subcontractors). All Alterations shall be
performed in a good and workmanlike manner consistent with
existing conditions within the Building and shall be of a
quality equal to or better than existing conditions. Lessor
and Lessee hereby agree that Lessee's Work as described in
Exhibit B shall remain part of the Premises upon the
expiration or earlier termination of the Term. All other
Alterations (other than Lessee's removable personal property
and trade fixtures) shall remain part of the Premises and
shall not be removed upon the expiration or earlier
termination of the Term EXCEPT for those items which Lessor
designates for removal in a notice given to Lessee at the time
that Lessee requests Lessor's approval of such Alteration.
Lessee shall pay promptly when due the entire cost of all
work. Lessee shall not cause or permit any liens for labor or
materials performed or furnished in connection therewith to
attach to the Land or the Building, and shall discharge or
bond any such liens which may be filed or recorded against the
Premises within fifteen (15) days after the filing
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or recording thereof. All such work shall be performed in
compliance with all Legal Requirements and the provisions of
all applicable insurance policies. Promptly after the
completion of any Alterations, Lessee shall provide a complete
set of as-built plans thereof to Lessor showing all work
performed, including, without limitation, plans for all
partitions, plumbing, electric service equipment and wiring,
HVAC equipment and piping, sprinkler systems and other
services installed or modified. Lessee shall indemnify and
hold Lessor harmless from and against any and all suits,
demands, causes of action, claims, losses, debts, liabilities,
damages, penalties or judgments, including, without
limitation, reasonable attorneys' fees, arising from injury to
any person or property occasioned by or growing out of such
work, which indemnity shall survive the expiration or
termination of this Lease;
(g) to save Lessor harmless and indemnified from any loss, cost
and expense (including, without limitation, reasonable
attorneys' fees) arising out of or relating to (i) a claim of
injury to any person or damage to any property while on the
Premises, if not due to the negligence or willful misconduct
of Lessor or its officers, agents, employees, servants or
contractors, or the breach of Lessor's obligations under this
Lease; or to (ii) a claim of injury to any person or damage to
any property anywhere alleged to be occasioned by any
omission, neglect or default of Lessee or of anyone claiming
by, through, or under Lessee, or any officer, agent, employee,
servant, contractor or invitee of any of the foregoing. Lessor
agrees to indemnify and hold harmless Lessee from and against
all loss, cost and expense (including, without limitation,
reasonable attorneys' fees) arising out of or relating to a
claim for personal injury or property damage resulting from
the negligence or willful misconduct of Lessor or its
officers, agents, employees, servants or contractors,
including claims of injury to any person or damage to any
property while on the common areas on the property, if due to
the negligence or willful misconduct of Lessor or its
officers, agents, employees, servants or contractors, or from
the breach of Lessor's obligations or representations under
this Lease. The provisions of this clause (g) shall survive
the expiration or termination of this Lease;
(h) that all furniture, furnishings, fixtures and property of
every kind of Lessee and of all persons claiming by, through
or under Lessee which may be on the Premises from time to time
(collectively, "Lessee's Property") shall be at the sole risk
of Lessee, and Lessor shall
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not be liable 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, or by theft or from any other cause unless caused by
the negligence or willful misconduct of Lessor, or its
officers, agents, employees, servants or contractors;
(i) to pay promptly when due, all taxes of any kind levied,
imposed or assessed on Lessee's Property, which taxes shall be
the sole obligation of Lessee, whether the same is assessed to
Lessee or to any other person and whether the property on
which such tax is levied, imposed or assessed shall be
considered part of the Premises or personal property;
(j) by the end of business on the last day of the Term (or the
effective date of any earlier termination of this Lease as
herein provided), to remove (1) all of Lessee's Property and
(2) the items or components of Alterations designated for
removal as provided in paragraph (f) above, in each case
whether the same be permanently affixed to the Premises or
not, and to repair any damage caused by any such removal to
Lessor's reasonable satisfaction; and peaceably to yield up
the Premises clean and in good order, repair and condition
(reasonable wear and tear, and damage by fire or other
casualty or taking which Lessee is not otherwise required by
the terms of this Lease to repair or replace only excepted);
and to deliver the keys to the Premises to Lessor. Any of
Lessee's Property or those Alterations designated for removal
as provided in paragraph (f) above which are not removed by
such date shall be deemed abandoned and may be removed and
disposed of by Lessor in such manner as Lessor may determine,
and Lessee shall pay to Lessor on demand, as Additional Rent,
the entire cost of such removal and disposition, together with
the costs and expenses incurred by Lessor in making any
incidental repairs and replacements to the Premises
necessitated by Lessee's failure to remove Lessee's Property
or those Alterations designated for removal as provided in
paragraph (f) above, as required herein or by any other
failure of Lessee to comply with the terms of this Lease, and
for use and occupancy during the period after the expiration
of the Term and prior to Lessee's performance of its
obligations under this paragraph (k). Lessee shall further
indemnify and hold Lessor harmless from and against any and
all suits, demands, causes of action, claims, losses, debts,
liabilities, damages, penalties or judgments, including,
without limitation, reasonable attorneys' fees, resulting from
Lessee's failure or
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delay in surrendering the Premises as above provided (such
indemnity to survive the expiration or termination of this
Lease);
(k) to pay Lessor's reasonable expenses, including reasonable
attorneys' fees, incurred in enforcing any obligations of
Lessee under this Lease;
(l) not to generate, store or use any "Hazardous Materials" (as
hereinafter defined) in or on the Premises or elsewhere in the
Building or on the Land except those identified in writing to
Lessor from time to time, and then only in compliance with any
and all applicable Legal Requirements, or dispose of Hazardous
Materials from the Premises to any other location except a
properly approved disposal facility and then only in
compliance with any and all Legal Requirements regulating such
activity, nor permit any occupant of the Premises to do so. As
used in this Lease, "Hazardous Materials" means and includes
any chemical, substance, waste, material, gas or emission
which is radioactive or deemed hazardous, toxic, a pollutant,
or a contaminant under any statute, ordinance, by-law, rule,
regulation, executive order or other administrative order,
judgment, decree, injunction or other judicial order of or by
any governmental authority, now or hereafter in effect,
relating to pollution or protection of human health or the
environment. By way of illustration and not limitation,
"Hazardous Materials" includes "oil", "hazardous materials",
"hazardous waste", and "hazardous substance" as defined in the
Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 ET SEQ., as amended, the
Resource Conservation and Recovery Act of 1976, 42 U.S.C.
Section 6902 ET SEQ., as amended, and the Toxic Substances
Control Act, 15 U.S.C. 8601 ET SEQ., as amended, the
regulations promulgated thereunder, and Massachusetts General
Laws, Chapter 21C and Chapter 21E and the regulations
promulgated thereunder. If, at any time during the Term, any
governmental authority requires testing to determine whether
there has been any release of Hazardous Materials by Lessee or
anyone claiming by, through or under Lessee, then Lessee shall
reimburse Lessor upon demand, as Additional Rent, for the
reasonable costs thereof. Lessee shall execute affidavits,
certifications and the like, as may be reasonably requested by
Lessor from time to time concerning Lessee's best knowledge
and belief concerning the presence of Hazardous Materials in
or on the Premises, the Building or the Land. Lessor reserves
the right to enter the Premises at reasonable times (provided
twenty-four (24) hours' notice is given to
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Lessee, except in case of emergency) to inspect the same for
Hazardous Materials. Lessee's obligations under this paragraph
(l) shall include, if at any time during the Term Lessee or
anyone claiming by, through or under Lessee uses or stores
radioactive materials on the Premises, compliance with all
so-called "close-out" procedures of the Nuclear Regulatory
Commission or other federal, state or local governmental
authorities having jurisdiction over radioactive materials,
regardless of whether or not such procedures are completed
prior to the expiration or earlier termination of the Term.
Lessee shall indemnify, defend, and hold harmless Lessor, and
the holder of any mortgage on the Building or the Land, from
and against any claim, cost, expense, liability, obligation or
damage, including, without limitation, attorneys' fees and the
cost of litigation, arising from or relating to the breach by
Lessee or anyone claiming by, through or under Lessee of the
provisions of this paragraph (l), and shall immediately
discharge or cause to be discharged any lien imposed upon the
Building or the Land in connection with any such claim. The
provisions of this paragraph (l) shall survive the expiration
or termination of this Lease;
(m) in case Lessee takes possession of the Premises prior to the
Commencement Date, to perform and observe all of Lessee's
covenants from and after the date upon which Lessee takes
possession except that no Rent shall accrue prior to the Rent
Commencement Date;
(n) to comply with all rules and regulations adopted and amended
from time to time by Lessor for the operation of the Land and
the Building; and
(o) not to permit any officer, agent, employee, servant,
contractor or visitor of Lessee, or of anyone claiming by,
through or under Lessee, to violate any covenant or obligation
of Lessee hereunder.
12.0 Casualty and Eminent Domain.
12.1 SUBSTANTIAL TAKING. In the event that the entire Building, or
more than fifty percent (50%) percent of the rentable area of
the Premises or of the parking spaces which the Lessee is
entitled to use under Section 9.0, shall be taken by any
exercise of the right of eminent domain or other lawful power
in pursuance of any public or other authority during the Term,
then this Lease shall terminate as of the time that possession
is taken by the taking authority.
12.2 PARTIAL TAKING. In the event that a taking occurs and this
Lease is not terminated as provided in Section 12.1
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above, then from and after the date possession is taken by the
taking authority Rent shall be abated by an amount
representing that part of the Rent properly allocable to the
portion of the Premises so taken, but this Lease shall
otherwise continue in full force and effect.
12.3 AWARDS. Lessor reserves and excepts all rights to damage to
the Premises, the Building, the Land and the leasehold hereby
created, now accrued or hereafter accruing by reason of any
exercise of eminent domain, or by reason of anything lawfully
done in pursuance of any public or other authority and by way
of confirmation, Lessee grants to Lessor all of Lessee's
rights to such damages and covenants to execute and deliver
such further instruments of assignment thereof as Lessor may
from time to time request. Lessor agrees, during the Initial
Term only, to pay to Lessee out of the damages received, the
Unamortized Value of Lessee's Work. The Unamortized Value of
Lessee's Work shall mean the Value of Lessee's Work reduced
annually at the end of each year of the Initial Term by one
fifth of the initial amount thereof. The Value of Lessee's
Work shall mean the cost to Lessee of constructing Lessee's
Work reduced by soft costs.
12.4 SUBSTANTIAL CASUALTY. If the Premises are damaged by fire or
other casualty, Lessee shall promptly notify Lessor thereof.
If the Building or any part thereof shall be damaged by fire
or other casualty to the extent that substantial alteration or
reconstruction of the Building shall, in Lessor's sole
opinion, be required (whether or not the Premises shall have
been damaged), or if such casualty renders more than fifty
(50%) percent of the rentable area of the Premises unusable by
Lessee for the operation of its business in the Premises, or
if as a result of such casualty any mortgagee of the Building
requires that insurance proceeds payable in connection with
such casualty be used to retire the mortgage debt, then,
except as set forth in Section 12.5, Lessor may, at its
option, terminate this Lease by notifying Lessee in writing of
such termination within sixty (60) days after the date of such
damage, in which event this Lease shall terminate on the date
set forth in such notice. If such casualty renders more than
fifty (50%) percent of the rentable area of the Premises
unusable by Lessee for the operation of its business in the
Premises, in the reasonable determination of Lessee, then
Lessee may terminate this Lease by written notice thereof to
Lessor within sixty (60) days after the date of such damage,
or if, after such casualty, Lessor is excused from restoring
the Premises under Section 12.5 and notifies
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Lessee that it will not restore the Premises, then Lessee may
terminate this Lease by written notice thereof to Lessor
within thirty (30) days after receipt of such notice by the
Lessee. In the event that this Lease is terminated pursuant to
this Section 12.4, Rent shall be abated, to the extent the
Premises are unusable for the Permitted Uses, from and after
the date of such damage to the date of such termination of
this Lease, and no further Rent shall accrue or be payable
after the date of such termination.
12.5 REPAIR AND RESTORATION. In the event of a taking which does
not result in the termination of this Lease pursuant to
Section 12.1 above, or a casualty which does not result in the
termination of this Lease pursuant to Section 12.4 above, or
if, notwithstanding the occurrence of a substantial casualty
described in Section 12.4, Lessor decides not to demolish the
Building, the Premises shall be repaired and restored in the
manner provided in this Section. Lessor shall diligently act
to restore the Building and the Premises (exclusive of all
items or components of Alterations which Lessee is by this
Lease either entitled to or required to remove upon the
expiration or earlier termination of this Lease, and Lessee's
Property) or, in case of taking, what remains thereof, to
substantially the condition in which they existed prior to the
occurrence of such taking or casualty, PROVIDED, HOWEVER,
that: (i) in no event shall Lessor be required to spend in
connection with restoring the Premises more than the amount of
insurance proceeds or taking award actually received and
allocable thereto (except that this limitation with respect to
insurance proceeds shall not apply to casualties occurring
during such time as Lessor self-insures pursuant to Section
7.4 above); (ii) Lessor shall not be required to restore or
replace any Alterations which Lessee is by this Lease either
entitled to or required to remove upon the expiration or
earlier termination of this Lease; and (iii) Lessor shall not
be required to restore or replace any of Lessee's Property.
Lessor shall not be liable for any inconvenience or annoyance
to Lessee or injury to the business of Lessee resulting in any
way from such taking or damage or the repair thereof. Rent
shall be abated from and after the date of such taking or
damage to the date on which Lessor substantially completes the
restoration described above, to the extent the Premises are
unusable for the Permitted Uses.
13.0 Defaults; Events of Default; Remedies.
13.1 DEFAULTS; EVENTS OF DEFAULT. The following shall, if any
requirement for notice or lapse of time or both has
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not been met, constitute defaults hereunder, and, if such
requirements have been met, constitute "Events of Default"
hereunder:
(a) The failure of Lessee to perform or observe any of
Lessee's covenants or agreements hereunder concerning
the payment of money for a period of ten (10) days after
written notice thereof, PROVIDED, HOWEVER, that Lessee
shall not be entitled to such notice if Lessor has given
notice to Lessee of two or more previous such failures
within a twelve-month period, in which event such
failure shall constitute an Event of Default hereunder
upon the expiration of ten (10) days after such payment
was due;
(b) The failure of Lessee to maintain the insurance required
hereunder in full force and effect;
(c) The execution by Lessee of any assignment or sublease
without the prior written consent of Lessor;
(d) The failure of Lessee to perform or observe any of
Lessee's other covenants or agreements hereunder for a
period of thirty (30) days after written notice thereof
(PROVIDED THAT, in the case of defaults not reasonably
curable in thirty (30) days through the exercise of
reasonable diligence, such 30-day period shall be
extended for so long as Lessee commences cure within
such period and thereafter prosecutes such cure to
completion continuously and with reasonable diligence;
or
(e) If the leasehold hereby created shall be taken on
execution, or by other process of law; or if any
assignment shall be made of Lessee's property for the
benefit of creditors; or if a receiver, guardian,
conservator, trustee in bankruptcy or similar officer
shall be appointed to take charge of all or any part of
Lessee's assets by a court of competent jurisdiction; or
if a petition is filed by Lessee under any bankruptcy or
insolvency law; or if a petition is filed against Lessee
under any bankruptcy or insolvency law and the same
shall not be dismissed within sixty (60) days from the
date upon which it is filed; or a lien or other
involuntary encumbrance is filed against Lessee's
leasehold (or against the Premises, the Building or the
Land based on a claim against Lessee) and is not
discharged or bonded within thirty (30) days after the
filing thereof.
13.2 TERMINATION. If an Event of Default shall occur, Lessor may,
at its option, immediately or any time thereafter
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and without demand or notice, enter upon the Premises or any
part thereof in the name of the whole and repossess the same
as of Lessor's former estate and dispossess Lessee and those
claiming through or under Lessee and remove 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 preceding
breach of covenant, and upon such entry this Lease shall
terminate. In lieu of making such entry, Lessor may terminate
this Lease upon three (3) business days' prior written notice
to Lessee. Upon any termination of this Lease as the result of
an Event of Default, Lessee shall quit and peacefully
surrender the Premises to Lessor.
13.3 SURVIVAL OF COVENANTS. No such termination of this Lease shall
relieve Lessee of its liability and obligations under this
Lease and such liability and obligations shall survive any
such termination. Lessee shall indemnify and hold Lessor
harmless from all loss, cost, expense, damage or liability
arising out of or in connection with such termination.
13.4 DAMAGES. In the event of any such termination, Lessee shall
pay to Lessor the Rent up to the time of such termination.
Lessee shall remain liable for, and shall pay on the days
originally fixed for such payment hereunder, the full amount
of all Basic Rent and Additional Rent as if this Lease had not
been terminated; PROVIDED, HOWEVER, if Lessor relets the
Premises, there shall be credited against such obligation the
amount actually received by Lessor each month from such lessee
after first deducting all costs and expenses incurred by
Lessor in connection with reletting the Premises and, if
Lessor has previously received a payment under the succeeding
paragraph of this Section 13.4, there shall be credited
against such obligation the amount actually received by
Lessor.
Lessee further agrees to pay to Lessor, on demand, as and for
liquidated and agreed damages for Lessee's default, the amount
by which:
(a) the aggregate Rent which would have been payable under
this Lease by Lessee from the date of such termination
until what would have been the last day of the Term but
for such termination, EXCEEDS
(b) the greater of (i) the fair and reasonable rental value
of the Premises for the same period, less Lessor's
reasonable estimate of expenses to be incurred in
connection with
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reletting the Premises, including, without limitation,
all repossession costs, brokerage commissions, legal
expenses, reasonable attorneys' fees, alteration costs,
and expenses of preparation for such reletting, or (ii)
the sum of (A) the amount actually received by Lessor
from reletting the Premises (if any) after payment of
such expenses, and (B) the amount actually received by
Lessor from Lessee pursuant to the preceding paragraph
of this Section (if any).
If the Premises or any part thereof are relet by Lessor for
the period prior to what would have been the last day of the
Term but for such termination, or any portion thereof, the
amount of rent reserved upon such reletting shall be, PRIMA
FACIE, the fair and reasonable rental value for the part or
the whole of the Premises so relet during the term of the
reletting.
In lieu of any other damages hereunder, Lessor may by written
notice to Lessee, at any time after this Lease is so
terminated, elect to recover, and Lessee shall pay as full and
final liquidated damages, an amount equal to (i) the Basic
Rent and Additional Rent accrued under Section 5.0 hereof in
the twelve (12) months ending on the effective date of such
termination, PLUS (ii) all Basic Rent and Additional Rent
which was unpaid as of the effective date of such termination,
LESS (iii) the amount received by Lessor pursuant to the
foregoing provisions of this Section 13.4 prior to the time of
payment by Lessee of such liquidated damages.
Nothing herein contained shall limit or prejudice the right of
Lessor to prove and obtain as liquidated damages by reason of
such termination, 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, such damages are to be
proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
13.5 RIGHT TO RELET. At any time or from time to time after any
such termination, Lessor may relet the Premises or any part
thereof for such a term (which may be greater or less than the
period which would otherwise have constituted the balance of
the Term) and on such conditions (which may include
concessions or free rent) as Lessor, in its reasonable
discretion, may determine, and may collect and receive the
rents therefor. Lessor shall in no way be responsible or
liable for any failure
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to relet the Premises or any part thereof, or for any failure
to collect any rent due upon any such reletting.
13.6 RIGHT TO EQUITABLE RELIEF. In the event there shall occur a
default hereunder, Lessor shall be entitled to seek to enjoin
such default and shall have the right to invoke any right and
remedy allowed at law or in equity or by statute or otherwise
as though re-entry and other remedies were not provided for in
this Lease.
13.7 RIGHT TO SELF HELP. In the event of a default by Lessee
hereunder which continues beyond the expiration of the
applicable grace period, Lessor shall have the right to
perform such defaulted obligation of Lessee, including the
right to enter upon the Premises to do so. Lessor shall, as a
courtesy only, notify Lessee of its intention to perform such
obligation. In the event of a default by Lessee hereunder
which has not yet continued beyond the expiration of the
applicable grace period but which Lessor determines
constitutes an emergency threatening imminent injury to
persons or damage to property, Lessor shall have the right to
perform such defaulted obligation of Lessee (including the
right to enter upon the Premises to do so) after giving Lessee
such notice (if any) as is reasonable under the circumstances.
In either event, the aggregate of (i) all sums so paid by
Lessor, (ii) interest (at the rate of 1-1/2% per month or the
highest rate permitted by law, whichever is less) on such sum,
and (iii) all necessary incidental costs and expenses in
connection with the performance of any such act by Lessor,
shall be deemed to be Additional Rent under this Lease and
shall be payable to Lessor immediately upon demand. Lessor may
exercise its rights under this Section 13.7 without waiving
any other of its rights or releasing Lessee from any of its
obligations under this Lease. If Lessor defaults on its
obligations hereunder after thirty (30) days notice thereof
or, in the event of an emergency, such notice as is reasonable
under the circumstances, and, as a result, Lessee is compelled
to pay, or reasonably elects to pay any sum of money or do any
act which will require the payment of a sum of money, or
incurs any reasonable expense to cure such default by Lessor,
any reasonable amounts so paid shall be due from Lessor to
Lessee, and Lessor shall pay such amount promptly to Lessee
upon receipt of a bill therefor. The right granted to Lessee
in this Section 13.7 is in addition to any other rights and
remedies Lessee may have at law or in equity.
13.8 FURTHER REMEDIES. Nothing in this Lease contained shall
require Lessor to elect any remedy for a default or Event of
Default by Lessee hereunder, and all rights
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herein provided shall be cumulative with one another and with
any other rights and remedies which Lessor may have at law or
in equity in the case of such a default or Event of Default.
14.0 CONSTRUCTION. Lessee shall have the right to make improvements to
the Premises in order to make them suitable for use as a
semi-conductor wafer manufacturing facility in accordance with the
provisions of the Work Letter attached hereto as EXHIBIT B.
15.0 LESSOR'S RIGHT OF ENTRY. Lessor reserves the right to enter the
Premises on reasonable advance notice to the Lessee for the purpose
of installing one or two elevators and installing or modifying the
existing service systems in the Building in order to render
tenantable the third and fourth floors of the Building; PROVIDED
THAT Lessor shall cooperate with Lessee in order to minimize
interference with Lessee's business operations. Lessor agrees that
all work to install elevator(s) shall be commenced as soon as
reasonably possible after the Commencement Date, and Lessor shall
use reasonable efforts to complete the installation as soon as
possible. Lessor and Lessor's agents shall have the right to enter
the Premises at reasonable times (provided 24 hours' notice is given
to Lessee, except in case of emergency), and if Lessor shall so
elect (without hereby imposing any obligation on Lessor to do so),
to permit Lessor to make any repairs or additions Lessor may deem
necessary; and at Lessee's expense to remove any Alterations, signs,
awnings, aerials, flagpoles or the like not consented to in writing
or permitted hereunder; and to permit Lessor to show the Premises to
prospective purchasers and lessees (at reasonable times on
reasonable advance notice to Lessee) and to keep affixed to any
suitable part of the Premises, during the nine (9) months preceding
the expiration of the Term, appropriate notices for letting or
selling.
16.0 REAL ESTATE BROKER. Lessor and Lessee each represent to the other
that they have dealt with no broker in connection with this Lease.
Lessee agrees to indemnify and hold Lessor harmless from and against
any claims for commissions or fees by reason of any act of Lessee or
its representatives. Lessor agrees to indemnify and hold Lessee
harmless from and against any claims for commissions or fees by any
person by reason of any act of Lessor or its representatives.
17.0 NOTICES. Whenever by the terms of this Lease notice, demand, or
other communication shall or may be given either to Lessor or to
Lessee, the same shall be in writing and shall be sent by hand
delivery, or by registered or certified mail, postage prepaid, or by
Federal Express or other similar overnight delivery service, to:
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Lessor: Massachusetts Institute of Technology
238 Main Street - Suite 200
Cambridge, Massachusetts 02142
Attention: Philip A. Trussell,
Director of Real Estate
with a copy to: Stuart T. Freeland, Esq.
Rackemann, Sawyer & Brewster
One Financial Center
Boston, Massachusetts 02111
Lessee: Analog Devices, Inc.
One Technology Way
P.O. Box 9106
Norwood, MA 02062-9106
Attention: Chief Financial Officer
with a copy to: Philip D. Stevenson, Esq.
Hale and Dorr
60 State Street
Boston, MA 02109-1816
Any notice, demand or other communication shall be effective upon
receipt by or tender for delivery to the intended recipient thereof.
18.0 NO WAIVERS. Failure of a party to complain of any act or omission on
the part of the other party no matter how long the same may
continue, shall not be deemed to be a waiver by such party of any of
its rights hereunder. No waiver by a party at any time, expressed or
implied, of any breach of any provision of this Lease shall be
deemed a waiver of a breach of any other provision of this Lease or
a consent to any subsequent breach of the same or any other
provision. No acceptance by a party of any partial payment shall
constitute an accord or satisfaction but shall only be deemed a
partial payment on account; nor shall any endorsement or statement
on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, and the receiving party may
accept such check or payment without prejudice to that party's right
to recover the balance of such installment or pursue any other
remedy available to such party in this Lease or at law or in equity.
19.0 Ground Leases; Mortgages.
19.1 RIGHTS OF GROUND LESSORS AND MORTGAGEES. No act or failure to
act on the part of Lessor which would entitle Lessee under the
terms of this Lease, or by law, to be relieved of Lessee's
obligations hereunder or to
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terminate this Lease, shall result in a release or termination
of such obligations or a termination of this Lease unless (i)
Lessee shall have first given written notice to Lessor's
ground lessors and mortgagees of the act or failure to act on
the part of Lessor which Lessee claims as the basis of
Lessee's rights; and (ii) such ground lessors and mortgagees,
after receipt of such notice, have failed or refused to
correct or cure the condition within a reasonable time
thereafter, but nothing in this Lease shall be deemed to
impose any obligation on any such ground lessor or mortgagee
to correct or cure any such condition. The foregoing sentence
shall apply only for the benefit of ground lessors and
mortgagees who have been identified to Lessee by a notice
given in accordance with Section 17. No ground lessor shall be
liable for the failure to perform any of the obligations of
Lessor hereunder unless and until such ground lessor
terminates its ground lease and takes possession of the
Premises, nor shall any mortgagee be liable for the failure to
perform any of the obligations of Lessor hereunder unless and
until such mortgagee enters upon and takes possession of the
Premises for purposes of foreclosure.
19.2 LEASE SUBORDINATE. This Lease is and shall be subject and
subordinate to any ground lease or mortgage now or hereafter
on the Premises, and to all advances under any such mortgage
and to all renewals, amendments, extensions and consolidations
thereof, PROVIDED THAT the holder of such ground lessor's
interest or mortgagee's interest enters into a non-disturbance
and attornment agreement with Lessee which provides that in
the event that such ground lessor or mortgagee succeeds to
Lessor's interest hereunder, then, PROVIDED THAT Lessee is not
in default hereunder beyond the cure period provided in this
Lease, such party shall recognize and be bound by the terms of
this Lease. In the event that any ground lessor or the holder
of any mortgage succeeds to Lessor's interest in the Premises
or any portion thereof, Lessee hereby agrees to attorn to such
ground lessor or mortgagee. In confirmation of such
subordination, Lessee shall execute and deliver promptly any
certificate in recordable form that Lessor or any ground
lessor or any mortgagee may reasonably request.
Notwithstanding the foregoing provisions of this Section, the
holder of any mortgage on the Premises may at any time
subordinate its mortgage to this Lease by written notice to
Lessee. Lessor hereby represents to Lessee that as of the date
of this Lease, there are no mortgages or ground leases
encumbering the Premises or any portion thereof.
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20.0 NOTICE OF LEASE; ESTOPPEL CERTIFICATES. Lessor and Lessee agree that
this Lease shall not be recorded. However, upon the request of
either party, Lessor and Lessee shall execute and acknowledge a
Notice of Lease in mutually acceptable and recordable form.
From time to time during the Lease Term, and without charge, either
party shall, within fifteen (15) business days of request by the
other, certify by written instrument duly executed and acknowledged,
to the requesting party or to any person reasonably specified by the
requesting party, regarding (a) the existence of any amendments or
supplements to this Lease; (b) the validity and force and effect of
this Lease; (c) the existence of any known default or Event of
Default; (d) the existence of any offsets, counterclaims or
defenses; (e) the Commencement Date and the expiration date of the
Lease Term; (f) the amount of Rent due and payable and the date to
which Rent has been paid; and (g) such other matters as may be
reasonably requested.
21.0 HOLDING OVER. If Lessee occupies the Premises after the day on which
the Lease Term expires (or the effective date of any earlier
termination as herein provided) without having entered into a new
lease thereof with Lessor, Lessee shall be a tenant-at-sufferance
only, subject to all of the terms and provisions of this Lease;
PROVIDED THAT Basic Rent shall be payable for the first sixty (60)
days after such expiration or termination at one and one-half (1.5)
times the then-effective Basic Rent stated in Section 3.2 and
thereafter shall be payable at three (3) times the then-effective
Basic Rent there stated. Such a holding over, even if with the
consent of Lessor, shall not constitute an extension or renewal of
this Lease. For purposes of this Section, the failure of Lessee to
complete by the last day of the Lease Term or the effective date of
any earlier termination as herein provided the "close-out"
procedures required by the Nuclear Regulatory Commission or any
other federal, state or local governmental agency having
jurisdiction over the use of radioactive materials within the
Premises shall constitute a holding over and subject Lessee to the
provisions of this Section.
22.0 FORCE MAJEURE. Neither Lessor nor Lessee shall be deemed to be in
default hereunder and the time for performance of any of their
respective obligations hereunder other than the payment of money
shall be postponed for so long as the performance of such obligation
is prevented by strike, lock-out, act of God, absence of materials
or any other matter not reasonably within the control of the party
which must perform the obligation (collectively, "Force Majeure").
23.0 ENTIRE AGREEMENT. No oral statement or prior written matter shall
have any force or effect. This Agreement shall not be
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modified or canceled except by writing subscribed to by all parties.
24.0 SUCCESSORS AND ASSIGNS. The terms, covenants and conditions of this
Lease shall run with the Land, and be binding upon and inure to the
benefit of Lessor and Lessee and their respective successors and
permitted assigns.
25.0 APPLICABLE LAW, SEVERABILITY AND CONSTRUCTION. This Lease shall be
governed by and construed in accordance with the laws of
Massachusetts and, if any provisions of this Lease shall to any
extent be invalid, the remainder of this Lease, and the application
of such provisions in other circumstances, shall not be affected
thereby. The titles of the several Sections contained herein are for
convenience only and shall not be considered in construing this
Lease. Whenever the singular is used and when required by the
context it shall include the plural, and the neuter gender shall
include the masculine and feminine. The Exhibits attached to this
Lease are incorporated into this Lease by reference. This Lease may
be executed in several counterparts, each of which shall be an
original, but all of which shall constitute one and the same
instrument. The term "Lessor" whenever used herein, shall mean only
the owner at the time of Lessor's interest herein, and no covenant
or agreement of Lessor, express or implied, shall be binding upon
any person except for defaults occurring during such person's period
of ownership nor binding individually upon any fiduciary, any
shareholder, officer or director, or any beneficiary under any
trust, and the liability of Lessor, in any event, shall be limited
to Lessor's interest in the Building. If Lessee is several persons
or a partnership, Lessee's obligations are joint or partnership and
also several. Unless repugnant to the context, "Lessor" and "Lessee"
mean the person or persons, natural or corporate, named above as
Lessor and as Lessee respectively, and their respective heirs,
executors, administrators, successors and assigns.
26.0 AUTHORITY. Contemporaneously with the signing of this Lease, Lessee
shall furnish to Lessor a certified copy of the resolution of the
Board of Directors of Lessee authorizing Lessee to enter into this
Lease, and Lessor shall furnish appropriate evidence of the
authority of Lessor to enter into this Lease.
27.0 WORK TO BE PERFORMED BY POLAROID CORPORATION. Lessor will purchase
the Land and the Building from Polaroid Corporation ("Polaroid")
contemporaneously with the execution and delivery of this Agreement.
Under the purchase and sale agreement between Lessor and Polaroid
(the "Purchase Agreement"), a copy of which has been provided to the
Lessee,
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Polaroid has agreed to install a new steam line to serve the
Building and to provide steam to the Building while the new line is
being installed. Polaroid has also agreed: (i) to allow Lessor and
Lessee to perform wipe tests in the clean room on the first floor of
the Building, and (ii) at Polaroid's expense, to perform any cleanup
needed to eliminate Hazardous Materials therein. Lessor agrees to
use reasonable efforts to ensure that Polaroid fulfills such
obligations.
WITNESS the execution hereof under seal as of the day and year first
above written.
LESSOR: MASSACHUSETTS INSTITUTE OF
TECHNOLOGY
Date: February 8, 1996, 1996 By:/S/ Philip A. Trussell
-----------------------------
Philip A. Trussell
Director of Real Estate
Hereunto duly authorized
LESSEE: ANALOG DEVICES, INC.
Date: February 8, 1996, 1996 By:/S/ Joseph E. McDonough
-----------------------------
Name: Joseph E. McDonough
Title: V.P. Finance and CFO
Hereunto duly authorized
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EXHIBIT A - PREMISES
DESCRIPTION
The land with the buildings thereon in Cambridge, Massachusetts,
bounded and described as follows:
Northerly: by State Street;
Easterly: by Osborn Street;
Southeasterly: by Albany Street;
Southwesterly: by Massachusetts Avenue; and
Westerly: by Smart Street.
Said premises contain 120,847 square feet of land more or less.
Subject to a notice of variance granted to Blanchard Machine Company
dated October 27, 1964, recorded with the Middlesex County South District
Registry of Deeds at Book 10676, Page 366 and filed for registration with
the Middlesex County South Registry District of the Land Court as Document
No. 412081.
For title see the following three deeds to the Seller: (1) deed of
PneumoDynamics Corporation dated June 12, 1972, recorded with said Deeds
at Book 12224, Page 402 and filed for registration with the Middlesex
County South Registry District of the Land Court as Document No. 498460;
(2) deed of Massachusetts Institute of Technology dated September 9, 1977
and recorded with said Deeds at Book 13282, Page 401; and (3) deed of
Edith Levine dated November 30, 1989 and recorded with said Deeds at Book
20232, Page 320. See also Certificate of Title No. 137943.
EXHIBIT B - WORK LETTER
This Work Letter is incorporated by reference into the Lease dated
February 8, 1996 by and between Massachusetts Institute of Technology, as
Lessor, and Analog Devices, Inc. as Lessee. Terms defined in or by
reference in the Lease not otherwise defined herein shall have the same
meaning herein as therein.
1. ADDITIONAL DEFINITIONS. Each of the following terms shall have the
meaning stated immediately after it:
CONSTRUCTION AUTHORIZATIONS. Collectively, all permits, licenses and
other consents and approvals required from any governmental
authority for the construction of Lessee's Work.
LESSEE'S GENERAL CONTRACTOR. A general contractor selected by Lessee
and approved in writing by Lessor, who will be engaged by Lessee to
construct Lessee's Work.
LESSEE'S WORK. All improvements, alterations and additions which
Lessee wishes to make to the Premises as part of the initial
preparation thereof for Lessee's occupancy. All Lessee's Work shall
be performed in a good and workmanlike manner consistent with
existing conditions within the Building and shall be of a quality
equal to or better than existing conditions.
WORKING DRAWINGS. The working drawings and specifications for
Lessee's Work, to be prepared by Lessee and Lessee's architect in
accordance with this Work Letter. The Working Drawings shall be
prepared in compliance with all applicable Legal Requirements and
stamped by registered Massachusetts professionals, and shall consist
of all architectural and engineering plans and specifications which
are required to finish the Premises or to obtain any Construction
Authorization required therefor.
2. PREPARATION OF THE PREMISES. Lessee shall perform Lessee's Work at
Lessee's sole cost and expense.
3. INSURANCE. Prior to the commencement of any design work on Lessee's
Work, Lessee shall provide to Lessor an original certificate of
insurance, in customary form, for each architect and engineer
retained by Lessee in connection with the design and/or construction
of Lessee's Work, which certificate shall evidence a current "errors
and omissions" insurance policy as in effect, in an amount
reasonably acceptable to Lessor. Prior to the commencement of the
construction of Lessee's Work, Lessee shall provide to Lessor an
original certificate of insurance for the general
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construction of Lessee's Work, which certificate shall evidence a
current general liability insurance policy as in effect, in an
amount reasonably acceptable to Lessor, naming Lessor as an
additional insured.
4. WORKING DRAWINGS. Lessee shall be solely responsible for the
preparation and completion of all preliminary and final Working
Drawings. Lessee shall retain its own architects and engineers to
prepare Working Drawings, PROVIDED THAT Lessor first approves such
engineers and architects so selected by Lessee, which approval shall
not be unreasonably withheld or delayed. Lessee shall provide copies
of the preliminary Working Drawings to Lessor, and Lessor shall
provide to Lessee within one (i) business day thereafter a list of
corrections and modifications which Lessor requires to be made to
the Working Drawings.
Lessee shall revise the preliminary Working Drawings to incorporate
the corrections and modifications requested by Lessor and shall
submit final Working Drawings to Lessor for its approval. Lessor
shall review the final Working Drawings and, within one (1) business
day after receipt thereof, Lessor shall either (a) notify Lessee
that Lessor has approved the final Working Drawings, or (b) provide
to Lessee a list of corrections and modifications which Lessor
requires to be made to the Working Drawings. In the event Lessor
returns the Working Drawings to Lessee for correction or
modification, Lessee shall diligently correct the Working Drawings
and re-submit them to Lessor for approval pursuant to the preceding
provisions of this paragraph. No work shall be performed until final
Working Drawings have been approved in writing by Lessor.
The review and/or approval by Lessor or its architect or engineers
of any plans, sketches or Working Drawings submitted by Lessee
relating to Lessee's Improvements shall not (i) constitute an
opinion or representation by Lessor that the same are in compliance
with all applicable Legal Requirements and the provisions of all
applicable insurance policies or as to the feasibility of
constructing the work shown thereon, or (ii) impose on Lessor any
responsibility for a design defect, it being agreed that all such
responsibility shall remain solely with Lessee.
Lessee shall reimburse Lessor, promptly upon demand therefor, for
all costs and expenses reasonably incurred by Lessor in reviewing
any plans, drawings and specifications submitted by Lessee pursuant
to this Work Letter, which reimbursement shall be due and payable as
Additional Rent.
-2-
5. LESSEE'S GENERAL CONTRACTOR. Lessee shall obtain the prior
reasonable written approval of Lessor as to Lessee's General
Contractor.
6. LESSEE'S WORK. Lessee shall be solely responsible for obtaining all
Construction Authorizations required for Lessee's Work. Lessee shall
apply for and maintain in full force and effect (or cause Lessee's
General Contractor to apply for and so maintain) all Construction
Authorizations required for the construction of Lessee's Work, and
upon completion of Lessee's Work shall obtain a certificate from the
appropriate governmental authority that Lessee's Work has been
completed in accordance with Legal Requirements. Lessee shall
deliver to Lessor a copy of said certificate promptly after
receiving the same.
Promptly after receiving all Construction Authorizations required
for Lessee's Work, Lessee shall cause Lessee's General Contractor to
commence construction and diligently to proceed to completion
thereof. All construction shall be performed in a good and
workmanlike manner, using new materials and in compliance with the
Working Drawings, the Construction Authorizations, all Legal
Requirements, and the provisions of all applicable insurance
policies.
Lessee shall pay promptly for all labor and materials supplied to
Lessee in connection with Lessee's Work, shall not cause or permit
any liens for such labor or materials to attach to the Premises, and
shall bond or discharge any such lien which may be filed or recorded
within fifteen (15) days after Lessee receives actual notice of such
filing or recording.
The construction of Lessee's Work shall be subject to the
requirements set forth in Section 11.0(f) of the Lease. Lessor may
inspect such work at any time or times and shall promptly give
notice to Lessee of any observed defects. Lessee shall indemnify,
defend and hold harmless Lessor from and against any and all
liability, damage, penalties or judgments and from and against any
claims, actions, proceedings and expenses and costs in connection
therewith, including reasonable attorneys' fees, arising out of or
resulting from the design or construction of Lessee's Work.
Lessee shall obtain from Lessee's General Contractor a guaranty
against construction defects for a period of not less than one (1)
year.
7. DELAYS. No delay by Lessee, Lessee's architects or engineers,
Lessee's General Contractor, or any subcontractor or supplier
thereof shall affect the Rent Commencement Date.
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8. LESSOR'S AND LESSEE'S REPRESENTATIVES. Prior to the commencement of
any design work for the Premises, each party hereto shall designate
in writing to the other a person as "Lessor's Representative" and
"Lessee's Representative" respectively, which person shall be
available during ordinary business hours to review the progress of
the work and to respond to issues which arise during construction.
Each party may rely on the other's Representative with respect to
all matters which pertain to this Work Letter, each party having
authorized its Representative to make decisions binding upon such
party with respect to such matters.
9. GENERAL. A breach by Lessee of any provision of this Work Letter
shall constitute a default under the Lease, for which Lessor shall
have all remedies therein provided.