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LEASE BY AND BETWEEN
PROSPECT HILL ACQUISITION TRUST
AND
THE MEDICINES COMPANY
at
200 Fifth Avenue
Waltham, Massachusetts 02451
Dated
June 19, 2003
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TABLE OF CONTENTS
Page
1 BASIC LEASE PROVISIONS ............................. 1
2 PREMISES ........................................... 3
3 TERM ............................................... 3
4 RENT ............................................... 6
5 SECURITY DEPOSIT ................................... 10
6 PERMITTED USE ...................................... 11
7 MAINTENANCE, REPAIRS AND ALTERATIONS ............... 11
8 INSURANCE .......................................... 15
9 DAMAGE OR DESTRUCTION .............................. 17
10 REAL AND PERSONAL PROPERTY TAXES ................... 19
11 UTILITIES .......................................... 21
12 ASSIGNMENT AND SUBLETTING .......................... 22
13 DEFAULT; REMEDIES .................................. 28
14 LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT 32
15 CONDEMNATION ....................................... 32
16 VEHICLE PARKING .................................... 33
17 BROKER'S FEE ....................................... 33
18 ESTOPPEL CERTIFICATE ............................... 34
19 FINANCIAL INFORMATION .............................. 34
20 LANDLORD'S LIABILITY ............................... 34
21 INDEMNITY .......................................... 35
22 EXEMPTION OF LANDLORD FROM LIABILITY ............... 36
(i)
23 HAZARDOUS SUBSTANCES ............................... 37
24 MEDICAL WASTE ...................................... 38
25 TENANT IMPROVEMENTS ................................ 38
26 SUBORDINATION AND RIGHTS OF MORTGAGEES ............. 39
27 OPTIONS TO EXTEND .................................. 40
28 LANDLORD RESERVATIONS .............................. 41
29 CHANGES TO PROPERTY ................................ 42
30 INTENTIONALLY OMITTED .............................. 42
31 HOLDING OVER ....................................... 42
32 LANDLORD'S ACCESS .................................. 43
33 SECURITY MEASURES .................................. 43
34 EASEMENTS .......................................... 43
35 TRANSPORTATION MANAGEMENT .......................... 43
36 SEVERABILITY ....................................... 44
37 TIME OF ESSENCE .................................... 44
38 DEFINITION OF ADDITIONAL RENT ...................... 44
39 INCORPORATION OF PRIOR AGREEMENTS .................. 44
40 AMENDMENTS ......................................... 44
41 NOTICES ............................................ 44
42 WAIVERS ............................................ 45
43 COVENANTS .......................................... 45
44 BINDING EFFECT; CHOICE OF LAW ...................... 45
45 ATTORNEYS' FEES .................................... 45
46 AUCTIONS ........................................... 45
47 SIGNS .............................................. 46
(ii)
48 MERGER ............................................. 46
49 QUIET POSSESSION ................................... 46
50 AUTHORITY .......................................... 46
51 CONFLICT ........................................... 46
52 MULTIPLE PARTIES ................................... 46
53 INTERPRETATION ..................................... 46
54 PROHIBITION AGAINST RECORDING ...................... 47
55 RELATIONSHIP OF PARTIES ............................ 47
56 RULES AND REGULATIONS .............................. 47
57 RIGHT TO LEASE ..................................... 47
58 INTENTIONALLY OMITTED .............................. 47
59 INTENTIONALLY OMITTED .............................. 47
60 ATTACHMENTS ........................................ 47
61 COSTS RELATED TO TENANT REQUESTS ................... 47
62 CONFIDENTIALITY .................................... 47
63 WAIVER OF JURY TRIAL ............................... 48
64 ACCESS TO PREMISES ................................. 48
I. GENERAL REQUIREMENTS ................................... 58
(iii)
INDEX TO DEFINED TERMS
TERM SECTION
- ---- -------
Alterations ................... 7.3(a)
Bankruptcy Code ............... 13.1(e)
Base Rent ..................... 1.14
Building ...................... 1.3
Changes ....................... 29
Comparison Year ............... 4.2(b)
Commencement Date ............. 1.11
Common Areas .................. 2.2
Condemnation .................. 15
Cost Pools .................... 4.2(c)
Damages ....................... 21
Determination Notice .......... 27.2
Expiration Date ............... 1.13
Extended Term ................. 27.1
Grossed Up Operating Expenses . 4.2
HVAC .......................... 4.2(c)
Hazardous Substance ........... 23.1
Holder ........................ 26.1
INC ........................... 4.2(c)
Indemnified Matter ............ 21
Indemnified Parties ........... 21
Land .......................... 1.4
Landlord ...................... 1.1
Medical Waste ................. 24.1
Mortgage ...................... 26.1
Net Worth ..................... 12.2
Number of Tenant Parking Spaces 1.19
Office Park ................... 1.6
Operating Cost Base Year ...... 1.18
Operating Expenses ............ 4.2(c)
Option ........................ 26.1
Permitted Use ................. 1.9
Premises ...................... 1.2
Property ...................... 1.5
Real Estate Broker ............ 1.20
Real Property Taxes ........... 10.2
Rent Commencement Date ........ 1.12
Rentable Area of Building ..... 1.8
Rentable Area of Premises ..... 1.7
Requisition ................... 3.1(c)(2)
Rules ......................... 16.1
SNDA .......................... 26.2
(iv)
Security Deposit .............. 1.16
Supplemental Systems .......... 11.5
Tax Base Year ................. 1.18
Tenant ........................ 1.1
Tenant Improvement Allowance .. 3.1(c)
Tenant Parties ................ 21
Tenant's Property ............. 9.5
Tenant's Share ................ 1.17
Term .......................... 1.10
Transfer ...................... 12.1
Transfer Premium .............. 12.6
Work Letter ................... 25
(v)
LEASE
1. BASIC LEASE PROVISIONS.
1.1. PARTIES: This Lease, dated as of June ___, 2003, made by and between
Prospect Hill Acquisition Trust, a Massachusetts trust ("LANDLORD") and The
Medicines Company, a Delaware corporation ("TENANT").
1.2 PREMISES: A portion of the third floor of the Building, as shown on
Exhibit "A" attached hereto.
1.3 BUILDING: The building known as and numbered 200 Fifth Avenue,
Waltham, Massachusetts 02451.
1.4 LAND: The Land upon which the Building is located as it may be
enlarged or reduced from time to time.
1.5 PROPERTY: The Land and the Building.
1.6 OFFICE PARK: All of the Land, buildings and improvements comprising
the Prospect Hill Office Park, including the Building and the Premises, as from
time to time constituted.
1.7 RENTABLE AREA OF PREMISES: Agreed to be 5,728 square feet.
1.8 RENTABLE AREA OF BUILDING: Agreed to be 164,786 square feet.
1.9 PERMITTED USE: General office use, subject to the requirements and
limitations contained in SECTION 6.
1.10 TERM: The period commencing on the Commencement Date and ending on
the Expiration Date.
1.11 COMMENCEMENT DATE: The Commencement Date shall be the later to occur
of August 1, 2003 or the Substantial Completion Date.
1.12 RENT COMMENCEMENT DATE: The one hundred twenty-first (121st) day
after the Commencement Date.
1.13 EXPIRATION DATE: 11:59 p.m., local time, on the day immediately
preceding the fifth anniversary of the Rent Commencement Date, provided that if
the Rent Commencement Date is other than the first day of a calendar month, then
the Expiration Date shall be 11:59 p.m., local time, on the last day of the
calendar month in which such anniversary occurs.
1.14 BASE RENT: The Base Rent is as follows:
ANNUAL MONTHLY BASE RENT PER
RENTAL PERIOD BASE RENT PAYMENT SQUARE FOOT
- ------------- --------- ------- -----------
Lease Year 1-2 $123,152 $10,262.67 $21.50
Lease Year 3 $128,880 $10,740.00 $22.50
Lease Year 4-5 $134,608 $11,217.33 $23.50
1.15 BASE RENT PAID UPON COMMENCEMENT DATE: N/A.
1.16 SECURITY DEPOSIT: $42,960.00, subject to the provisions of SECTION 5.
1.17 TENANT'S SHARE: 3.66%
1.18 TAX BASE YEAR: Fiscal Year 2004.
OPERATING COST BASE YEAR: Calendar Year 2003.
1.19 NUMBER OF TENANT PARKING SPACES: Seventeen (17) spaces (3.0 parking
spaces per 1,000 feet of Premises Rentable Area) to be used in common and on an
unassigned basis.
1.20 REAL ESTATE BROKER: Meredith & Grew, Inc. and CB Richard Ellis
1.21 ATTACHMENTS TO LEASE:
Exhibit A - Premises
Exhibit B - Verification Letter
Exhibit C - Rules and Regulations
1.22 ADDRESS FOR NOTICES:
LANDLORD: Prospect Hill Acquisition Trust
c/o Spaulding and Slye
55 Hayden Avenue
Lexington, Massachusetts 02421
Telephone No. (781) 778-2547
Fax No. (781) 778-2580
Attention: Property Manager
WITH A COPY TO: TA Associates Realty
28 State Street, 10th Floor
Boston, Massachusetts 02109
Telephone No. (617) 476-2700
Fax No. (617) 476-2799
Attention: Waltham Asset Manager
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AND: Stephen T. Langer, Esq.
40 Court Street, Suite 700
Boston, MA 02108
Telephone No. (617) 933-3830
Fax No. (617) 933-3831
TENANT:
At the Premises
Attention: Tricia Rouleau
WITH A COPY TO:
The Medicines Company
8 Campus Drive
Parsippany, NJ 07054
Attention: General Counsel
2. PREMISES
2.1 LEASE OF PREMISES. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, upon all of the conditions set forth herein, the Premises,
together with certain rights to the Common Areas as hereinafter specified.
2.2 COMMON AREAS-DEFINED. The term "COMMON AREAS" is defined as all areas
and facilities outside the Premises and within the exterior boundary line of the
Property that are designated by Landlord from time to time for the general
non-exclusive use of Landlord, Tenant and the other tenants of the Property and
their respective employees, suppliers, customers and invitees, including, but
not limited to, common entrances, lobbies, corridors, stairwells, public
restrooms, elevators, parking areas, loading and unloading areas, roadways and
sidewalks. Landlord may also designate other land and improvements outside the
boundaries of the Property in which Landlord has rights to be a part of the
Common Areas, provided that such other land and improvements have a reasonable
and functional relationship to the Property.
3. TERM.
3.1 (A) TERM, COMMENCEMENT DATE, RENT COMMENCEMENT DATE AND EXPIRATION
DATE. The Term, Commencement Date, Rent Commencement Date and Expiration Date of
this Lease are as specified in SECTIONS 1.10 1.11, 1.12 AND 1.13. As used in
this Lease, "LEASE YEAR" shall mean each period of one year during the Term
commencing on the Commencement Date or on any anniversary thereof, provided that
the first Lease Year shall consist of the period between the Commencement Date
and the last day of the calendar month in which the Rent Commencement Date
occurs and the succeeding twelve (12) full calendar months, and each succeeding
Lease Year shall consist of a one-year period commencing on the first day of the
calendar month following the calendar month in which the Rent Commencement Date
fell.
Tenant shall, within ten (10) days after Landlord's request, complete and
execute the Verification Letter attached hereto as Exhibit "B" and deliver it to
Landlord. Tenant's failure to execute the Verification Letter within said ten
(10) day period shall constitute Tenant's
3
acknowledgment of the truth of the facts contained in the letter delivered by
Landlord to Tenant. However, Landlord's failure to prepare or deliver a
Verification Letter shall have no effect on the Term, Commencement Date, Rent
Commencement Date or Expiration Date.
3.2 PREPARATION OF THE PREMISES.
(a) Landlord has prepared a space plan for the Premises showing the
general layout and location of improvements to be constructed by Landlord. The
space plan has been approved by Tenant. Promptly upon execution and delivery of
this Lease by both parties, Landlord shall have plans (the "PLANS") for the
interior finish and other tenant improvements to the Premises prepared in
accordance with Landlord's current Building standards (as set forth in SCHEDULE
A to this Lease) and otherwise in substantial accordance with information
provided to Landlord by Tenant prior to the date hereof. The Plans shall be
submitted to Tenant for its approval within forty (40) days after the date of
this Lease, and Tenant's approval shall not be unreasonably withheld or delayed.
Failure by Tenant to disapprove any submission or resubmission of the Plans
within five (5) days after submission or any resubmission shall constitute
approval thereof. Any disapproval shall be accompanied by a specific statement
of the reasons therefor. If the Plans are disapproved by Tenant because the
Plans as initially prepared were inconsistent with Building Standards or with
the information provided by Tenant prior to the date hereof as described above,
Landlord shall revise the Plans pursuant to Tenant's reasonable requests and
resubmit the revised Plans to Tenant within ten (10) business days after receipt
of Tenant's objection.
(b) Promptly after approval of the Plans (and execution of a work
letter describing the work to be performed by Landlord pursuant to the Plans
("LANDLORD'S WORK"), if requested by Landlord), Landlord shall commence and
exercise commercially reasonable efforts to complete Landlord's Work, at
Landlord's sole cost and expense.
(c) The Premises shall be deemed ready for occupancy on the first
day as of which Landlord's Work has been completed except for items of work
(and, if applicable, adjustment of equipment and fixtures) which can be
completed after occupancy has been taken without causing undue interference with
Tenant's use of the Premises (i.e. so-called "punch list" items), Landlord has
received a certificate of occupancy therefor (which certificate may be temporary
if any conditions therefor are to be performed by Tenant hereunder) and Tenant
has been given notice thereof. Such date is hereinafter called the "SUBSTANTIAL
COMPLETION DATE." Landlord shall complete as soon as conditions permit all
"punch list" items, and Tenant shall afford Landlord access to the Premises for
such purposes.
3.3 CONDITION; LANDLORD'S PERFORMANCE. Tenant shall give Landlord written
notice, not later than two calendar months after the Substantial Completion Date
(which period shall be extended to three months for any defects that could not
have been discovered by a careful visual inspection or through ordinary use), of
any respects in which Landlord has not performed Landlord's Work fully, properly
and in accordance with the terms of this Lease. Except as identified in any such
notice from Tenant to Landlord, Tenant shall have no right to make any claim
that Landlord has failed to perform any of Landlord's Work fully, properly and
in accordance with the terms of this Lease, or to require Landlord to perform
any further Landlord's Work. Except for Landlord's Work, the Premises are being
leased in their present condition, AS IS, WITHOUT REPRESENTATION OR WARRANTY by
Landlord. Tenant
4
acknowledges that it has inspected the Premises and Common Areas and, subject to
completion of Landlord's Work, has found the same satisfactory.
3.4 TENANT'S DELAYS.
(a) If a delay shall occur in the Substantial Completion Date, and
such delay would not have occurred but for the occurrence of any of the
following:
(i) any request by Tenant that Landlord delay the
commencement or completion of Landlord's Work for any
reason;
(ii) any change by Tenant in any of the Plans after initial
approval thereof by Tenant;
(iii) any other wrongful act or omission of Tenant or its
officers, agents, employees or contractors;
(iv) any special requirement of the Plans not in accordance
with Landlord's building standard; or
(v) any reasonably necessary displacement of any of
Landlord's Work from its place in Landlord's
construction schedule resulting from any of the causes
for delay referred to in this PARAGRAPH (A) and the
fitting of such Landlord's Work back into such schedule;
then Tenant shall, from time to time and within ten (10) days after demand
therefor, pay to Landlord for each day of such delay the amount of Base Rent,
Additional Rent and other charges that would have been payable hereunder had the
Tenant's obligation to pay Base Rent (without regard to any period of free rent)
commenced immediately prior to such delay. As to matters described in clauses
(ii) - (iv) above, Landlord shall advise Tenant of any delay that Landlord knows
is reasonably likely to occur as a result of the matter described, within a
reasonable time after Landlord becomes aware of such likelihood.
(b) If a delay in the Substantial Completion Date, or if any
substantial portion of such delay, is the result of Force Majeure, and such
Force Majeure delay would not have occurred but for a delay described in
PARAGRAPH (A), such Force Majeure delay shall be added to the delay described in
PARAGRAPH (A).
(c) The delays referred to in PARAGRAPHS (A) and (B) are herein
referred to collectively and individually as "TENANT'S DELAY."
(d) If for any reason other than Force Majeure or a Tenant's Delay,
the Substantial Completion Date has not occurred by August 31, 2003, and for so
long as no Event of Default occurs hereunder, Tenant shall be entitled to a rent
credit equal to five hundred dollars ($500.00) for each day after August 31,
2003 that the Substantial Completion Date has not occurred. Such credit shall be
Tenant's sole and exclusive remedy at law or in equity for any such late
completion. Such credit shall be applied to Base Rent coming due commencing on
the Rent Commencement Date.
3.5 EARLY ACCESS. Tenant shall have access to the Premises not later than
fourteen (14) days prior to the Commencement Date solely for the purpose of
installation of furniture,
5
equipment, and telephone/data wiring, provided that such access shall be subject
to all of the terms and conditions of this Lease, other than the payment of Base
Rent. Tenant's access shall be subject to reasonable scheduling and other
requirements of Landlord and Landlord's contractor, and Tenant shall deliver to
Landlord certificates of liability, casualty and workmen's compensation
insurance prior to having any such access. Any interference with Landlord's Work
as a result of Tenant's early access shall constitute a Tenant Delay.
4. RENT.
4.1 BASE RENT. Tenant shall pay to Landlord the Base Rent set forth in
SECTION 1.14, without offset or deduction, commencing on the Rent Commencement
Date, and thereafter on the first day of each calendar month. Base Rent for any
period during the term hereof which is for less than one (1) month shall be
prorated based upon the actual number of days of the calendar month involved.
Base Rent and all other amounts payable to Landlord hereunder shall be payable
to Landlord in lawful money of the United States, and Tenant shall be
responsible for delivering said amounts to Landlord at the address stated herein
or to such other person or to such other place in the continental United States
as Landlord may designate in writing. Landlord and Tenant agree that all amounts
due from Tenant under or in respect of this Lease, whether labeled Base Rent,
additional rent, additional charges or otherwise, shall be considered as rental
reserved under this Lease for all purposes, including without limitation
regulations promulgated pursuant to the Bankruptcy Code, and including further
without limitation Section 502(b) thereof.
4.2 OPERATING EXPENSE INCREASES. Tenant shall pay to Landlord during the
term hereof, in addition to the Base Rent, Tenant's Share of the amount by which
all Operating Expenses for each Comparison Year exceed the amount of all
Operating Expenses for the Operating Cost Base Year. If less than 95% of the
rentable square feet in the Building is occupied by tenants or Landlord is not
supplying services to tenants occupying 95% of the rentable square feet of the
Building at any time during any calendar year (including the Operating Cost Base
Year), Operating Expenses for such calendar year shall be reasonably
extrapolated by Landlord, on an item-by-item basis, to the amount of Operating
Expenses that would normally be expected to be incurred had 95% of the
Building's rentable square feet been occupied and had Landlord been supplying
services to tenants occupying 95% of the Building's rentable square feet
throughout such calendar year (hereinafter the "GROSSED UP OPERATING EXPENSES"),
and such amount shall be the Operating Expenses for such calendar year.
Landlord's good faith estimate of Grossed Up Operating Expenses shall not be
subject to challenge or recalculation by Tenant. Tenant's Share of Operating
Expense increases shall be determined in accordance with the following
provisions:
(a) "TENANT'S SHARE" is defined as the percentage set forth in
SECTION 1.17, which percentage has been determined by dividing the Rentable Area
of Premises by ninety-five percent (95%) of the Rentable Area of Building, and
multiplying the resulting quotient by one hundred (100). In the event that the
Rentable Area of Premises or the Rentable Area of Building changes, Tenant's
Share shall be adjusted in the year the change occurs, and Tenant's Share for
such year shall be determined on the basis of the days during such year that
each Tenant's Share was in effect.
6
(b) For purposes of determining Tenant's Share of Operating Expense
increases, "COMPARISON YEAR" is defined as each calendar year during the term of
this Lease after the Operating Cost Base Year. In the event of any partial
Comparison Years during the Term, Tenant's Share of the Operating Expense
increases therefor shall be prorated according to that portion of such
Comparison Year as to which Tenant is responsible for a share of such increase.
For purposes of determining Tenant's Share of Real Property Tax increases,
"Comparison Year" is defined as each tax fiscal year during the term of this
Lease after the Tax Base Year. Tenant's Share of Real Property Tax increases for
any partial Comparison Years during the Term shall be prorated according to that
portion of such Comparison Year as to which Tenant is responsible for a share of
such increase.
(c) "OPERATING EXPENSES" shall mean all costs, expenses and fees
incurred by Landlord in connection with or attributable to the Property,
including but not limited to, the following items: (i) all costs, expenses and
fees associated with or attributable to the ownership, management, operation,
repair, maintenance, improvement, alteration and replacement of the Property, or
any part thereof, including but not limited to, the following: (A) all surfaces,
coverings, decorative items, carpets, drapes, window coverings, parking areas,
loading and unloading areas, trash areas, roadways, sidewalks, stairways,
landscaped areas, striping, bumpers, irrigation systems, lighting facilities,
building exteriors and roofs, fences and gates; (B) all heating, ventilating and
air conditioning equipment ("HVAC") (including, but not limited to, the cost of
replacing or retrofitting HVAC equipment to comply with laws regulating or
prohibiting the use or release of chlorofluorocarbons or
hydrochlorofluorocarbons), plumbing, mechanical, electrical systems, life safety
systems and equipment, telecommunication equipment, elevators, escalators,
tenant directories, fire detection systems including sprinkler system
maintenance and repair; (ii) the cost of trash disposal, janitorial services and
security services and systems; (iii) the cost of all insurance purchased by
Landlord pursuant to SECTION 8 of this Lease, including any deductibles; (iv)
the cost of water, sewer, gas, electricity, and other utilities available at the
Property and paid by Landlord; (v) the cost of labor, salaries and applicable
fringe benefits incurred by Landlord; (vi) the cost (purchase or rental) of
materials, supplies and tools used in operating, managing, maintaining,
repairing and/or cleaning the Property; (vii) the cost of accounting fees,
management fees, legal fees and consulting fees attributable to the ownership,
operation, management, maintenance and repair of the Property plus the cost of
any space occupied by the property manager and leasing agent (provided that if
the Property is managed by Landlord or an affiliate of Landlord, the management
fee so included in Operating Expenses shall not exceed a commercially reasonable
management fee that would be paid to an unaffiliated manager for like property
management services); (viii) the cost of replacing, modifying and/or adding
improvements or equipment mandated by any law, statute, regulation or directive
of any governmental agency and any repairs, disposals or removals necessitated
thereby (including, but not limited to, the cost of complying with the Americans
With Disabilities Act); (ix) payments made by Landlord under any easement,
license, operating agreement, declaration, restrictive covenant, or instrument
pertaining to the payment or sharing of costs among property owners; (x) any
business property taxes or personal property taxes imposed upon the fixtures,
machinery, equipment, furniture and personal property used in connection with
the operation of the Property; (xi) the cost of all business licenses, any gross
receipt taxes based on rental income or other payments received by Landlord,
commercial rental taxes or any similar taxes or fees; (xii) transportation
taxes, fees or assessments, including but not limited to, mass transportation
fees, metrorail fees, trip fees, regional and transportation
7
district fees, (xiii) all costs and expenses associated with or related to the
implementation or support by Landlord of any vanpool or other traffic management
or transportation demand management or similar program; (xiv) fees assessed by
any air quality management district or other governmental or quasi-governmental
entity regulating pollution; (xv) the cost of installing intrabuilding network
cabling ("INC") and maintaining, repairing, securing and replacing existing INC;
and (xvi) the cost of any other service provided by Landlord to all tenants of
the Building or any cost that is elsewhere stated in this Lease to be an
Operating Expense; and (xvii) the Property's share of the costs of operating and
maintaining the Office Park, payable by Landlord as owner of the Property. Real
Property Taxes shall be paid in accordance with SECTION 10 below and shall not
be included in Operating Expenses. Landlord shall have the right but not the
obligation, from time to time, to equitably allocate some or all of the
Operating Expenses among different tenants of the properties owned by Landlord
or its affiliates within the Office Park or among the different buildings owned
by Landlord or its affiliates within the Office Park (the "COST POOLS"). Such
Cost Pools may include, but shall not be limited to, the office space tenants of
such buildings and the retail space tenants of such buildings.
(d) Operating Expenses shall not include: (i) depreciation of the
Building; (ii) interest on and amortization of debt (other than amortization of
capital expenditures as set forth above), and/or ground rent; (iii) the costs of
leasehold improvements, including redecorating work; (iv)fees and expenses
(including legal and brokerage fees) for procuring new tenants; (v) costs
incurred in financing or refinancing of the Building or any portion thereof;
(vi) the cost of any item included in Operating Expenses hereunder to the extent
that Landlord is actually reimbursed for such cost by an insurance company, a
condemning authority, another tenant or any other party; (vii) the cost of
remediation of environmental contamination on the Property, except to the extent
that the need therefor arises from any act or omission of Tenant or Tenant's
employees, agents or contractors, or from any default on the part of Tenant
hereunder; (viii) the cost of correcting defects in the original construction of
the Building, except that conditions (other than construction defects) resulting
from ordinary wear and tear shall not be considered defects for purposes hereof;
(ix) expenses in connection with services or other benefits which are not
offered to Tenant or for which Tenant is charged directly; (x) salaries and
other benefits paid to the employees of Landlord to the extent included in or
covered by a management fee, provided that in no event shall Operating Expenses
include salaries and/or benefits attributable to personnel above the level of
property manager; (xi) costs associated with the operation of the business of
the entity which constitutes Landlord as the same are distinguished from the
costs of operation of the Property, including accounting and legal matters,
costs of defending any lawsuits with any mortgagee (except as the actions of
Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord's interest in the Building, costs incurred in
connection with any disputes between Landlord and its employees, between
Landlord and Building management, or between Landlord and other tenants or
occupants; (xii) capital expenditures other than as set forth in paragraph 4.2
(e) below; (xiii) costs (if any) incurred in making the Building comply with
applicable laws and codes in effect and applicable thereto as of the date
hereof; and (xiv) costs and expenses of a type or category not included in Base
Operating Expenses (unless a suitable corresponding adjustment shall be made in
Base Operating Expenses).
(e) If the cost incurred in making an improvement or replacing any
equipment is not fully deductible as an expense in the year incurred in
accordance with generally accepted
8
accounting principles, the cost shall be amortized over the useful life of the
improvement or equipment, as reasonably determined by Landlord, together with an
interest factor on the unamortized cost of such item equal to the lesser of (i)
eight percent (8%) per annum or (ii) the maximum rate of interest permitted by
applicable law.
(f) Tenant's Share of Operating Expense increases shall be payable
by Tenant within ten (10) days after a reasonably detailed statement of actual
expenses is presented to Tenant by Landlord. At Landlord's option, however,
Landlord may, from time to time, estimate what Tenant's Share of Operating
Expense increases will be, and the same shall be payable by Tenant in monthly
installments during each Comparison Year of the Lease Term, on the same day as
the Base Rent is due hereunder. In the event that Tenant pays Landlord's
estimate of Tenant's Share of Operating Expense increases, Landlord shall use
its best efforts to deliver to Tenant within one hundred eighty (180) days after
the expiration of each Comparison Year a reasonably detailed statement showing
Tenant's Share of the actual Operating Expense increases incurred during such
year. Landlord's failure to deliver the statement to Tenant within said period
shall not constitute Landlord's waiver of its right to collect said amounts or
otherwise prejudice Landlord's rights hereunder. If Tenant's payments under this
SECTION 4.2(F) during said Comparison Year exceed Tenant's Share as indicated on
said statement, Tenant shall be entitled to credit the amount of such
overpayment against Tenant's Share of Operating Expense increases next falling
due. If Tenant's payments under this SECTION 4.2(F) during said Comparison Year
were less than Tenant's Share as indicated on said statement, Tenant shall pay
to Landlord the amount of the deficiency within thirty (30) days after delivery
by Landlord to Tenant of said statement. Landlord and Tenant shall forthwith
adjust between them by cash payment any balance determined to exist with respect
to that portion of the last Comparison Year for which Tenant is responsible for
Operating Expense increases, notwithstanding that the Lease term may have
terminated before the end of such Comparison Year; and this provision shall
survive the expiration or earlier termination of the Lease.
(g) Provided that Tenant has made all payments claimed by Landlord
to be due (which payment shall be without prejudice to Tenant's rights
hereunder), Tenant shall, for a period of six (6) months after receipt by Tenant
of Landlord's annual accounting of Operating Expenses, and upon at least five
(5) business days' advance notice to Landlord, have the right to commence (and
thereafter diligently prosecute) a review of Landlord's records relating to
Operating Expenses for the Operating Year reflected in such accounting to verify
the accuracy of the information set forth therein. Such review shall be
conducted at the Property (or at the offices of Landlord's managing agent)
during normal business hours. In the event that, as a result of Tenant's review,
a dispute arises with respect to Landlord's accounting, Tenant shall so advise
Landlord within thirty (30) days after the completion of such review and, if
such dispute cannot be resolved by negotiation within thirty (30) days after
such notice from Tenant, either party may submit the question to arbitration
under the Commercial Arbitration Rules of the American Arbitration Association,
except that there shall be only one arbitrator, who shall have had at least ten
(10) years' experience as a building or property manager of suburban office
building in the greater Boston/Route 128 market. The Landlord and Tenant shall
mutually select the arbitrator in good faith, and the fees and costs of the
arbitrator shall be borne evenly by the parties. The decision of such arbitrator
shall be conclusive and binding on the parties. In the event that either Tenant
and Landlord agree, or the arbitrator determines, that Landlord's accounting was
overstated by any amount, Landlord shall promptly apply the excess amounts paid
by Tenant to
9
Tenant's next payments(s) on account of Tenant under this Lease. If it is so
agreed or determined that Landlord's accounting was understated, then Tenant
shall promptly pay any remaining amount to Landlord. If (i) Tenant does not
elect to review Landlord's records within such 6-month period, or (ii) neither
party elects to submit the foregoing dispute to arbitration within fifteen (15)
days after the expiration of such 30-day period, then Landlord's accounting
shall be conclusively be deemed to be correct and accurate.
(h) The computation of Tenant's Share of Operating Expense increases
is intended to provide a formula for the sharing of costs by Landlord and Tenant
and will not necessarily result in the reimbursement to Landlord of the exact
costs it has incurred.
5. SECURITY DEPOSIT. Tenant shall deliver to Landlord at the time of execution
of this Lease by Tenant the security deposit set forth in SECTION 1.16 as
security for Tenant's faithful performance of Tenant's obligations hereunder. If
Tenant fails to pay Base Rent or other charges due hereunder, or otherwise
defaults with respect to any provision of this Lease, Landlord may (but shall
have no obligation to) use all or any portion of said deposit for the payment of
any Base Rent or other charge due hereunder, to pay any other sum to which
Landlord may become obligated by reason of Tenant's default, or to compensate
Landlord for any loss or damage which Landlord may suffer thereby. If Landlord
so uses or applies all or any portion of said deposit, Tenant shall within ten
(10) days after written demand therefor deposit cash with Landlord in an amount
sufficient to restore said deposit to its full amount. Landlord shall not be
required to keep said security deposit separate from its general accounts. So
long as (i) at the first anniversary of the Rent Commencement Date, there exists
no Event of Default or other event or circumstance which, with the giving of
notice or the passage of time, or both, would constitute an Event of Default,
(ii) at the first anniversary of the Rent Commencement Date, there has existed
no Event of Default under the terms of this Lease; and (iii) at the first
anniversary of the Rent Commencement Date this Lease is in full force and
effect; then Tenant shall be entitled by written notice to Landlord to reduce
the security deposit to $21,480.00. Landlord shall refund to Tenant the amount
of any reduction within ten (10) business days after receipt of Tenant's written
request therefor. If Tenant performs all of Tenant's obligations hereunder, said
deposit, or so much thereof as shall not then have been applied by Landlord,
shall be returned, without payment of interest or other amount for its use, to
Tenant (or, at Landlord's option, to the last assignee, if any, of Tenant's
interest hereunder) within a reasonable time (not to exceed ninety (90) days)
after the expiration of the Term hereof, and after Tenant has vacated and
delivered the Premises as required hereunder. Landlord may retain an amount
reasonably calculated to be sufficient to pay any final amount of Taxes or
Operating Expenses for the Comparison Year in which the Term ends. No trust
relationship is created herein between Landlord and Tenant with respect to said
security deposit. Tenant acknowledges that the security deposit is not an
advance payment of any kind or a measure of or limit on Landlord's damages in
the event of Tenant's default. Any application of the security deposit by
Landlord shall be without prejudice to any other right or remedy. If Landlord
conveys Landlord's interest under this Lease, the security deposit, or any part
thereof not previously applied, shall be turned over by Landlord to Landlord's
grantee, and, when so turned over, Tenant agrees to look solely to such grantee
for proper application of the security deposit in accordance with the terms of
this SECTION 5, and the return thereof in accordance herewith. The holder of a
mortgage shall not be responsible to Tenant for the return or application of any
such deposit, whether or not it succeeds to the position of Landlord hereunder,
unless such deposit shall have been received in hand by such holder.
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6. PERMITTED USE.
6.1 PERMITTED USE. The Premises shall be used and occupied only for the
Permitted Use set forth in SECTION 1.9 and for no other purpose. If SECTION 1.9
gives Tenant the right to use the Premises for general office use, by way of
example and not limitation, general office use shall not include medical or
dental office use or any similar use, offices of a governmental agency or
authority, clinic or laboratory use, classroom use, or any other use not
characterized by applicable zoning and land use restrictions as general office
use, or any use which would require Landlord or Tenant to obtain a conditional
use permit, special permit or variance from any federal, state or local
authority. Notwithstanding any Permitted Use set forth in SECTION 1.9, Tenant
shall not use the Premises for any purpose that would violate the Building's
certificate of occupancy, any conditional use permit, special permit or variance
applicable to the Property or violate any covenants, conditions or other
restrictions applicable to the Building or the Property. No exclusive use has
been granted to Tenant hereunder.
6.2 COMPLIANCE WITH LAW. Tenant shall, at Tenant's sole expense, promptly
comply with all applicable laws and ordinances, governmental rules, regulations,
and orders, certificates of occupancy, conditional use or other permits,
variances, covenants and restrictions of record, the recommendations of
Landlord's engineers or other consultants, and requirements of any fire
insurance underwriters, rating bureaus or government agencies, now in effect or
which may hereafter come into effect, whether or not they reflect a change in
policy from that now existing, during the Term or any part of the Term hereof,
relating in any manner to the Premises and the occupation and use by Tenant of
the Premises. Except as otherwise provided in Section 7.1 below, Tenant shall,
at Tenant's sole expense, comply with all requirements of the Americans With
Disabilities Act that relate to the Premises, and all federal, state and local
laws and regulations governing occupational safety and health. Tenant shall
conduct its business and use the Premises in a lawful manner and shall not use
or permit the use of the Premises or the Common Areas in any manner that will
tend to create waste or a nuisance or shall tend to disturb other occupants of
the Building or the Office Park. Tenant shall obtain, at its sole expense, any
permit or other governmental authorization required to operate its business from
the Premises. Landlord shall not be liable for the failure of any other tenant
or person to abide by the requirements of this Section 6 or to otherwise comply
with applicable laws and regulations and, to the extent permitted by law, Tenant
shall not be excused from the performance of its obligations under this Lease
due to such a failure.
6.3 CONDITION OF PREMISES. Subject to completion of Landlord's Work,
Tenant hereby accepts the Premises and the Building in their condition existing
as of the date this Lease is executed by Landlord and Tenant, subject to all
applicable federal, state and local laws, ordinances, regulations and permits
governing the use of the Premises, the Building's certificate of occupancy, any
applicable permits, approvals or variances, and any easements, covenants or
restrictions affecting the use of the Premises or the Property. Tenant
acknowledges that it has satisfied itself by its own independent investigation
that the Premises and the Property are suitable for its intended use, and that
neither Landlord nor Landlord's agents has made any representation or warranty
as to the present or future suitability of the Premises, or the Building or the
Property for the conduct of Tenant's business.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
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7.1 LANDLORD'S OBLIGATIONS. Landlord shall keep the Building (excluding
the interior of the Premises and space leased to other occupants of the
Building) in good condition and repair. If plumbing pipes, electrical wiring, or
HVAC ducts or vents within the Premises are in need of repair, Tenant shall
immediately notify Landlord, and Landlord shall cause the repairs to be
completed within a reasonable time, and Tenant shall immediately pay the entire
cost of the repairs to Landlord. Except as provided in SECTION 9.3, there shall
be no abatement of rent or liability to Tenant on account of any injury or
interference with Tenant's business with respect to any improvements,
alterations or repairs made by Landlord to the Property or any part thereof. To
the extent permitted by law, Tenant expressly waives the benefits of any statute
now or hereafter in effect which would otherwise afford Tenant the right to make
repairs at Landlord's expense or to terminate this Lease because of Landlord's
failure to keep the Property in good order, condition and repair. Landlord shall
never be liable for any failure to make repairs which Landlord has undertaken to
make under the provisions of this SECTION 7.1 or elsewhere in this Lease, unless
Tenant has given notice to Landlord of the need to make such repairs, and
Landlord has failed to commence to make such repairs within a reasonable time
after receipt of such notice, or fails to proceed with reasonable diligence to
complete such repairs. Landlord represents to Tenant that, as of the date
hereof, Landlord has not actually received any written notice from any
governmental or judicial agency claiming that the Premises are in violation of
any applicable laws. If, during the Term of this Lease, any alterations or
modifications to the Building or the Premises shall be required by the Americans
With Disabilities Act of 1990 ("ADA"), and such requirement was in effect and
applicable to the Premises or the Building, as the case may be, on the date of
this Lease and the need for such alteration or modification is not due to the
particular needs of any employee, invitee or contractor of Tenant or to any
breach by Tenant of its covenants or obligations hereunder or to any use by
Tenant of the Premises other than general business offices then, subject to
Landlord's right to contest the validity or applicability of any such
requirement, and provided that the Building or the Premises (as the case may be)
does not have the benefit of any "grandfather" clause or similar waiver or
exception, Landlord shall be responsible for complying with such requirements,
and Tenant shall not bear any portion of the cost of such compliance.
Notwithstanding any of the foregoing to the contrary, Tenant shall be solely
responsible for making any accommodations or providing any equipment or
furnishings required under ADA or any comparable state or local law, regulation
or ordinance as a result of the needs of any employee, invitee or contractor of
Tenant.
7.2 TENANT'S OBLIGATIONS.
(a) Subject to the requirements of SECTION 7.3, Tenant shall be
responsible for keeping the Premises in good condition and repair, at Tenant's
sole expense. By way of example, and not limitation, Tenant shall be
responsible, at Tenant's sole expense, for repairing and/or replacing carpet,
marble, tile or other flooring, paint, wall coverings, corridor and interior
doors and door hardware, telephone and computer equipment, interior glass,
window treatments, ceiling tiles, shelving, cabinets, millwork and other tenant
improvements. In addition, Tenant shall be responsible for the installation,
maintenance and repair of all of Tenant's required telephone, computer, and
related cabling from the telephone terminal room on the floor on which the
Premises is located to and throughout the Premises, and Tenant shall be
responsible for any loss, cost, damage, liability and expense (including
attorneys' fees) arising out of or related to the installation, maintenance,
repair and replacement of such cabling. If Tenant fails to keep the Premises in
good condition and repair, Landlord may, but shall not be obligated to, make any
12
necessary repairs. If Landlord makes such repairs, Landlord may bill Tenant for
the cost of the repairs as additional rent, and said additional rent shall be
payable by Tenant within ten (10) days.
(b) On the last day of the Term hereof, or on any sooner
termination, Tenant shall surrender the Premises, together with any Alterations
made by Tenant in accordance with this Lease and which Tenant is not obligated
to remove pursuant to SECTION 7.3, to Landlord in the condition in which Tenant
is required to keep the Premises pursuant to SECTION 7.2(A), ordinary wear and
tear excepted, clean and free of debris and Tenant's personal property. Tenant
shall repair any damage to the Premises occasioned by the installation or
removal of Tenant's personal property, trade fixtures, furnishings and equipment
and any Alterations that Landlord requires Tenant to remove pursuant to SECTION
7.3. Unless Landlord otherwise requires pursuant to SECTION 7.3, Tenant shall
leave the electrical distribution systems, plumbing systems, lighting fixtures,
HVAC ducts and vents, window treatments, wall coverings, carpets and other floor
coverings, doors and door hardware, millwork, ceilings and other tenant
improvements at the Premises and in good condition, ordinary wear and tear
excepted. Notwithstanding the foregoing, Tenant shall not pull or otherwise
remove any computer network cabling, telephone cabling or similar items which
Tenant has installed in the Premises, without Landlord's prior written consent.
In the event of any such removal, Tenant shall repair any damage to the Premises
occasioned thereby.
7.3 ALTERATIONS AND ADDITIONS.
(a) Tenant shall not, without Landlord's prior written consent, make
any alterations, improvements, additions, utility installations or repairs
(hereinafter collectively referred to as "Alterations") in, on or about the
Premises or the Property. Landlord's consent shall not be unreasonably withheld,
delayed or conditioned with respect to proposed Alterations that do not affect
the electrical, mechanical or plumbing systems in or serving the Premises.
Alterations shall include, but shall not be limited to, the installation or
alteration of security or fire protection systems, communication systems,
millwork, shelving, file retrieval or storage systems, carpeting or other floor
covering, window and wall coverings, electrical distribution systems, lighting
fixtures, telephone or computer system wiring, HVAC and plumbing. Tenant shall
not be obligated to remove the original tenant improvements made to the Premises
by Landlord, or any Alterations made by Tenant for which Landlord's consent was
required, except to the extent specified by Landlord at the time of Landlord's
consent (provided that Tenant may in any event remove the same at or prior to
the expiration or earlier termination of this Lease). Tenant, at its expense,
shall repair any damage to the Building caused by removal of any Alterations,
equipment, fixtures or other property of Tenant constructed in accordance with
the work letter agreement, except to the extent provided therein. If, as a
result of any Alteration made by Tenant, Landlord is obligated to comply with
the ADA or any other law or regulation and such compliance requires Landlord to
make any improvement or alteration to any portion of the Building or the Office
Park, as a condition to Landlord's consent (if specified as a condition to such
consent), Landlord shall have the right to require Tenant to pay to Landlord
prior to the construction of any Alteration by Tenant, the entire cost of any
improvement or alteration Landlord is obligated to complete by such law or
regulation. In any case, with respect to any Alterations (or any group or series
of related alterations comprising one project) costing Ten Thousand Dollars
($10,000) or more, Tenant shall pay to Landlord a fee equal to four percent
13
(4%) of the cost any Alteration for which Tenant requests Landlord's consent to
compensate Landlord for the overhead and other costs it incurs in reviewing the
plans for the Alterations and in monitoring the construction of the Alterations.
With respect to Alterations costing less than Ten Thousand Dollars ($10,000.00),
Tenant shall reimburse Landlord for its costs as provided in SECTION 61. Should
Landlord permit Tenant to make its own Alterations, Tenant shall use only such
contractor as has been expressly approved by Landlord, which approval shall not
be unreasonably withheld and Landlord may require Tenant to provide to Landlord,
at Tenant's sole cost and expense, a lien and completion bond in an amount equal
to one and one-half times the estimated cost of such Alterations, to insure
Landlord against any liability for mechanic's and materialmen's liens and to
insure completion of the work. Should Tenant make any Alterations without the
prior approval of Landlord, or use a contractor not expressly approved by
Landlord, Landlord may, at any time during the term of this Lease, require that
Tenant remove all or part of the Alterations and return the Premises to the
condition it was in prior to the making of the Alterations. In the event Tenant
makes any Alterations, Tenant agrees to obtain or cause its contractor to
obtain, prior to the commencement of any work, "builders all risk" insurance in
an amount reasonably approved by Landlord and workers compensation insurance.
(b) Any request for Landlord's consent to Alterations in or about
the Premises that Tenant shall desire to make shall be presented to Landlord in
written form, with plans and specifications which are sufficiently detailed to
obtain a building permit (if and to the extent necessary in light of the
Alterations being proposed). If Landlord consents to an Alteration, the consent
shall be deemed conditioned upon Tenant acquiring a building permit (if
necessary) and any other licenses, permits, approvals or authorizations required
therefor from the applicable governmental agencies, furnishing copies thereof to
Landlord prior to the commencement of the work, and compliance by Tenant with
all conditions of said permits, licenses, approvals and authorizations in a
prompt and expeditious manner. Tenant shall provide Landlord with as-built plans
and specifications for any Alterations made to the Premises.
(c) Tenant shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant at or for use in
the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises or the Office Park, or any interest
therein. If Tenant shall, in good faith, contest the validity of any such lien,
Tenant shall furnish to Landlord a surety bond satisfactory to Landlord in an
amount equal to not less than one and one half times the amount of such
contested lien claim indemnifying Landlord against liability arising out of such
lien or claim. Such bond shall be sufficient in form and amount to free the
Property from the effect of such lien. In addition, Landlord may require Tenant
to pay Landlord's reasonable attorneys' fees and costs in participating in such
action.
(d) Tenant shall give Landlord not less than ten (10) days' advance
written notice prior to the commencement of any work in the Premises by Tenant,
and Landlord shall have the right to post notices of non-responsibility in or on
the Premises or the Property.
(e) All Alterations (whether or not such Alterations constitute
trade fixtures of Tenant) which may be made to the Premises by Tenant shall be
paid for by Tenant, at Tenant's sole expense, and shall be made and done in a
good and workmanlike manner and with new materials satisfactory to Landlord, and
such Alterations shall be the property of Landlord and remain upon and be
surrendered with the Premises at the expiration of the Lease Term, unless
14
Landlord requires their removal pursuant to SECTION 7.3(A). Provided Tenant is
not in default, Tenant's personal property and equipment, other than that which
is affixed to the Premises so that it cannot be removed without material damage
to the Premises or the Property, shall remain the property of Tenant and may be
removed by Tenant subject to the provisions of SECTION 7.2(B).
7.4 FAILURE OF TENANT TO REMOVE PROPERTY. If this Lease expires or is
otherwise terminated, and Tenant fails to remove its property as required by
SECTION 7.2(B), in addition to any other remedies available to Landlord under
this Lease, and subject to any other right or remedy Landlord may have under
applicable law, Landlord may remove any property of Tenant from the Premises and
store the same elsewhere at the expense and risk of Tenant. If such property is
not claimed, and all of Landlord's costs and expenses of removal and storage
(and other amounts owed by Tenant to Landlord) are not paid in full, within
thirty (30) days after such removal, Landlord may at its option dispose of the
same in any manner Landlord in its sole discretion deems appropriate, and any
proceeds realized by Landlord shall be applied to Landlord's costs and expenses
and other amounts owed by Tenant to Landlord.
8. INSURANCE.
8.1 INSURANCE-TENANT.
(a) Tenant shall obtain and keep in force during the term of this
Lease a commercial general liability policy of insurance with coverages
reasonably acceptable to Landlord, in Landlord's sole discretion, which, by way
of example and not limitation, protect Tenant and Landlord, any lender of
Landlord and such other persons as Landlord may reasonably request as additional
insureds, against claims for bodily injury, personal injury and property damage
based upon, involving or arising out of the use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be on an
occurrence basis providing single limit coverage in an amount not less than
$2,000,000 per occurrence with an "Additional Insured-Managers and Landlords of
Premises Endorsement" and contain the "Amendment of the Pollution Exclusion" for
damage caused by heat, smoke or fumes from a hostile fire. The policy shall not
contain any intra-insured exclusions as between insured persons or
organizations, but shall include coverage for liability assumed under this Lease
as an "insured contract" and for the performance of Tenant's indemnity
obligations under this Lease, as the same may be amended or modified from time
to time.
(b) Tenant shall obtain and keep in force during the term of this
Lease all-risk extended coverage (i.e., so-called "special form") property
insurance with coverages acceptable to Landlord, in Landlord's sole discretion.
Said insurance shall be written on a one hundred percent (100%) replacement cost
basis on Tenant's personal property, all tenant improvements installed at the
Premises by Landlord or Tenant, Tenant's trade fixtures and other property. Such
policies shall provide protection against any peril included within the
classification "fire and extended coverage," or "special form coverage" against
vandalism and malicious mischief, theft, sprinkler leakage, earthquake damage
and flood damage. Tenant may choose not to have casualty insurance on its
personal property and trade fixtures against earthquake damage and flood damage,
but if Tenant does not carry such insurance, Tenant shall not make any claim
against Landlord or Landlord's insurer(s) on account of any loss of or damage to
Tenant's personal property and trade fixtures arising from such perils, and
Tenant hereby waives and
15
releases Landlord from all such losses and claims. If this Lease is terminated
as the result of a casualty in accordance with SECTION 9, the proceeds of all
insurance attributable to the replacement of tenant improvements at the Premises
shall be paid to Landlord.
(c) Tenant shall, at all times during the term hereof, maintain in
effect workers' compensation insurance as required by applicable law. Tenant may
elect not to carry business interruption insurance with respect to its
operations at the Premises, as Tenant intends to carry on its business
operations from other locations in the event of any interruption at the
Premises. However, if Tenant does not carry such insurance, Tenant shall not
make any claim against Landlord or Landlord's insurer(s) on account of any loss
that would have been covered or reimbursed by business interruption insurance
(including without limitation any amount that would have been covered by extra
expense coverage), and Tenant hereby waives and releases Landlord from all such
losses and claims.
(d) From time to time, upon not less than thirty (30) days prior
written notice to Tenant, Landlord may require Tenant to carry such additional
insurance or higher coverage amounts as landlords of comparable buildings in the
geographical area of the Property are requiring of their tenants.
8.2 INSURANCE-LANDLORD.
(a) Landlord shall obtain and keep in force a policy of general
liability insurance providing coverage to Landlord with respect to liability
arising out of the ownership, operation and management of the Property.
(b) Landlord shall also obtain and keep in force during the Term of
this Lease a policy or policies of insurance covering loss or damage to the
Property in the amount of not less than one hundred percent (100%) of the full
replacement cost thereof, as determined by Landlord from time to time. The terms
and conditions of said policies and the perils and risks covered thereby shall
be determined by Landlord, from time to time, in Landlord's sole discretion. In
addition, at Landlord's option, Landlord shall obtain and keep in force, during
the term of this Lease, a policy of rental interruption insurance, with loss
payable to Landlord, which insurance shall, at Landlord's option, also cover all
Operating Expenses. At Landlord's option, Landlord may obtain insurance
coverages and/or bonds related to the operation of the parking areas. In
addition, Landlord shall have the right to obtain such additional insurance as
is customarily carried by owners or operators of other comparable office
buildings in the geographical area of the Property. Tenant will not be named as
an additional insured in any insurance policies carried by Landlord and shall
have no right to any proceeds therefrom. The policies purchased by Landlord
shall contain such commercially reasonable deductibles as Landlord may
determine. In addition to amounts payable by Tenant in accordance with SECTION
4.2, Tenant shall pay any increase in the property insurance premiums for the
Property over what was payable immediately prior to the increase to the extent
the increase is specified by Landlord's insurance carrier as being caused by the
nature of Tenant's occupancy (to the extent other than general office uses) or
any act or omission of Tenant.
8.3 INSURANCE POLICIES. Tenant shall deliver to Landlord copies of the
insurance policies required under SECTION 8.1 not later than fifteen (15) days
prior to the Commencement Date of this Lease, and Landlord shall have the right
to approve the terms and conditions of said
16
policies. Tenant's insurance policies shall not be cancelable or subject to
reduction of coverage or other modification except after thirty (30) days'
(except ten (10) days for non-payment) prior written notice to Landlord. Tenant
shall, at least thirty (30) days prior to the expiration of such policies,
furnish Landlord with renewals thereof. Tenant's insurance policies shall be
issued by insurance companies authorized to do business in the state in which
the Property is located, and said companies shall maintain during the policy
term a "General Policyholder's Rating" of at least A-X (or such other rating as
may be required by any lender having a lien on the Property) as set forth in the
most recent edition of "Best Insurance Reports." All insurance obtained by
Tenant shall be primary to and not contributory with any similar insurance
carried by Landlord, whose insurance shall be considered excess insurance only.
Landlord, and at Landlord's option, the holder of any mortgage or deed of trust
encumbering the Office Park and any person or entity managing the Office Park on
behalf of Landlord, shall be named as an additional insured on all insurance
policies Tenant is obligated to obtain by SECTION 8.1 above. Tenant's insurance
policies shall not include deductibles in excess of Five Thousand Dollars
($5,000).
8.4 WAIVER OF CLAIMS AND SUBROGATION. Landlord waives any and all rights
of recovery against Tenant, Tenant's employees, agents and contractors for
liability or damage from or arising out of damage to, or destruction of, the
Office Park to the extent that such liability or damage is covered by Landlord's
insurance policies then in force or would be covered by the insurance policies
required to be carried by Landlord hereunder (whether or not the insurance
Landlord is required to obtain hereunder is then in force and effect), whichever
is broader. Landlord's waiver shall not relieve Tenant from liability under
SECTION 21 below except to the extent Landlord's insurance company actually
satisfies Tenant's obligations under SECTION 21 in accordance with the
requirements of SECTION 21. Tenant waives any and all rights of recovery against
Landlord, Landlord's employees, agents and contractors for liability or damage
from or arising out of damage to, or destruction of, the Office Park to the
extent that such liability or damage is covered by Tenant's insurance policies
then in force or would be covered by the insurance policies required to be
carried by Tenant hereunder (whether or not the insurance Tenant is required to
obtain hereunder is then in force and effect), whichever is broader. Each party
shall cause the insurance policies it obtains in accordance with this Section 8
to provide that the insurance company waives all right of recovery by
subrogation against the other party in connection with any liability or damage
covered by any policy or policies covering the insured party.
8.5 COVERAGE. Landlord makes no representation to Tenant that the limits
or forms of coverage specified above or approved by Landlord are adequate to
insure Tenant's property or Tenant's obligations under this Lease, and the
limits of any insurance carried by Tenant shall not limit Tenant's obligations
or liability under any indemnity provision included in this Lease or under any
other provision of this Lease.
9. DAMAGE OR DESTRUCTION.
9.1 EFFECT OF DAMAGE OR DESTRUCTION. If all or part of the Building is
damaged by fire, earthquake, flood, explosion, the elements, riot, the release
or existence of Hazardous Substances (as defined below) or by any other cause
whatsoever (hereinafter collectively referred to as "damages"), but the damages
are not material (as defined in SECTION 9.2 below), Landlord shall repair the
damages to the Building within a commercially reasonable time, and this Lease
17
shall remain in full force and effect. If all or part of the Building is
destroyed or materially damaged (as defined in Section 9.2 below), Landlord
shall have the right, in its sole and complete discretion, to repair or to
rebuild the Building or to terminate this Lease. Landlord shall within ninety
(90) days after the occurrence of such material damage or destruction notify
Tenant in writing of Landlord's intention to repair or to rebuild or to
terminate this Lease. Tenant shall in no event be entitled to compensation or
damages on account of annoyance or inconvenience in making any repairs, or on
account of construction, or on account of Landlord's election to terminate this
Lease. Notwithstanding the foregoing, if Landlord shall elect to rebuild or
repair the Building, but in good faith determines that the Premises cannot be
rebuilt or repaired within two hundred seventy (270) days after the date of the
occurrence of the damage or destruction, without payment of overtime or other
premiums, and the damage to the Building will render the entire Premises
unusable during said two hundred seventy (270) day period, Landlord shall notify
Tenant thereof in writing at the time of Landlord's election to rebuild or
repair, and Tenant shall thereafter have a period of thirty (30) days within
which Tenant may elect to terminate this Lease, any such termination to be
effective upon thirty (30) days' advance written notice to Landlord. Tenant's
termination right described in the preceding sentence shall not apply if the
damage was caused by the negligent or intentional acts of Tenant or its
employees, agents, contractors or invitees. Failure of Tenant to exercise said
election within said 15-day period shall constitute Tenant's agreement to accept
delivery of the Premises under this Lease whenever tendered by Landlord,
provided Landlord thereafter pursues reconstruction or restoration diligently to
completion, subject always to delays beyond Landlord's reasonable control.
Subject to SECTION 9.3 below, if Landlord or Tenant terminates this Lease in
accordance with this SECTION 9.1, Tenant shall continue to pay all Base Rent,
Operating Expense increases and other amounts due hereunder which arise prior to
the date of termination.
9.2 DEFINITION OF MATERIAL DAMAGE. Damage to the Building shall be deemed
material if, in Landlord's reasonable judgment, the uninsured cost of repairing
the damage will exceed Twenty-Five Thousand Dollars ($25,000). If insurance
proceeds are available to Landlord in an amount which is sufficient to pay the
entire cost of repairing all of the damage to the Building (subject to any
applicable deductible), the damage shall be deemed material if the cost of
repairing the damage exceeds One Hundred Thousand Dollars ($100,000). Damage to
the Building shall also be deemed material if (a) the Building cannot be rebuilt
or repaired to substantially the same condition it was in prior to the damage
due to laws or regulations in effect at the time the repairs will be made, (b)
the holder of any mortgage or deed of trust encumbering the Property requires
that insurance proceeds available to repair the damage in excess of Twenty-Five
Thousand Dollars ($25,000) be applied to the repayment of the indebtedness
secured by the mortgage or the deed of trust, or (c) the damage occurs during
the last twelve (12) months of the Lease Term.
9.3 ABATEMENT OF RENT. If this Lease is not terminated by Landlord as
aforesaid, and all or part of the Premises have been damaged by fire or other
casualty, such that all or a part of the Premises will be unusable or
inaccessible to Tenant (or there will be substantial interference with such use
or accessibility) in the ordinary conduct of its business until the damage is
repaired, and the damage was not caused by the negligence or intentional acts of
Tenant or its employees, agents, contractors or invitees, Tenant's Base Rent and
Tenant's Share of Operating Expense increases shall be abated until the repairs
are substantially completed. Such abatement shall be in proportion to the
portion of the Premises which is unusable or inaccessible to Tenant
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in the ordinary conduct of its business. Notwithstanding the foregoing, there
shall be no abatement of Base Rent or Tenant's Share of Operating Expense
increases by reason of any portion of the Premises being unusable or
inaccessible for a period equal to five (5) consecutive business days or less.
Any such abatement shall end if and when Landlord shall have substantially
restored the Premises (excluding any alterations, additions or improvements made
by Tenant pursuant to Section 7.3 that are not a part of the Premises or the
property of Landlord and are not covered by Landlord's insurance) to
substantially the condition in which they were prior to such damage. If the
Premises shall be affected by any exercise of the power of eminent domain,
Tenant's Base Rent and Tenant's Share of Operating Expense increases shall be
justly and equitably abated and reduced according to the nature and extent of
the loss of use thereof suffered by Tenant. In no event shall Landlord have any
liability for damages to Tenant for inconvenience, annoyance, or interruption of
business arising from such fire, casualty or eminent domain. If the cause of the
damage or destruction is an earthquake or a flood, Tenant shall only be entitled
to an abatement of rent when and if Landlord receives reimbursement for such
rent from insurance proceeds, if any.
9.4 TENANT'S ACTS. Subject to the waivers of claims set forth in Section
8.4, if such damage or destruction occurs as a result of the negligence or the
intentional acts of Tenant or Tenant's employees, agents, contractors or
invitees, and the proceeds of insurance which are actually received by Landlord
or its mortgagee are not sufficient to pay for the repair of all of the damage,
Tenant shall pay, at Tenant's sole cost and expense, to Landlord upon demand,
the difference between the cost of repairing the damage and the insurance
proceeds received by Landlord.
9.5 TENANT'S PROPERTY. As more fully set forth in SECTION 22, Landlord
shall not be liable to Tenant or its employees, agents, contractors, invitees or
customers for loss or damage to merchandise, tenant improvements, fixtures,
automobiles, furniture, equipment, computers, files or other property
(hereinafter in this SECTION 9.5 collectively "Tenant's Property") located at
the Property, unless damaged due to the gross negligence or willful misconduct
of Landlord, its employees or agents. Tenant shall repair or replace all of
Tenant's property at Tenant's sole cost and expense. Tenant acknowledges that it
is Tenant's sole responsibility to obtain adequate insurance coverage to
compensate Tenant for damage to Tenant's property.
9.6 WAIVER. Landlord and Tenant hereby waive the provisions of any present
or future statutes which relate to the termination of leases when leased
property is damaged or destroyed and agree that such event shall be governed by
the terms of this Lease.
10. REAL AND PERSONAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Tenant shall pay to Landlord during the term of
this Lease, in addition to Base Rent and Tenant's Share of Operating Expense
increases, Tenant's Share of the amount by which all "Real Property Taxes" (as
defined in SECTION 10.2 below) for each Comparison Year exceeds the amount of
all Real Property Taxes for the Tax Base Year. Tenant's Share of Real Property
Tax increases shall be payable by Tenant at the same time, in the same manner
and under the same terms and conditions as Tenant pays Tenant's Share of
Operating Expense increases as provided in SECTION 4.2(F) of this Lease. Except
as expressly provided in SECTION 10.4 below, if the Real Property Taxes incurred
during any Comparison
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Year are less than the Real Property Taxes incurred during the Tax Base Year,
Tenant shall not be entitled to receive any credit, offset, reduction or benefit
as a result of said occurrence.
10.2 DEFINITION OF "REAL PROPERTY TAX". As used herein, the term "REAL
PROPERTY TAXES" shall mean (i) all taxes, assessments (special or otherwise),
levies, fees and all other government levies, exactions and charges of every
kind and nature, general and special, ordinary and extraordinary, foreseen and
unforeseen, which are, at any time prior to or during the Term, imposed or
levied upon or assessed against the Property or any portion thereof, or against
any Base Rent, additional rent or other rent of any kind or nature payable to
Landlord by anyone on account of the ownership, leasing or operation of the
Property, or which arise on account of or in respect of the ownership,
development, leasing, operation or use of the Property or any portion thereof;
(ii) all gross receipts taxes or similar taxes imposed or levied upon, assessed
against or measured by any Base Rent, additional rent or other rent of any kind
or nature or other sum payable to Landlord by anyone on account of the
ownership, development, leasing, operation, or use of the Property or any
portion thereof; (iii) all value added, use and similar taxes at any time
levied, assessed or payable on account of the ownership, development, leasing,
operation, or use of the Property or any portion thereof; and (iv) reasonable
expenses of any proceeding for abatement of any of the foregoing items included
in Real Property Taxes, provided Landlord prevails in such abatement proceeding;
but the amount of special taxes or special assessments included in Real Property
Taxes shall be limited to the amount of the installment (plus any interest,
other than penalty interest, payable thereon) of such special tax or special
assessment required to be paid during the year in respect of which such Real
Property Taxes are being determined. There shall be excluded from Real Property
Taxes all income, estate, succession, inheritance, transfer, gift, franchise, or
capital stock tax, and any income taxes arising out of or related to ownership
and operation of income-producing real estate, and any tax defined as an
Operating Expense by SECTION 4.2(C); provided, however, that if at any time
during the Term the present system of ad valorem taxation of real property shall
be changed so that a capital levy, franchise, income, profits, sales, rental,
use and occupancy, or other tax or charge shall in whole or in part be
substituted for, or added to, such ad valorem tax and levied against, or be
payable by, Landlord with respect to the Property or any portion thereof, such
tax or charge shall be included in the term "REAL PROPERTY TAXES" for the
purposes of this Lease.
10.3 PERSONAL PROPERTY TAXES. Tenant shall pay prior to delinquency all
taxes assessed against and levied upon trade fixtures, furnishings, equipment
and all other personal property of Tenant contained in the Premises or related
to Tenant's use of the Premises. If any of Tenant's personal property shall be
assessed with Landlord's real or personal property, Tenant shall pay to Landlord
the taxes attributable to Tenant within ten (10) days after receipt of a written
statement from Landlord setting forth the taxes applicable to Tenant's property.
10.4 REASSESSMENTS. From time to time Landlord may challenge the assessed
value of the Building and Land as determined by applicable taxing authorities
and/or Landlord may attempt to cause the Real Property Taxes to be reduced on
other grounds. If Landlord is successful in causing the Real Property Taxes to
be reduced or in obtaining a refund, rebate, credit or similar benefit
(hereinafter in this SECTION 10.4 collectively referred to as a "REDUCTION"),
Landlord shall, after deducting the costs incurred by Landlord in causing the
reduction to be made, credit the reduction(s) to Real Property Taxes for the
calendar year to which a reduction applies and to recalculate the Real Property
Taxes owed by Tenant for years
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after the year in which the reduction applies based on the reduced Real Property
Taxes (if a reduction applies to Tenant's Tax Base Year, the Tax Base Year Real
Property Taxes shall be reduced by the amount of the reduction and Tenant's
Share of Real Property Tax increases shall be recalculated for all Comparison
Years following the year of the reduction based on the lower Tax Base Year
amount). After deducting Landlord's expenses as hereinabove provided, Landlord
shall refund to Tenant Tenant's Share of the reduction of Real Property Taxes
(exclusive of interest) for the years to which any reductions apply.
11. UTILITIES.
11.1 SERVICES PROVIDED BY LANDLORD. Subject to all governmental rules,
regulations and guidelines applicable thereto, Landlord shall use commercially
reasonable efforts to provide HVAC to the Common Areas and the Premises during
the times described in SECTION 11.4, reasonable amounts of electricity for
normal lighting to the Common Area, replacement light bulbs and/or fluorescent
tubes and ballasts for standard overhead fixtures in the Common Area, water in
the Premises and in the Common Area for reasonable and normal drinking and
lavatory use, and building standard janitorial services.
11.2 INTENTIONALLY OMITTED.
11.3 SERVICES EXCLUSIVE TO TENANT. Tenant shall pay directly to the
provider thereof, on or before the date when due and in addition to payments of
Base Rent and other additional rent provided for herein, the costs of all
electricity used in the Premises (including, but not limited to, for HVAC),
water, gas, heat, heat pump fuel, telephone and any other utilities and services
supplied and/or metered exclusively to the Premises or to Tenant, together with
any taxes thereon. If Landlord measures electricity or any other utility usage
in the Premises by a submeter, Tenant shall pay the costs as shown on such
submeter to Landlord, as additional rent, at Landlord's actual cost for such
services, without mark-up, within thirty (30) days after receipt of an invoice
therefor. If any such services are not separately metered or submetered to the
Premises, Tenant shall pay, at Landlord's option, either Tenant's Share or a
reasonable proportion to be determined by Landlord of all charges jointly
metered with other premises in the Building at Landlord's actual cost for such
services, without mark-up.
11.4 HOURS OF SERVICE. Building services shall be provided Monday through
Friday from 8:00 a.m. to 6:00 p.m. and Saturdays from 9:00 a.m. to 1:00 p.m.
Janitorial services shall be provided Monday through Friday. Other Building
services, if any, shall not be provided at other times or on nationally
recognized holidays. Nationally recognized holidays shall include, but shall not
necessarily be limited to, New Years Day, Martin Luther King Jr. Day,
Presidents' Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day.
11.5 EXCESS USAGE BY TENANT. Notwithstanding the Permitted Use set forth
in SECTION 1.9, Tenant shall not use Building utilities or services in excess of
those used by the average office building tenant using its premises for ordinary
office use. Tenant shall not install at the Premises office machines, lighting
fixtures or other equipment which will generate above average heat, noise or
vibration at the Premises or which will adversely affect the Building's HVAC or
other systems. If the Premises include or if Tenant hereafter installs any
computer, telecommunications or other so-called "special purpose" room or area,
Tenant shall at its sole
21
cost and expense, provide such supplemental heating, ventilation and air
conditioning equipment and systems (the "SUPPLEMENTAL SYSTEMS") as may be
required to keep such room or area at the proper temperature and environmental
conditions. All Supplemental Systems shall be subject to Landlord's prior review
and consent and other conditions in ARTICLE 7, and if approved, shall be
maintained, repaired and replaced as necessary by Tenant, so as not to impose
any additional load on the Building systems. Tenant shall pay, as additional
rent, the cost of electricity, water and other materials necessary for the
proper operation of Supplemental Systems, as well as any costs or expenses
incurred by Landlord to provide additional capacity for Building systems to
accommodate or provide the same. Without limiting the foregoing, if Tenant does
use Building utilities or services in excess of those used by the average office
building tenant, Landlord shall have the right (but no obligation), in addition
to any other rights or remedies it may have under this Lease, to (a) at Tenant's
expense, install additional equipment and/or separate metering devices at the
Premises, and to charge Tenant therefor and for such usage, (b) require Tenant
to install Supplemental Systems as provided above, (c) require Tenant to pay to
Landlord all costs, expenses and damages incurred by Landlord as a result of
such usage, and/or (d) require Tenant to stop using excess utilities or
services.
11.6 INTERRUPTIONS. Tenant agrees that Landlord shall not be liable to
Tenant for its failure to furnish gas, electricity, telephone service, water,
HVAC or any other utility services or building services when such failure is
occasioned, in whole or in part, by repairs, replacements, or improvements, by
any strike, lockout or other labor trouble, by inability to secure electricity,
gas, water, telephone service or other utility at the Office Park, by any
accident, casualty or event arising from any cause whatsoever, including the
negligence of Landlord, its employees, agents and contractors, by act,
negligence or default of Tenant or any other person or entity, or by any other
cause and, to the extent permitted by law, such failures shall never be deemed
to constitute an eviction or disturbance of Tenant's use and possession of the
Premises or relieve Tenant from the obligation of paying rent or performing any
of its obligations under this Lease. Furthermore, Landlord shall not be liable
under any circumstances for loss of property or for injury to, or interference
with, Tenant's business, including, without limitation, loss of profits, however
occurring, through or in connection with or incidental to a failure to furnish
any such services or utilities. Landlord may comply with voluntary controls or
guidelines promulgated by any governmental entity relating to the use or
conservation of energy, water, gas, light or electricity or the reduction of
automobile or other emissions without creating any liability of Landlord to
Tenant under this Lease.
12. ASSIGNMENT AND SUBLETTING.
12.1 LANDLORD'S CONSENT REQUIRED. Tenant shall not voluntarily or by
operation of law assign, pledge, hypothecate, mortgage, sublet, or otherwise
transfer or encumber all or any part of Tenant's interest in this Lease or in
the Premises (any of the foregoing hereinafter may be referred to as a
"TRANSFER"), or permit any Transfer to occur, without Landlord's prior written
consent in each case. A "Transfer" requiring Landlord's consent hereunder shall
include, without limitation, the use or occupancy of the Premises or any part
thereof by any party other than Tenant, and the granting of concessions,
licenses and the like with respect to the Premises or any part thereof. Landlord
shall respond to Tenant's written request for consent hereunder within thirty
(30) days after Landlord's receipt of the written request from Tenant. Any
attempted Transfer without such consent shall be void and shall constitute an
Event of Default under this
22
Lease. Tenant's written request for Landlord's consent shall include, and
Landlord's thirty (30) day response period referred to above shall not commence,
unless and until Landlord has received from Tenant, all of the following
information: (a) either (i) financial statements for the proposed assignee or
subtenant for the past three (3) years prepared in accordance with generally
accepted accounting principles and reviewed and certified by an independent
certified public accountant, or (ii) federal tax returns for the proposed
assignee or subtenant for the past three (3) years, or (iii) a TRW credit report
or similar report on the proposed assignee or subtenant, (b) a reasonably
detailed description of the business the assignee or subtenant intends to
operate at the Premises, (c) the proposed effective date of the assignment or
sublease, (d) a copy of the executed sublease or assignment agreement which
includes all of the terms and conditions of the proposed assignment or sublease,
(e) a reasonably detailed description of any joint or common ownership or other
legal relationship between Tenant and the proposed assignee or subtenant and (f)
a reasonably detailed description of any Alterations the proposed assignee or
subtenant desires to make to the Premises. If the obligations of the proposed
assignee or subtenant will be guaranteed by any person or entity, Tenant's
written request shall not be considered complete until the information described
in (a) of the previous sentence has been provided with respect to each proposed
guarantor, and is reasonably satisfactory to Landlord. A "Transfer" shall also
include: (i) if Tenant is a corporation, and Tenant's stock is not publicly
traded over a recognized securities exchange, or Tenant is a partnership,
limited liability company, or other entity, the transfer (by one or more
transactions) of more than forty percent (40%) in the aggregate of the voting
stock of such corporation or forty percent (40%) in the aggregate of the voting
interests in such partnership, limited liability company or other entity during
the term of this Lease (but excluding bona fide transfers not entered into for
the purpose of evading this provision and constituting further equity investment
in Tenant and involving fifteen percent (15%) or less of such interests and not
resulting in a change of control); and (ii) the dissolution, merger or
liquidation of the corporation or other entity, and (iii) the involvement by
Tenant or its assets in any transaction, or series of transactions (by way of
merger, sale, acquisition, financing, refinancing, transfer, leveraged buy-out
or otherwise) whether or not a formal assignment or hypothecation of this Lease
or Tenant's assets occurs, which (in the case of clause (ii) or clause (iii))
results or will result in a reduction of the "Net Worth" of Tenant (as
hereinafter defined), by an amount equal to or greater than twenty-five percent
(25%) of such Net Worth of Tenant as it is represented to Landlord at the time
of the execution by Landlord of this Lease. If Tenant requests Landlord's
consent to a Transfer described in clause (iii) of the preceding sentence,
Landlord may, as a condition to Landlord's consent (and without imposing any
requirement or obligation on the part of Landlord to grant such consent, or
limiting any other condition that Landlord may impose), require that Tenant
immediately provide Landlord with an additional or increased security deposit
12.2 BUSINESS COMBINATIONS. The involvement by Tenant or its assets in
any transaction, or series of transactions (by way of merger, sale, acquisition,
financing, refinancing, transfer, leveraged buy-out or otherwise) whether or not
a formal assignment or hypothecation of this Lease or Tenant's assets occurs,
which results or will result in a reduction of the "Net Worth" of Tenant as
hereinafter defined, by an amount equal to or greater than twenty-five percent
(25%) of such Net Worth of Tenant as it is represented to Landlord at the time
of the execution by Landlord of this Lease, or as it exists immediately prior to
said transaction or transactions constituting such reduction, at whichever time
said Net Worth of Tenant was or is greater, shall be considered to be an
assignment of this Lease by Tenant subject to the
23
requirements of SECTION 12.1. Any transaction described in the preceding
sentence that does not result in a reduction of the "Net Worth" of Tenant by an
amount equal to or greater than twenty-five percent (25%) of such Net Worth of
Tenant as it is represented to Landlord at the time of the execution by Landlord
of this Lease, or as it exists immediately prior to said transaction or
transactions constituting such reduction, at whichever time said Net Worth of
Tenant was or is greater, shall not be considered to be a transaction for which
Landlord's consent is required under Section 12.1. "NET WORTH" of Tenant for
purposes of this SECTION 12.2 shall be the net worth of Tenant (excluding any
guarantors) established under generally accepted accounting principles
consistently applied.
12.3 STANDARD FOR APPROVAL. Landlord shall not unreasonably withhold its
consent to a Transfer, provided that Tenant has substantially complied with the
requirements, terms and conditions of this SECTION 12. Tenant acknowledges and
agrees that the terms and conditions of this SECTION 12 are not an exclusive
statement of the reasonable grounds on which Landlord may withhold its consent
to a Transfer. Without limiting the generality of the foregoing, it shall be
deemed reasonable for Landlord to withhold its consent to a Transfer if any
requirement, term or condition of this SECTION 12 is not complied with, or: (a)
the Transfer would cause Landlord to be in violation of its obligations under
another lease or agreement to which Landlord is a party; (b) a proposed assignee
or subtenant has a smaller Net Worth than Tenant had on the date this Lease was
entered into with Tenant or than Tenant has on the date of such Transfer,
whichever is greater, or is less able financially to pay the rents due under
this Lease as and when they are due and payable; (c) a proposed assignee's or
subtenant's business will impose a burden on the Property's parking facilities,
elevators, Common Areas or utilities that is greater than the burden imposed by
Tenant, in Landlord's reasonable judgment; (d) the terms of a proposed
assignment or subletting will allow the proposed assignee or subtenant to
exercise a right of renewal, right of expansion, right of first offer, right of
first refusal or similar right held by Tenant; (e) a proposed assignee or
subtenant refuses to enter into a written assignment agreement or sublease,
satisfactory to Landlord in its reasonable discretion, which provides that it
will abide by and assume all of the terms and conditions of this Lease for the
term of any assignment or sublease and containing such other terms and
conditions as Landlord reasonably deems necessary; (f) the use of the Premises
by the proposed assignee or subtenant will not be substantially similar to the
Permitted Use; (g) any guarantor of this Lease refuses to consent to the
Transfer or to execute a written agreement reaffirming the guaranty; (h) an
Event of Default exists under this Lease at the time of the request, or Tenant
has been in default more than two times during the Term of this Lease; (i) if
requested by Landlord, the assignee or subtenant refuses to sign a commercially
reasonable non-disturbance and attornment agreement in favor of Landlord's
lender; (j) Landlord has sued or been sued by the proposed assignee or
subtenant; (k) the proposed assignee or subtenant is involved in a business
which in Landlord's reasonable judgment is not in keeping with the then current
standards of the Building; (l) if Landlord or an affiliate of Landlord has space
available for lease in the Office Park and the proposed assignee or subtenant is
an existing tenant or subtenant of the Building (or any other building in the
Office Park owned by an affiliate of Landlord); or (m) the proposed assignee or
subtenant is a person or entity then actively negotiating with Landlord for the
lease of space in the Building (or any other building in the Office Park owned
by an affiliate of Landlord).
24
12.4 ADDITIONAL TERMS AND CONDITIONS. The following terms and conditions
shall be applicable to any Transfer:
(a) Regardless of Landlord's consent, no Transfer shall release
Tenant from Tenant's obligations hereunder or alter the primary liability of
Tenant to pay the rent and other sums due Landlord hereunder and to perform all
other obligations to be performed by Tenant hereunder, or release any guarantor
from its obligations under its guaranty.
(b) Landlord may accept rent from any person other than Tenant
pending approval or disapproval of an assignment or subletting.
(c) Neither a delay in the approval or disapproval of a Transfer,
nor the acceptance of rent, shall constitute a waiver or estoppel of Landlord's
right to exercise its rights and remedies for the breach of any of the terms or
conditions of this SECTION 12.
(d) The consent by Landlord to any Transfer shall not constitute a
consent to any subsequent Transfer by Tenant or to any subsequent or successive
Transfer by an assignee or subtenant. However, Landlord may consent to
subsequent Transfers or any amendments or modifications thereto without
notifying Tenant or anyone else liable on the Lease and without obtaining their
consent, and such action shall not relieve such persons from liability under
this Lease.
(e) In the event of any default under this Lease, Landlord may
proceed directly against Tenant, any guarantors or anyone else responsible for
the performance of this Lease, including any subtenant or assignee, without
first exhausting Landlord's remedies against any other person or entity
responsible therefor to Landlord, or any security held by Landlord.
(f) Landlord's written consent to any Transfer by Tenant shall not
constitute an acknowledgment that no default then exists under this Lease nor
shall such consent be deemed a waiver of any then existing default.
(g) The discovery of the fact that any financial statement relied
upon by Landlord in giving its consent to an assignment or subletting was
materially false shall, at Landlord's election, render Landlord's consent null
and void.
(h) Landlord shall not be liable under this Lease or under any
sublease to any subtenant.
(i) No assignment or sublease may be terminated, modified or amended
without Landlord's prior written consent.
(j) Any assignee of, or subtenant under, this Lease shall, by reason
of accepting such assignment or entering into such sublease, be deemed, for the
benefit of Landlord, to have assumed and agreed to conform and comply with each
and every term, covenant, condition and obligation (as each may be applicable to
any assignee or sublessee) herein to be observed or performed by Tenant during
the term of said assignment or sublease, except as Landlord may otherwise
specifically agree in writing.
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12.5 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The
following terms and conditions shall apply to any subletting by Tenant of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Tenant hereby absolutely and unconditionally assigns and
transfers to Landlord all of Tenant's interest in all rentals and income arising
from any sublease entered into by Tenant, and Landlord may collect such rent and
income and apply same toward Tenant's obligations under this Lease; provided,
however, that until a default shall occur in the performance of Tenant's
obligations under this Lease, Tenant may receive, collect and enjoy the rents
accruing under such sublease. Landlord shall not, by reason of this or any other
assignment of such rents to Landlord nor by reason of the collection of the
rents from a subtenant, be deemed to have assumed or recognized any sublease or
to be liable to the subtenant for any failure of Tenant to perform and comply
with any of Tenant's obligations to such subtenant under such sublease,
including, but not limited to, Tenant's obligation to return any security
deposit. Tenant hereby irrevocably authorizes and directs any such subtenant,
upon receipt of a written notice from Landlord stating that a default exists in
the performance of Tenant's obligations under this Lease, to pay to Landlord the
rents due as they become due under the sublease. Tenant agrees that such
subtenant shall have the right to rely upon any such statement and request from
Landlord, and that such subtenant shall pay such rents to Landlord without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice from or claim from Tenant to the contrary.
(b) Each sublease shall provide that if, prior to the termination of
any sublease, any event (other than a casualty described in SECTION 9.1 or
condemnation described in SECTION 15) occurs which, by voluntary or involuntary
act or by operation of law, might cause or permit this Lease to be terminated,
expire, be canceled, be foreclosed against, or otherwise come to an end,
including but not limited to (1) an Event of Default by Tenant under this Lease
of any of the terms or provisions hereof, (2) foreclosure proceedings brought by
the holder of any mortgage or trust deed to which the Property is subject; or
(3) the termination of Tenant's leasehold estate by dispossession proceeding or
otherwise, then, at Landlord's sole election and option, the subtenant shall
attorn to Landlord and recognize Landlord as the subtenant's landlord under the
sublease, upon the terms and conditions and at the rental rate specified in the
sublease, and for the then remaining term of the sublease, except that Landlord
shall not be bound by any provision of the sublease which in any way increases
Landlord's duties, obligations or liabilities to the subtenant beyond those owed
to Tenant under this Lease. The subtenant shall execute and deliver, at any time
and from time to time, upon request of Landlord, any instruments which may be
necessary or appropriate to evidence such attornment. Landlord shall not (i) be
liable to the subtenant for any act, omission or breach of the sublease by
Tenant, (ii) be subject to any offsets or defenses which the subtenant might
have against Tenant, (iii) be bound by any rent or additional rent which the
subtenant might have paid in advance to Tenant, or (iv) be bound to honor any
rights of the subtenant in any security deposit made with Tenant except to the
extent Tenant has turned over such security deposit to Landlord. Tenant hereby
agrees that upon the occurrence of any event with respect to this Lease
described above, Tenant shall immediately pay or transfer to Landlord any
security deposit, rent or other sums then held by Tenant. In the event of any
such attornment, Landlord's liability shall be limited to matters arising during
Landlord's ownership of the Building. The liability of Landlord to the subtenant
for any default
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by Landlord after such attornment, or arising in connection with Landlord's
operation, management, leasing, repair, renovation, alteration, or any other
matter relating to the Building or the subleased premises, shall be limited to
the interest of the Landlord in the Building (and proceeds thereof). Landlord
shall have the right, in Landlord's sole discretion, to elect not to have the
subtenant attorn to Landlord and, in that event, the sublease shall be deemed
terminated on the date of the occurrence of the event with respect to this Lease
described above, and Landlord shall have no obligation to permit the subtenant
to continue to occupy all or any part of the Premises.
12.6 TRANSFER PREMIUM FROM ASSIGNMENT OR SUBLETTING. Landlord shall be
entitled to receive from Tenant (as and when received by Tenant) as an item of
additional rent fifty percent (50%) of the gross amounts received by Tenant from
such assignee or subtenant in excess of the amounts payable by Tenant to
Landlord hereunder (the "Transfer Premium"). The Transfer Premium shall be
reduced by the actual out-of-pocket third party expenses reasonably incurred in
connection with such assignment or sublease (in the case of a sublease, such
expenses to be pro-rated evenly over the term of such sublease), including
without limitation reasonable brokerage commissions actually paid to a licensed
broker and legal fees actually paid by Tenant in order to assign the Lease or to
sublet all or a portion of the Premises. If less than all of the Premises is
transferred, the Base Rent and the additional rent shall be determined on a per
rentable square foot basis. "Transfer Premium" shall also include, but not be
limited to, key money and bonus money paid by the assignee or subtenant to
Tenant in connection with such Transfer, the fair value of any work or services
provided by the assignee or subtenant for Tenant, and any payment in excess of
fair market value for services rendered by Tenant to the assignee or subtenant
or for assets, fixtures, inventory, equipment, or furniture transferred by
Tenant to the assignee or subtenant in connection with such Transfer.
12.7 LANDLORD'S OPTION TO RECAPTURE SPACE. Notwithstanding anything to the
contrary contained in this SECTION 12, Landlord shall have the option, by giving
written notice to Tenant within thirty (30) days after receipt of any request by
Tenant to assign this Lease or to sublease all or any portion of the space in
the Premises, to terminate this Lease with respect to said space as of the date
thirty (30) days after Landlord's election. Landlord's right to terminate this
Lease pursuant to the preceding sentence in the case of a sublease shall be
limited to subleases: (i) affecting any portion of the Premises and having a
term of all or substantially all of the then-remaining Term of this Lease; or
(ii) affecting at least seventy percent (70%) of the Rentable Area of the
Premises. Notwithstanding the foregoing, Landlord shall not have the right to
terminate this Lease in connection with any transaction described in Section
12.2 hereof (provided that the foregoing shall not derogate from Tenant's
obligation to obtain Landlord's consent if and as required thereunder). In the
event of a recapture by Landlord, if this Lease shall be canceled with respect
to less than the entire Premises, the Base Rent, Tenant's Share of Operating
Expense and Real Property Tax increases and the number of parking spaces Tenant
may use shall be adjusted on the basis of the number of rentable square feet
retained by Tenant in proportion to the number of rentable square feet contained
in the original Premises, and this Lease as so amended shall continue thereafter
in full force and effect, and upon request of either party, the parties shall
execute written confirmation of same. If Landlord recaptures only a portion of
the Premises, it shall construct and erect at its sole cost such partitions as
may be required to sever the space to be retained by Tenant from the space
recaptured by Landlord. Landlord may, at its option, lease any recaptured
portion of the Premises to the proposed
27
subtenant or assignee or to any other person or entity without liability to
Tenant. Tenant shall not be entitled to any portion of the profit, if any,
Landlord may realize on account of such termination and reletting. Tenant
acknowledges that the purpose of this SECTION 12.7 is to enable Landlord to
receive profit in the form of higher rent or other consideration to be received
from an assignee or subtenant, to give Landlord the ability to meet additional
space requirements of other tenants of the Office Park and to permit Landlord to
control the leasing of space in the Office Park. Tenant acknowledges and agrees
that the requirements of this SECTION 12.7 are commercially reasonable and are
consistent with the intentions of Landlord and Tenant.
12.8 LANDLORD'S EXPENSES. In the event Tenant shall assign this Lease or
sublet the Premises or request the consent of Landlord to any Transfer, then
Tenant shall pay Landlord's reasonable costs and expenses incurred in connection
therewith, including, but not limited to, attorneys', architects', accountants',
engineers' or other consultants' fees.
13. DEFAULT; REMEDIES.
13.1 DEFAULT BY TENANT. Landlord and Tenant hereby agree that the
occurrence of any one or more of the following events shall be an "Event of
Default" by Tenant under this Lease and that said Event of Default shall give
Landlord the rights described in SECTION 13.2. Landlord or Landlord's authorized
agent shall have the right to execute and to deliver any notice of default,
notice to pay rent or quit or any other notice Landlord gives Tenant.
(a) Tenant's failure to make any payment of Base Rent, Tenant's
Share of Operating Expense increases, Tenant's Share of Real Property Taxes,
late charges, or any other payment required to be made by Tenant hereunder, as
and when due, where such failure shall continue for a period of five (5) days
after written notice thereof from Landlord to Tenant. In the event that Landlord
serves Tenant with a notice to pay rent or quit pursuant to applicable summary
process or unlawful detainer statutes, such notice shall also constitute the
notice required by this SECTION 13.1(A).
(b) The abandonment of the Premises by Tenant, continuing for ninety
(90) days or more after written notice thereof from Landlord to Tenant.
(c) The failure of Tenant to comply with any of its obligations
under SECTIONS 6.1, 6.2, 7.2, 7.3, 8, 11.3, 12, 18, 19, 21, 23, 24, 26, 34, 35
and 56 and failure to cure the same within ten (10) days following written
notice from Landlord to Tenant, or the failure by Tenant to execute any
subordination documents in accordance with Section 26.2. In the event Landlord
serves Tenant with a notice to quit or any other notice pursuant to applicable
summary process or unlawful detainer statutes, said notice shall also constitute
the notice required by this SECTION 13.1(C).
(d) The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Tenant (other than those referenced in SECTIONS 13.1(A), (B) and (C), above),
where such failure shall continue for a period of thirty (30) days after written
notice thereof from Landlord to Tenant; provided, however, that if the nature of
Tenant's non-performance is such that more than thirty (30) days are reasonably
required for its cure, then an Event of Default shall not be deemed to exist if
Tenant commences
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such cure within said thirty (30) day period and thereafter uses commercially
reasonable and continuous efforts pursue such cure to completion. In the event
that Landlord serves Tenant with a notice to quit or any other notice pursuant
to applicable summary process or unlawful detainer statutes, said notice shall
also constitute the notice required by this SECTION 13.1(D).
(e) (i) The making by Tenant or any guarantor of Tenant's
obligations hereunder of any general arrangement or general assignment for the
benefit of creditors; (ii) Tenant or any guarantor becoming a "debtor" as
defined in 11 U.S.C. Section 101 (the "BANKRUPTCY CODE") or any successor
statute thereto (unless, in the case of a petition filed against Tenant or
guarantor, the same is dismissed within sixty (60) days); (iii) the appointment
of a trustee or receiver to take possession of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where
possession is not restored to Tenant within thirty (30) days; (iv) the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged within thirty (30) days; (v) Tenant shall be
adjudicated insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief for itself under any present or future Federal, State or other
statute, law or regulation for the relief of debtors (other than the Bankruptcy
Code), or shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of all or any substantial part of
its properties, or shall admit in writing its inability to pay its debts
generally as they become due; (vi) a petition shall be filed against Tenant
under any law other than the Bankruptcy Code seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future Federal, State or other statute, law or
regulation and shall remain undismissed or unstayed for an aggregate of sixty
(60) days (whether or not consecutive), or if any trustee, conservator, receiver
or liquidator of Tenant or of all or any substantial part of its properties
shall be appointed without the consent or acquiescence of Tenant and such
appointment shall remain unvacated or unstayed for an aggregate of sixty (60)
days (whether or not consecutive); or (vii) the occurrence of any of the events
described in this PARAGRAPH (E) with respect to any guarantor of all or any
portion of Tenant's obligations under this Lease. In the event that any
provision of this SECTION 13.1(E) is unenforceable under applicable law, such
provision shall be of no force or effect.
(f) The discovery by Landlord that any financial statement,
representation or warranty given to Landlord by Tenant, or by any guarantor of
Tenant's obligations hereunder, is or was materially false. Tenant acknowledges
that Landlord has entered into this Lease in material reliance on such
information.
(g) If Tenant is a corporation, limited liability company,
partnership, or other business entity, the dissolution or liquidation of Tenant.
(h) If Tenant's obligations under this Lease are guaranteed: (i) the
death of a guarantor, (ii) the termination of a guarantor's liability with
respect to this Lease other than in accordance with the terms of such guaranty,
(iii) a guarantor's becoming insolvent or the subject of a bankruptcy filing,
(iv) a guarantor's refusal to honor the guaranty, or (v) a guarantor's breach of
its guaranty obligation on an anticipatory breach basis.
13.2 REMEDIES.
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(a) In the event of any default or breach of this Lease by Tenant,
continuing after any applicable notice and grace period provided for by SECTION
13.1, Landlord may, at any time thereafter, with or without notice or demand,
and without limiting Landlord in the exercise of any other right or remedy which
Landlord may have by reason of such default:
(i) terminate Tenant's right to possession of the Premises
by any lawful means, in which case this Lease and the
term hereof shall terminate and Tenant shall immediately
surrender possession of the Premises to Landlord. If
Landlord terminates this Lease, Landlord may recover
from Tenant: (A) the worth at the time of award of the
unpaid rent and all additional charges, including,
without limitation, Tenant's share of Operating Expenses
increases and Tenant's Share of Real Property Tax
Increases, that had been earned at the time of
termination; (B) the worth at the time of award of the
amount by which the unpaid rent and all additional
charges, including, without limitation, Tenant's share
of Operating Expenses increases and Tenant's Share of
Real Property Tax Increases, that would have been
payable hereunder from the date of termination through
the date of the award exceeds the amount of such rental
loss that Tenant proves could have been reasonably
avoided; (C) the worth at the time of award of the
amount by which the unpaid rent and all additional
charges, including, without limitation, Tenant's share
of Operating Expenses increases and Tenant's Share of
Real Property Tax Increases, that would have been
payable hereunder for the remainder of the Term of this
Lease after the time of award exceeds the amount of such
rental loss that Tenant proves could be reasonably
avoided; and (D) any other amount necessary to
compensate Landlord for all detriment proximately caused
by Tenant's failure to perform its obligations under the
Lease or which in the ordinary course of things would be
likely to result therefrom, including, but not limited
to, the cost of recovering possession of the Premises,
expenses of releasing, including necessary renovation
and alteration of the Premises, reasonable attorneys'
fees, any real estate commissions actually paid by
Landlord and the unamortized value of any free rent,
reduced rent, tenant improvement allowance or other
economic concessions provided by Landlord. The "worth at
time of award" of the amounts referred to in SECTION
13.2(A)(I)(A) and (B) shall be computed by allowing
interest at the lesser of ten percent (10%) per annum or
the maximum interest rate permitted by applicable law.
The worth at the time of award of the amount referred to
in SECTION 13.2(A)(I)(C) shall be computed by
discounting such amount at the discount rate of the
Federal Reserve Bank of Boston at the time of award plus
one percent (1%). For purposes of this SECTION
13.2(A)(I), "rent" shall be deemed to be all monetary
obligations required to be paid by Tenant pursuant to
the terms of this Lease.
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(ii) collect sublease rents (or appoint a receiver to collect
such rent) and otherwise perform Tenant's obligations at
the Premises, it being agreed, however, that the
appointment of a receiver for Tenant shall not
constitute an election by Landlord to terminate this
Lease; and/or
(iii) pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the
Commonwealth of Massachusetts.
(b) No remedy or election hereunder shall be deemed exclusive, but
shall, wherever possible, be cumulative with all other remedies at law or in
equity. The expiration or termination of this Lease and/or the termination of
Tenant's right to possession of the Premises shall not relieve Tenant of
liability under any indemnity provisions of this Lease as to matters occurring
or accruing during the Term of this Lease or by reason of Tenant's occupancy of
the Premises.
(c) No surrender of the Premises shall be effective against Landlord
unless Landlord has entered into a written agreement with Tenant in which
Landlord expressly agrees to (i) accept a surrender of the Premises and (ii)
relieve Tenant of liability under this Lease. The delivery by Tenant to Landlord
of possession of the Premises shall not constitute the termination of this Lease
or the surrender of the Premises.
13.3 DEFAULT BY LANDLORD. Landlord shall not be in default under this
Lease unless Landlord fails to perform obligations required of Landlord within
thirty (30) days after written notice by Tenant to Landlord and to the Holder of
any Mortgage encumbering the Property whose name and address shall have
theretofore been furnished to Tenant in writing, specifying wherein Landlord has
failed to perform such obligation; provided, however, that if the nature of
Landlord's obligation is such that more than thirty (30) days are required for
its cure, then Landlord shall not be in default if Landlord commences
performance within such thirty (30) day period and thereafter diligently pursues
the same to completion. This Lease and the obligations of Tenant hereunder shall
not be affected or impaired because Landlord is unable to fulfill any of its
obligations hereunder or is delayed in doing so, if such inability or delay is
caused by reason of strike or other labor problems, acts of God, riot,
insurrection, governmental actions or requirements, or any other cause beyond
the reasonable control of Landlord, and the time for Landlord's performance
shall be extended for the period of any such delay.
13.4 LATE CHARGES. Tenant hereby acknowledges that late payment by Tenant
to Landlord of Base Rent, Tenant's Share of Operating Expense increases,
Tenant's Share of Real Property Tax increases or other sums due hereunder will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult to ascertain. Such costs include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by the terms of any mortgage or trust deed encumbering the
Property. Accordingly, if any installment of Base Rent, Tenant's Share of
Operating Expense increases, Tenant's Share of Real Property Tax increases or
any other sum due from Tenant shall not be received by Landlord when such amount
shall be due, then, without any requirement for notice or demand to Tenant,
Tenant shall immediately pay to Landlord a late charge equal to six percent (6%)
of such overdue amount. Notwithstanding the foregoing, Landlord agrees that the
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foregoing late charge will not be imposed with respect to the first late payment
in any twelve-month period if the amount owed is paid in full within ten (10)
days after written notice from Landlord thereof. The late charge shall apply to
the second and any subsequent late payments, without notice, as aforesaid. The
parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a waiver
of Tenant's default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted hereunder including
the assessment of interest under SECTION 13.5.
13.5 INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein
provided, any amount due to Landlord that is not paid when due shall bear
interest at the lesser of eighteen (18%) percent per annum or the maximum rate
permitted by applicable law. Payment of such interest shall not excuse or cure
any default by Tenant under this Lease.
13.6 PAYMENT OF RENT AND SECURITY DEPOSIT AFTER DEFAULT. If Tenant fails
to pay Base Rent, Tenant's Share of Operating Expense increases, Tenant's Share
of Real Property Tax increases or any other monetary obligation due hereunder on
the date it is due, after Tenant's third failure to pay any monetary obligation
on the date it is due, at Landlord's option, all monetary obligations of Tenant
hereunder shall thereafter be paid by cashier's check. If Landlord has required
Tenant to make said payments by cashier's check, Tenant's failure to make a
payment by cashier's check shall be a material default hereunder.
14. LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT. All covenants and
agreements to be kept or performed by Tenant under this Lease shall be performed
by Tenant at Tenant's sole cost and expense and without any reduction of rent.
If Tenant shall fail to perform any of its obligations under this Lease, within
a reasonable time after such performance is required by the terms of this Lease
(or immediately, in case of emergency), Landlord may, but shall not be obligated
to, after three (3) days prior written notice to Tenant, (but no notice will be
required in case of emergency), make any such payment or perform any such act on
Tenant's behalf without waiving its rights based upon any default of Tenant and
without releasing Tenant from any obligations hereunder. Tenant shall pay to
Landlord, within ten (10) days after delivery by Landlord to Tenant of
statements therefor, an amount equal to the expenditures reasonably made by
Landlord in connection with the remedying by Landlord of Tenant's defaults
pursuant to the provisions of this SECTION 14.
15. CONDEMNATION. If any portion of the Premises is taken under the power of
eminent domain, or sold under the threat of the exercise of said power (all of
which are herein called "Condemnation"), this Lease shall terminate as to the
part so taken as of the date the condemning authority takes title or possession,
whichever first occurs; provided that if so much of the Premises is taken by
Condemnation as would substantially and adversely affect the operation and
profitability of Tenant's business conducted from the Premises, and said taking
lasts for ninety (90) days or more, Tenant shall have the option, to be
exercised only in writing within thirty (30) days after Landlord shall have
given Tenant written notice of such taking (or in the absence of such notice,
within thirty (30) days after the condemning authority shall have taken
possession), to terminate this Lease as of the date the condemning authority
takes such possession. If a taking lasts for less than ninety (90) days and
limits Tenant's use of the Premises for the Permitted Use,
32
Tenant's rent shall be abated in proportion to such limitation during said
period but Tenant shall not have the right to terminate this Lease. If Tenant
does not terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises remaining,
except that the rent and Tenant's Share of Operating Expenses and Tenant's Share
of Real Property Taxes shall be reduced in the proportion that the usable floor
area of the Premises taken bears to the total usable floor area of the Premises.
Common Areas taken shall be excluded from the Common Areas usable by Tenant and
no reduction of rent shall occur with respect thereto or by reason thereof.
Landlord shall have the option in its sole discretion to terminate this Lease as
of the taking of possession by the condemning authority, by giving written
notice to Tenant of such election within thirty (30) days after receipt of
notice of a Condemnation of any part of the Premises or the Property. Any award
for the taking of all or any part of the Premises or the Property under the
power of eminent domain or any payment made under threat of the exercise of such
power shall be the property of Landlord, whether such award shall be made as
compensation for diminution in value of the leasehold, for good will, for the
taking of the fee, as severance damages, or as damages for tenant improvements;
provided, however, that Tenant shall be entitled to any separate award for loss
of or damage to Tenant's removable personal property. In the event that this
Lease is not terminated by reason of such condemnation, and subject to the
requirements of any lender that has made a loan to Landlord encumbering the
Property, Landlord shall to the extent of severance damages received by Landlord
in connection with such condemnation, repair any damage to the Property caused
by such Condemnation except to the extent that Tenant has been reimbursed
therefor by the condemning authority on account of damage to Tenant's property.
Tenant shall pay any amount in excess of such severance damages required to
complete such repair to Tenant's property. This Section 15 shall govern the
rights and obligations of Landlord and Tenant with respect to the condemnation
of all or any portion of the Property.
16. VEHICLE PARKING.
16.1 USE OF PARKING FACILITIES. During the term and subject to the rules
and regulations attached hereto as Exhibit "C," as modified by Landlord from
time to time (the "Rules"), Tenant shall be entitled to use the number of
parking spaces set forth in SECTION 1.19 in the parking facility of the Office
Park. All such spaces are unreserved and undesignated, and are to be used in
common with others from time to time entitled thereto. For purposes of this
Lease, a "parking space" refers to the space in which one (1) motor vehicle is
intended to park. If Tenant commits or allows in the parking facility any of the
activities prohibited by the Lease or the Rules, then Landlord shall have the
right, without notice, in addition to such other rights and remedies that it may
have, to remove or tow away the vehicle involved and charge the cost to Tenant,
which cost shall be immediately payable by Tenant upon demand by Landlord.
Tenant's parking rights are the personal rights of Tenant and Tenant shall not
transfer, assign, or otherwise convey its parking rights separate and apart from
this Lease.
16.2 PARKING CHARGES. INTENTIONALLY OMITTED.
17. BROKER'S FEE. Tenant and Landlord each represent and warrant to the other
that neither has had any dealings or entered into any agreements with any
person, entity, broker or finder other than the persons, if any, listed in
SECTION 1.20, in connection with the negotiation of this Lease, and no other
broker, person, or entity is entitled to any commission or finder's fee in
33
connection with the negotiation of this Lease, and Tenant and Landlord each
agree to indemnify, defend and hold the other harmless from and against any
claims, damages, costs, expenses, attorneys' fees or liability for compensation
or charges which may be claimed by any such unnamed broker, finder or other
similar party by reason of any dealings, actions or agreements of the
indemnifying party. Landlord shall pay commissions to the Real Estate Brokers
named in Section 1.20 hereof in accordance with a separate agreement.
18. ESTOPPEL CERTIFICATE.
18.1 DELIVERY OF CERTIFICATE. Each party shall from time to time, upon not
less than fifteen (15) days' prior written notice from the other, execute and
deliver to the other a statement in writing certifying the following: (a) that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification and certifying that this Lease, as so modified,
is in full force and effect) (b) the date to which the Base Rent and other
charges are paid in advance and the amounts so payable, (c) that there are not,
to the knowledge of the certifying party, any uncured defaults or unfulfilled
obligations on the part of the requesting party, or specifying such defaults or
unfulfilled obligations, if any are claimed, (d) that all tenant improvements to
be constructed by Landlord, if any, have been completed in accordance with
Landlord's obligations and (e) that Tenant has taken possession of the Premises.
Landlord shall not be required to provide any such certification more than once
per calendar year. In the case of any such request by Landlord, Tenant shall
also certify to any other matter dealing with this Lease as may be requested by
any actual or prospective investor, lender or purchaser. Any such statement may
be conclusively relied upon by any prospective investor, purchaser or
encumbrancer of the Property.
18.2 FAILURE TO DELIVER CERTIFICATE. At Landlord's option, the failure of
Tenant to deliver such statement within such time shall be conclusive upon
Tenant that (a) this Lease is in full force and effect, without modification
except as may be represented by Landlord, (b) there are no uncured defaults in
Landlord's performance, (c) not more than one month's Base Rent has been paid in
advance, (d) all tenant improvements to be constructed by Landlord, if any, have
been completed in accordance with Landlord's obligations and (e) Tenant has
taken possession of the Premises.
19. FINANCIAL INFORMATION. From time to time, at Landlord's request, Tenant
shall cause the following financial information to be delivered to Landlord, at
Tenant's sole cost and expense, upon not less than ten (10) days' advance
written notice from Landlord: (a) a current financial statement for Tenant and
Tenant's financial statements for the previous two accounting years, (b) a
current financial statement for any guarantor(s) of this Lease and the
guarantor'(s) financial statements for the previous two accounting years and (c)
such other financial information pertaining to Tenant or any guarantor as
Landlord or any lender or purchaser of Landlord may reasonably request. All
financial statements shall be prepared in accordance with generally accepted
accounting principles consistently applied and, if such is the normal practice
of Tenant, shall be audited by an independent certified public accountant.
20. LANDLORD'S LIABILITY. Tenant acknowledges that Landlord shall have the right
to transfer all or any portion of its interest in the Property and to assign
this Lease to the transferee. Tenant agrees that in the event of such a transfer
Landlord shall automatically be released from
34
all liability under this Lease; and Tenant hereby agrees to look solely to
Landlord's transferee for the performance of Landlord's obligations hereunder
after the date of the transfer. Upon such a transfer, Landlord shall, at its
option, return Tenant's security deposit to Tenant or transfer Tenant's security
deposit to Landlord's transferee and, in either event, Landlord shall have no
further liability to Tenant for the return of its security deposit. Subject to
the rights of any lender holding a mortgage or deed of trust encumbering all or
part of the Property, Tenant agrees to look solely to Landlord's equity interest
in the Property for the collection of any judgment requiring the payment of
money by Landlord arising out of (a) Landlord's failure to perform its
obligations under this Lease or (b) the negligence or willful misconduct of
Landlord, its partners, employees and agents. No other property or assets of
Landlord shall be subject to levy, execution or other enforcement procedure for
the satisfaction of any judgment or writ obtained by Tenant against Landlord. No
partner, trustee, beneficiary, officer, director, member, shareholder, employee
or agent of Landlord shall be personally liable for the performance of
Landlord's obligations hereunder or be named as a party in any lawsuit arising
out of or related to, directly or indirectly, this Lease and the obligations of
Landlord hereunder. The obligations under this Lease do not constitute personal
obligations of the individual partners, trustees or shareholders, beneficiaries
or members of Landlord, if any, and Tenant shall not seek recourse against any
of said persons or their assets.
21. INDEMNITY. (a) To the maximum extent this agreement may be made effective
according to law, Tenant hereby agrees to indemnify, defend and hold harmless
Landlord and its employees, officers, directors, trustees, beneficiaries,
members, partners, shareholders, agents, contractors, lenders and ground lessors
(said persons and entities are hereinafter collectively referred to as the
"INDEMNIFIED PARTIES") from and against any and all liability, loss, cost,
damage, claims, loss of rents, liens, judgments, penalties, fines, settlement
costs, investigation costs, the cost of consultants and experts, attorneys fees,
court costs and other legal expenses, the effects of environmental
contamination, the cost of environmental testing, the removal, remediation
and/or abatement of Hazardous Substances or Medical Waste (as said terms are
defined below), insurance policy deductibles and other expenses (hereinafter
collectively referred to as "DAMAGES") arising out of or related to an
"Indemnified Matter" (as defined below).
(b) For purposes of this SECTION 21, an "Indemnified Matter" shall
mean any matter for which one or more of the Indemnified Parties incurs
liability or Damages if the liability or Damages arise out of or involve,
directly or indirectly (i) from any accident, injury or damage whatsoever to any
person, or to the property of any person, occurring in or about the Premises;
(ii) from any accident, injury or damage occurring outside of the Premises but
on the Property or in the Office Park where such accident, damage or injury
results or is claimed to have resulted from an act or omission on the part of
Tenant or its employees, agents, contractors or invitees (all of said persons or
entities are hereinafter collectively referred to as "TENANT PARTIES"); (iii) in
connection with the conduct or management of the Premises or of any business
therein, or any thing or work whatsoever done, or any condition created (other
than by Landlord) in or about the Premises; and, in any case, occurring after
the Commencement Date until the end of the Term of this Lease and thereafter so
long as Tenant is in occupancy of any part of the Premises; (iv) from Tenant's
failure to perform any of its obligations under this Lease, (v) from the
existence, use or disposal of any Hazardous Substance (as defined in SECTION 23
below) brought on to the Property or the Office Park by a Tenant Party, (vi)
from the existence, use or disposal
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of any Medical Waste (as defined in SECTION 24 below) brought on to the Property
or the Office Park by a Tenant Party or (vii) from any other matters for which
Tenant has agreed to indemnify Landlord pursuant to any other provision of this
Lease. Tenant's obligations hereunder shall include, but shall not be limited to
compensating the Indemnified Parties for Damages arising out of Indemnified
Matters within ten (10) days after written demand from an Indemnified Party, and
providing a defense, with counsel reasonably satisfactory to the Indemnified
Party, at Tenant's sole expense, within ten (10) days after written demand from
the Indemnified Party, of any claims, action or proceeding arising out of or
relating to an Indemnified Matter whether or not litigated or reduced to
judgment and whether or not well founded.
(c) If Tenant is obligated to compensate an Indemnified Party for
Damages arising out of an Indemnified Matter, Landlord shall have the immediate
and unconditional right, but not the obligation, without notice or demand to
Tenant, to pay the damages and Tenant shall, upon ten (10) days advance written
notice from Landlord, reimburse Landlord for the costs incurred by Landlord. By
way of example, and not limitation, Landlord shall have the immediate and
unconditional right to cause any damages to the Common Areas, another tenant's
premises or to any other part of the Property or the Office Park to be repaired
and to compensate other tenants of the Property or other persons or entities for
Damages arising out of an Indemnified Matter. The Indemnified Parties need not
first pay any Damages to be indemnified hereunder. Tenant's obligations under
this Section 21 shall not be released, reduced or otherwise limited because one
or more of the Indemnified Parties are or may be actively or passively negligent
with respect to an Indemnified Matter or because an Indemnified Party is or was
partially responsible for the Damages incurred. This indemnity is intended to
apply to the fullest extent permitted by applicable law. Tenant's obligations
under this Section 21 shall survive the expiration or termination of this Lease
unless specifically waived in writing by Landlord after said expiration or
termination. In no event shall Tenant be required to indemnify and Indemnified
Party to the extent Damages are caused by the gross negligence or willful
misconduct of such party.
(d) Landlord agrees to indemnify and save harmless Tenant from and
against all claims, loss, cost, damage or expense arising from any accident,
bodily or personal injury or damage occurring in the common areas on the
Property, to the extent that such accident, damage or injury results from a
negligent act or omission on the part of Landlord or Landlord's agents or
employees, occurring after the Commencement Date until the end of the Term of
this Lease. This indemnity and hold harmless agreement shall include indemnity
against all losses, costs, damages, expenses and liabilities incurred during the
Term of this Lease in connection with any such claim or proceeding brought
thereon, and the defense thereof, including, without limitation, reasonable
attorneys' fees and costs at both the trial and appellate levels.
22. EXEMPTION OF LANDLORD FROM LIABILITY. Tenant hereby agrees that Landlord
shall not be liable for injury to Tenant's business or any loss of income
therefrom or for loss of or damage to the merchandise, tenant improvements,
fixtures, furniture, equipment, computers, files, automobiles, or other property
of Tenant, Tenant's employees, agents, contractors or invitees, or any other
person in or about the Property or the Office Park, nor shall Landlord be liable
for injury to the person of Tenant, Tenant's employees, agents, contractors or
invitees, whether such damage or injury is caused by or results from any cause
whatsoever including, but not limited to, theft, criminal activity at the
Property or the Office Park, negligent security measures, bombings
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or bomb scares, Hazardous Substances or Medical Waste (as defined below), fire,
steam, electricity, gas, water or rain, flooding, breakage of pipes, sprinklers,
plumbing, air conditioning or lighting fixtures, or from any other cause,
whether said damage or injury results from conditions arising upon the Premises
or upon other portions of the Property or the Office Park, or from other sources
or places, or from new construction or the repair, alteration or improvement of
any part of the Property or the Office Park, and regardless of whether the cause
of the damage or injury arises out of Landlord's or its employees, agents or
contractors negligent acts. Landlord shall not be liable for any damages arising
from any act or neglect of any employees, agents, contractors or invitees of any
other tenant, occupant or user of the Property or the Office Park, nor from the
failure of Landlord to enforce the provisions of the lease of any other tenant
of the Property. Tenant, as a material part of the consideration to Landlord
hereunder, hereby assumes all risk of damage to Tenant's property or business or
injury to persons, in, upon or about the Property or the Office Park arising
from any cause, except Landlord's intentional and wrongful acts or gross
negligence or the wrongful and intentional acts or gross negligence of its
employees or agents, and Tenant hereby waives all claims in respect thereof
against Landlord, its employees, agents and contractors.
23. HAZARDOUS SUBSTANCES.
23.1 DEFINITION AND CONSENT. The term "Hazardous Substance" as used in
this Lease shall mean any product, substance, chemical, material or waste whose
presence, nature, quantity and/or intensity of existence, use, manufacture,
disposal, transportation, spill, release or affect, either by itself or in
combination with other materials expected to be on the Premises, is either: (a)
potentially injurious to the public health, safety or welfare, the environment
or the Premises, (b) regulated or monitored by any governmental entity, (c) a
basis for liability of Landlord to any governmental entity or third party under
any federal, state or local statute or common law theory or (d) defined as a
hazardous material or substance by any federal, state or local law or
regulation. Except for small quantities of ordinary office supplies such as
copier toner, liquid paper, glue, ink and common household cleaning materials,
Tenant shall not cause or permit any Hazardous Substance to be brought, kept, or
used in or about the Premises or the Office Park by Tenant, its agents,
employees, contractors or invitees.
23.2 DUTY TO INFORM LANDLORD. If Tenant knows, or has reasonable cause to
believe, that a Hazardous Substance, or a condition involving or resulting from
same, has come to be located in, on or under or about the Premises or the
Property, Tenant shall immediately give written notice of such fact to Landlord.
Tenant shall also immediately give Landlord (without demand by Landlord) a copy
of any statement, report, notice, registration, application, permit, license,
given to or received from, any governmental authority or private party, or
persons entering or occupying the Premises, concerning the presence, spill,
release, discharge of or exposure to, any Hazardous Substance or contamination
in, on or about the Premises or the Property.
23.3 INSPECTION; COMPLIANCE. Landlord and Landlord's employees, agent,
contractors and lenders shall have the right to enter the Premises at any time
in the case of an emergency, and otherwise at reasonable times and upon
reasonable advance notice (which need not be in writing, and which need not be
given at all in the case of an emergency), for the purpose of inspecting the
condition of the Premises and for verifying compliance by Tenant with
37
this SECTION 23. Landlord shall have the right to employ experts and/or
consultants in connection with its examination of the Premises and with respect
to the installation, operation, use, monitoring, remediation, maintenance, or
removal of any Hazardous Substance on or from the Premises. The costs and
expenses of any such inspections shall be paid by the party requesting same,
unless a release, discharge or contamination, caused or materially contributed
to by Tenant, is found to exist or be imminent, or unless the inspection is
requested or ordered by governmental authority as the result of any such
existing or imminent release, discharge or contamination. In any such case,
Tenant shall upon request reimburse Landlord for the cost and expenses of such
inspection.
23.4 EXISTING CONDITION. Landlord hereby represents and warrants to
Tenant that, as of the date hereof, Landlord has not received any written notice
to the effect that Hazardous Substances (except for reasonable quantities of
ordinary office supplies, cleaning materials, pesticides and diesel or other
fuels for the emergency generator and Landlord's maintenance tools and
machinery) are present in the Premises or the Building in violation of
applicable laws, rules or regulations.
24. MEDICAL WASTE.
24.1 DEFINITION. The term "Medical Waste" shall mean the types of waste so
described in any federal, state or local laws, rules and regulations and any
similar type of waste. Unless specifically permitted by SECTION 6 of this Lease
to use the Premises for medical office uses, Tenant shall not cause or permit
any Medical Waste to be brought, generated, kept or used in or about the
Premises or the Property by Tenant, its employees, agents, contractors or
invitees.
24.2 INSPECTION; COMPLIANCE. Landlord and Landlord's employees, agents,
contractors and lenders shall have the right to enter the Premises at any time
in the case of an emergency, and otherwise at reasonable times and upon
reasonable advance notice (which need not be in writing, and which need not be
given at all in the case of an emergency), for the purpose of verifying
compliance by Tenant with this SECTION 24. Landlord shall have the right to
employ experts and/or consultants in connection with its examination of the
Premises and with respect to any generation and disposal of Medical Waste on or
from the Premises. The cost and expenses of any such inspection shall be paid by
Landlord, unless it is determined that Tenant is not disposing of its Medical
Waste in a manner permitted by applicable law, in which case Tenant shall
immediately reimburse Landlord for the cost of such inspection.
24.3 NO LIMITATION. The provisions of this Section 24 shall not limit in
any way the provisions of Section 23.
25. TENANT IMPROVEMENTS. Tenant acknowledges and agrees that, except for
Landlord's Work, Landlord shall not be obligated to construct any tenant
improvements on behalf of Tenant unless a work letter agreement (the "Work
Letter") is attached to this Lease as an exhibit and the Work Letter is fully
completed and executed by Landlord. If a space plan is attached to the Work
Letter, the space plan shall not be binding on Landlord unless separately
initialed by Landlord. Except as set forth in a Work Letter, it is specifically
understood and agreed that Landlord has no obligation and has made no promises
to alter, remodel, improve, renovate, repair or decorate the Premises, the
Property, or any part thereof, or to provide any allowance for
38
such purposes, and that no representations respecting the condition of the
Premises, Property or the Office Park have been made by Landlord to Tenant.
26. SUBORDINATION AND RIGHTS OF MORTGAGEES.
26.1 EFFECT OF SUBORDINATION. This Lease, and any option granted hereby
(an "OPTION"), upon Landlord's written election, shall be subject and
subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation or security interest (any of the foregoing, a "MORTGAGE") now or
hereafter made of or with respect to or placed on all or any part of the
Property and to any and all advances made on the security thereof and to all
renewals, modifications, consolidations, replacements and extensions thereof. If
any Holder shall elect to have this Lease and any Option(s) granted hereby prior
to the lien of its Mortgage and shall give written notice thereof to Tenant,
this Lease and such Option(s) shall be deemed prior to such Mortgage, whether
this Lease or such Option(s) are dated prior or subsequent to the date of said
Mortgage or the date of recording thereof. In the event of the foreclosure of a
Mortgage, or a deed in lieu of foreclosure of a Mortgage, or exercise of any
similar remedy by a Holder, the new owner of the Property as a result of such
exercise shall not (a) be liable for any act or omission of any prior landlord
or with respect to events occurring prior to its acquisition of title, (b) be
liable for the breach of this Lease by any prior landlord, (c) be subject to any
offsets or defenses which Tenant may have against the prior landlord or (d) be
liable to Tenant for the return of its security deposit. At the request of any
such new owner, Tenant shall attorn to such new owner. Landlord represents to
Tenant that as of the date hereof, no mortgage encumbers the Property. With
respect to mortgages first encumbering the Property after the date hereof,
Landlord agrees to use commercially reasonable efforts to obtain a SNDA (as
defined below) from the holder thereof. For purposes hereof, the term "all
reasonable efforts" shall not include the payment of any sum of money or the
consent to less favorable terms and conditions with respect to the obligations
or indebtedness secured or created by such mortgage. In the event that, despite
such reasonable efforts, Landlord is unable to obtain such an agreement, then
this Lease shall be subordinate as aforesaid, if and as such holder may elect.
26.2 EXECUTION OF DOCUMENTS. Tenant agrees to execute and acknowledge any
documents Landlord reasonably requests that Tenant execute to effectuate an
attornment, a subordination, or to make this Lease or any Option granted herein
prior to the lien of any Mortgage, as the case may be, including, without
limitation, any standard form of subordination non-disturbance attornment
agreement ("SNDA") from time to time in use by any institutional Mortgagee (or
any commercially reasonable and customary form proposed by a non-institutional
mortgagee). Tenant acknowledges that an SNDA may give a Holder the right, in the
Holder's sole discretion, to continue this Lease in effect or to terminate this
Lease in the event of a foreclosure sale. Tenant's failure to execute such
documents within ten (10) days after written demand shall constitute a material
default by Tenant hereunder.
26.3 ASSIGNMENT TO MORTGAGEE. With reference to any assignment by Landlord
of Landlord's interest in this Lease, or the rents payable hereunder,
conditional in nature or otherwise, which assignment is made to the Holder of a
Mortgage on property which includes the Premises, Tenant agrees that the
execution thereof by Landlord, and the acceptance thereof by the Holder of such
Mortgage shall never be treated as an assumption by such Holder of any of the
obligations of Landlord hereunder unless such Holder shall, by notice sent to
Tenant,
39
specifically otherwise elect and, except as aforesaid, such Holder shall be
treated as having assumed Landlord's obligations hereunder only upon foreclosure
of such holder's Mortgage and the taking of possession of the Premises.
26.4 SALE LEASEBACK. In no event shall the acquisition of Landlord's
interest in the Property by a purchaser which, simultaneously therewith, leases
Landlord's entire interest in the Property back to the seller thereof be treated
as an assumption, by operation of law or otherwise, of Landlord's obligations
hereunder, but Tenant shall look solely to such seller-lessee, and its
successors from time to time in title, for performance of Landlord's obligations
hereunder. For all purposes, such seller-lessee, and its successors in title,
shall be the Landlord hereunder unless and until Landlord's position shall have
been assumed by such purchaser-lessor.
26.5 CURE BY MORTGAGEE. The curing of any default of Landlord's under this
Lease by any Holder shall be treated as performance by Landlord.
27. OPTIONS TO EXTEND.
27.1 TENANT'S RIGHT. Provided that, at the time of such exercise, (i)
there exists no uncured Event of Default; (ii) there shall not then be in effect
any assignment of this Lease by Tenant, or any sublease, license or other
occupancy agreement affecting twenty-five percent (25%) or more of the Premises
Area (other than to an entity controlling, controlled by or under common control
with Tenant or any other entity described in Section 12.2 hereof); and (iii)
this Lease is still in full force and effect, Tenant shall have the right to
extend the Term of this Lease for one (1) extended term (the "Extended Term") of
five (5) years. The Extended Term shall commence on the day immediately
following the expiration date of the Initial Term, and shall end on the day
immediately preceding the fifth anniversary of the first day of the Extended
Term. Tenant shall exercise such option to extend by giving written notice to
Landlord not later than nine (9) months prior to the expiration of the Initial
Term. The giving of such notice by Tenant shall automatically extend the Term of
this Lease for the Extended Term and no instrument of renewal need be executed.
In the event that Tenant fails to give such notice to Landlord, this Lease shall
automatically terminate at the end of the Initial Term, and Tenant shall have no
further option to extend the Term of this Lease, it being agreed that time shall
be of the essence in the giving of such notice. The Extended Term shall be on
all the terms and conditions of this Lease, except that the Base Rent for the
Extended Term shall be determined pursuant to SECTION 27.2 hereof.
27.2 RENTAL ETC. (a) The annual Base Rent for the Extended Term shall be
the Fair Market Rental Value of the Premises (exclusive of the cost of supplying
Tenant electricity, if and to the extent the same is paid separately by Tenant)
as of the commencement of the Extended Term (the "Determination Date"). The term
"Fair Market Rental Value" shall mean the annual fixed rent that a willing
tenant would pay and a willing landlord would accept, each acting in its own
best interest and without duress, in an arms-length lease of the Premises as of
the Determination Date. If Landlord and Tenant shall fail to agree upon the Fair
Market Rental Value within six (6) months before the Determination Date, then
Landlord and Tenant each shall give notice (the "Determination Notice") to the
other setting forth their respective determinations of the Fair Market Rental
Value, and, subject to the provisions of paragraph (b) below, either party may
apply to the American Arbitration Association or any successor thereto for the
designation of an arbitrator satisfactory to both parties to render a final
determination of the Fair Market Rental
40
Value. The fair market rental value shall be determined by arbitration in
accordance with the commercial arbitration rules of the American Arbitration
Association, except that there shall be only one arbitrator, who shall have had
at least ten (10) years' experience as a real estate broker or appraiser in the
greater Route 128/Metrowest area. The arbitrator shall conduct such hearings and
investigations as the arbitrator shall deem appropriate and shall, within thirty
(30) days after having been appointed, choose one of the determinations set
forth in either Landlord's or Tenant's Determination Notice, and that choice by
the arbitrator shall be binding upon Landlord and Tenant. The arbitrator may
take into account factors such as (but not limited to) the then condition of the
applicable space and the level of any leasehold improvement allowances or other
inducements then normally being offered to prospective tenants. Each party shall
pay its own counsel fees and expenses, if any, in connection with any
arbitration under this paragraph (a), and the parties shall share equally all
other expenses and fees of any such arbitration. The determination rendered in
accordance with the provisions of this paragraph (a) shall be final and binding
in fixing the Fair Market Rental Value. The arbitrator shall not have the power
to add to, modify, or change any of the provisions of this Lease. In no event,
however, shall the Base Rent for the Extended Term be less than the sum of (x)
the Base Rent in effect on day preceding the fifth anniversary of the Rent
Commencement Date, plus (y) amounts due under this Lease on account of Real
Property Tax increases and Operating Expense increases during the Comparison
Year immediately preceding the Extended Term.
(b) In the event that the determination of the Fair Market Rental
Value set forth in the Landlord's and Tenant's Determination Notices shall
differ by less than five percent (5%) per square foot of Premises Rentable Area
per annum for each year for which the same is being determined, then the Fair
Market Rental Value shall not be determined by arbitration, but shall instead be
set by taking the average of the determinations set forth in Landlord's and
Tenant's Determination Notices. Only if the determinations set forth in
Landlord's and Tenant's Determination Notices shall differ by more than five
percent (5%) per square foot of Premises Rentable area per annum for any year
for which the same is being determined shall the actual determination of Fair
Market Rental Value be made by an arbitrator as set forth in paragraph (a)
above.
(c) If for any reason the Fair Market Rental Value shall not have
been determined prior to the Determination Date, then, until the Fair Market
Rental Value and, accordingly, the Base Rent, shall have been finally
determined, Tenant shall pay Base Rent at the rate quoted by Landlord in
Landlord's Determination Notice. Upon final determination of the Fair Market
Rental Value, an appropriate adjustment to the Base Rent theretofore paid by
Tenant from and after the Determination Date shall be made reflecting such final
determination, and Landlord or Tenant, as the case may be, shall promptly credit
or pay, respectively, to the other any overpayment of deficiency, as the case
may be, in the payment of Base Rent from the Determination Date to the date of
such final determination.
28. LANDLORD RESERVATIONS. Landlord shall have the right: (a) to change the name
and address of the Property or Building upon not less than ninety (90) days
prior written notice; (b) to, at Tenant's expense (other than as may be
otherwise agreed by the parties with respect to signage provided as part of
Landlord's Work), provide and install Building standard signs and graphics on or
near the door of the Premises and such portions of the Common Areas as Landlord
shall determine, in Landlord's sole discretion; (c) to permit any tenant the
exclusive
41
right to conduct any business as long as such exclusive right does not conflict
with any rights expressly given herein; and (d) to place signs, notices or
displays upon the roof, interior, exterior or Common Areas of the Building.
Tenant shall not use a representation (photographic or otherwise) of the
Building or the Office Park or their name(s) in connection with Tenant's
business or suffer or permit anyone, except in an emergency, to go upon the roof
of the Building. Landlord reserves the right to use the exterior walls of the
Premises, and the area beneath, adjacent to and above the Premises together with
the right to install, use, maintain and replace equipment, machinery, pipes,
conduits and wiring through the Premises, which serve other parts of the
Property, provided that Landlord's use does not unreasonably interfere with
Tenant's use of the Premises.
29. CHANGES TO PROPERTY. Landlord shall have the right, in Landlord's sole
discretion, from time to time, to make changes to the size, shape, location,
number and extent of the improvements comprising the Property (hereinafter
referred to as "CHANGES") including, but not limited to, the Building interior
and exterior, the Common Areas, elevators, escalators, restrooms, HVAC,
electrical systems, communication systems, fire protection and detection
systems, plumbing systems, security systems, parking control systems, driveways,
entrances, parking spaces, parking areas and landscaped areas. In connection
with the Changes, Landlord may, among other things, erect scaffolding or other
necessary structures at the Building, limit or eliminate access to portions of
the Building or Property, including portions of the Common Areas, or perform
work in the Building, which work may create noise, dust or leave debris in the
Building. Tenant hereby agrees that such Changes and Landlord's actions in
connection with such Changes shall in no way constitute a constructive eviction
of Tenant or entitle Tenant to any abatement of rent. Landlord shall have no
responsibility or for any reason be liable to Tenant for any direct or indirect
injury to or interference with Tenant's business arising from the Changes, nor
shall Tenant be entitled to any compensation or damages from Landlord for any
inconvenience or annoyance occasioned by such Changes or Landlord's actions in
connection with such Changes. Landlord shall endeavor to minimize interference
with the conduct of Tenant's business in connection with any of the foregoing.
30. INTENTIONALLY OMITTED.
31. HOLDING OVER. If Tenant remains in possession of the Premises or any part
thereof after the expiration or earlier termination of the Term hereof with
Landlord's consent, such occupancy shall be a tenancy from month to month upon
all the terms and conditions of this Lease pertaining to the obligations of
Tenant, except that the Base Rent payable shall be the greater of (a) one
hundred fifty percent (150%) of the Base Rent payable immediately preceding the
Termination Date of this Lease or (b) one hundred twenty-five percent (125%) of
the fair market Base Rent for the Premises as of the date Tenant holds over, and
all Options, if any, shall be deemed terminated and be of no further effect.
Nothing contained herein shall be construed to constitute Landlord's consent to
Tenant holding over at the expiration or earlier termination of the Lease term
or to give Tenant the right to hold over after the expiration or earlier
termination of the Lease term. Tenant hereby agrees to indemnify, hold harmless
and defend Landlord from any cost, loss, claim or liability (including
attorneys' fees) Landlord may incur as a result of Tenant's failure to surrender
possession of the Premises to Landlord upon the termination of this Lease.
42
32. LANDLORD'S ACCESS.
32.1 ACCESS. Landlord and Landlord's agents, contractors and employees
shall have the right to enter the Premises at reasonable times and upon
reasonable advance notice (which need not be in writing, and which need not be
given at all in the case of an emergency) for the purpose of inspecting the
Premises, performing any services required of Landlord, showing the Premises to
prospective purchasers, lenders, or tenants, undertaking safety measures and
making alterations, repairs, improvements or additions to the Premises or to the
Office Park. In the event of an emergency, Landlord may gain access to the
Premises by any reasonable means, and Landlord shall not be liable to Tenant for
damage to the Premises or to Tenant's property resulting from such access.
Landlord may at any time place on or about the Building for sale or for lease
signs and Landlord may at any time during the last ninety (90) days of the term
hereof place on or about the Premises for lease signs.
32.2 KEYS. Landlord shall have the right to retain keys and electric codes
or card keys to the locks, card key access systems and other security systems on
the entry doors to the Premises and all interior doors at the Premises. At
Landlord's option, Landlord may require Tenant to obtain all keys to door locks
at the Premises from Landlord's engineering staff or Landlord's locksmith and to
only use Landlord's engineering staff or Landlord's locksmith to change locks at
the Premises. Tenant shall pay Landlord's or its locksmith's standard charge for
all keys and other services obtained from Landlord's engineering staff or
locksmith.
33. SECURITY MEASURES. Tenant hereby acknowledges that Landlord shall have no
obligation whatsoever to provide guard service or other security measures for
the benefit of the Premises or the Property, and Landlord shall have no
liability to Tenant due to its failure to provide such services. Tenant assumes
all responsibility for the protection of Tenant, its agents, employees,
contractors and invitees and the property of Tenant and of Tenant's agents,
employees, contractors and invitees from acts of third parties. Nothing herein
contained shall prevent Landlord, at Landlord's sole option, from implementing
security measures for the Property or any part thereof, in which event Tenant
shall participate in such security measures and the cost thereof shall be
included within the definition of Operating Expenses, and Landlord shall have no
liability to Tenant or its agents, employees, contractors and invitees arising
out of Landlord's negligent provision of security measures. Landlord shall have
the right, but not the obligation, to require all persons entering or leaving
the Property to identify themselves to a security guard and to reasonably
establish that such person should be permitted access to the Property.
34. EASEMENTS. Landlord reserves to itself the right, from time to time, to
grant such easements, rights and dedications that Landlord deems necessary or
desirable, and to cause the recordation of parcel maps and restrictions, so long
as such easements, rights, dedications, maps and restrictions do not
unreasonably interfere with the use of the Premises by Tenant. Tenant shall sign
any of the aforementioned documents within ten (10) days after Landlord's
request and Tenant's failure to do so shall constitute a material default by
Tenant. The obstruction of Tenant's view, air, or light by any structure erected
in the vicinity of the Building, whether by Landlord or third parties, shall in
no way affect this Lease or impose any liability upon Landlord.
35. TRANSPORTATION MANAGEMENT. Tenant shall fully comply at its sole expense
with all present or future programs implemented or required by any governmental
or quasi-governmental
43
entity or Landlord to manage parking, transportation, air pollution, or traffic
in and around the Property or the metropolitan area in which the Property is
located.
36. SEVERABILITY. The invalidity of any provision of this Lease as determined by
a court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
37. TIME OF ESSENCE. Time is of the essence with respect to each of the
obligations to be performed by Tenant under this Lease.
38. DEFINITION OF ADDITIONAL RENT. All monetary obligations of Tenant to
Landlord under the terms of this Lease, including, but not limited to, Base
Rent, Tenant's Share of Operating Expenses and Tenant's Share of Real Property
Tax increases, shall be deemed to be rent.
39. INCORPORATION OF PRIOR AGREEMENTS. This Lease and the attachments listed in
SECTION 1.17 contain all agreements of the parties with respect to the lease of
the Premises and any other matter mentioned herein. No prior or contemporaneous
agreement or understanding pertaining to any such matter shall be effective.
Except as otherwise stated in this Lease, Tenant hereby acknowledges that no
real estate broker nor Landlord or any employee or agents of any of said persons
has made any oral or written warranties or representations to Tenant concerning
the condition or use by Tenant of the Premises or the Property or concerning any
other matter addressed by this Lease.
40. AMENDMENTS. This Lease may be modified in writing only, signed by the
parties in interest at the time of the modification.
41. NOTICES. All notices required or permitted by this Lease shall be in writing
and may be delivered (a) in person (by hand, by messenger or by courier
service), (b) by U.S. Postal Service certified mail, return receipt requested,
or (c) by U.S. Postal Service Express Mail, Federal Express or other nationally
recognized overnight courier, and shall be deemed sufficiently given if served
in a manner specified in this SECTION 41. Any notice permitted or required
hereunder, and any notice to pay rent or quit or similar notice, shall be deemed
personally delivered to Tenant on the date the notice is personally delivered to
any employee of Tenant at the Premises. The addresses set forth in SECTION 1.22
of this Lease shall be the address of each party for notice purposes. Landlord
or Tenant may by written notice to the other specify a different address for
notice purposes. A copy of all notices required or permitted to be given to
either party hereunder shall be concurrently transmitted to such party or
parties at such addresses as such other party may from time to time hereinafter
designate by written notice to the other party. Any notice sent by certified
mail, return receipt requested, shall be deemed given three (3) days after
deposited with the U.S. Postal Service. Notices delivered by U.S. Express Mail,
Federal Express or other nationally recognized courier shall be deemed given on
the date delivered by the carrier or the date delivery is refused at the
appropriate party's address for notice purposes. If notice is received on
Saturday, Sunday or a legal holiday, it shall be deemed received on the next
business day. Nothing contained herein shall be construed to limit Landlord's
right to serve any notice to pay rent or quit or similar notice by any method
permitted by applicable law, and any such notice shall be effective if served in
accordance with any method permitted by applicable law whether or not the
requirements of this Section 41 have been met.
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42. WAIVERS. No waiver by Landlord of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. Landlord's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of Landlord's consent to
or approval of any subsequent act by Tenant. The acceptance of rent hereunder by
Landlord shall not be a waiver of any preceding breach by Tenant of any
provision hereof, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent. No acceptance by Landlord of partial payment of
any sum due from Tenant shall be deemed a waiver by Landlord of its right to
receive the full amount due, nor shall any endorsement or statement on any check
or accompanying letter from Tenant be deemed an accord and satisfaction. Tenant
hereby waives for Tenant and all those claiming under Tenant all rights now or
hereafter existing to redeem by order or judgment of any court or by legal
process or writ, Tenant's right of occupancy of the Premises after any
termination of this Lease or to otherwise obtain relief from the forfeiture or
termination of the Lease.
43. COVENANTS. This Lease shall be construed as though Landlord's covenants
contained herein are independent and not dependent and Tenant hereby waives the
benefit of any statute to the contrary. All provisions of this Lease to be
observed or performed by Tenant are both covenants and conditions.
44. BINDING EFFECT; CHOICE OF LAW
Subject to any provision hereof restricting assignment or subletting by Tenant,
this Lease shall bind the parties, their heirs, personal representatives,
successors and assigns. This Lease shall be governed by the laws of the state in
which the Property is located and any litigation concerning this Lease between
the parties hereto shall be initiated in the county in which the Property is
located.
45. ATTORNEYS' FEES. If Landlord or Tenant brings an action to enforce the terms
hereof or declare rights hereunder, the prevailing party in any such action, or
appeal thereon, shall be entitled to its reasonable attorneys' fees and court
costs to be paid by the losing party as fixed by the court in the same or
separate suit, and whether or not such action is pursued to decision or
judgment. The attorneys' fee award shall not be computed in accordance with any
court fee schedule, but shall be such as to fully reimburse all attorneys' fees
and court costs reasonably incurred in good faith. Landlord shall be entitled to
reasonable attorneys' fees and all other costs and expenses incurred in the
preparation and service of notices of default and consultations in connection
therewith, whether or not a legal action is subsequently commenced in connection
with such default. Landlord and Tenant agree that attorneys' fees incurred with
respect to defaults and bankruptcy are actual pecuniary losses within the
meaning of Section 365(b)(1)(B) of the Bankruptcy Code or any successor statute.
46. AUCTIONS. Tenant shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises or the Common Areas.
The holding of any auction on the Premises or Common Areas in violation of this
SECTION 46 shall constitute a material default hereunder.
45
47. SIGNS. Tenant shall not place any sign upon the Premises (including on the
inside or the outside of the doors or windows of the Premises) or the Building
without Landlord's prior written consent, which may be given or withheld in
Landlord's sole discretion. Landlord shall have the right to place any sign it
deems appropriate on any portion of the Building or the Property except the
interior of the Premises. Any sign Landlord permits Tenant to place upon the
Premises shall be maintained by Tenant, at Tenant's sole expense. Landlord shall
provide signage with Tenant's name in the Building's lobby directory, and
Landlord shall also provide Building standard signage with Tenant's name in the
third floor elevator lobby and at the entrance to the Premises. The cost of
replacing any names in the directory and the cost of any other subsequent
modifications to the foregoing signs shall be paid by Tenant, at Tenant's sole
expense.
48. MERGER. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, or a termination by Landlord, shall not result in
the merger of Landlord's and Tenant's estates, and shall, at the option of
Landlord, terminate all or any existing subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
49. QUIET POSSESSION. Provided Tenant is not in default hereunder, and subject
to the rights of any lender, Tenant shall have quiet possession of the Premises
for the entire term hereof subject to all of the provisions of this Lease.
50. AUTHORITY. If Tenant is a corporation, trust, limited liability company or
general or limited partnership, Tenant represents and warrants that the
individual executing this Lease has been duly authorized to execute and deliver
this Lease on behalf of said entity, that said entity is duly authorized to
enter into this Lease, and that this Lease is enforceable against said entity in
accordance with its terms. If Tenant is a corporation, trust, limited liability
company or partnership, Tenant shall deliver to Landlord upon demand evidence of
such authority satisfactory to Landlord.
51. CONFLICT. Except as otherwise provided herein to the contrary, any conflict
between the printed provisions, exhibits, addenda or riders of this Lease and
the typewritten or handwritten provisions, if any, shall be controlled by the
typewritten or handwritten provisions.
52. MULTIPLE PARTIES. If more than one person or entity is named as Tenant
herein, the obligations of Tenant shall be the joint and several
responsibilities of all persons or entities named herein as Tenant. Service of a
notice in accordance with SECTION 41 on one Tenant shall be deemed service of
notice on all Tenants.
53. INTERPRETATION. This Lease shall be interpreted as if it was prepared by
both parties and ambiguities shall not be resolved in favor of Tenant because
all or a portion of this Lease was prepared by Landlord. The captions contained
in this Lease are for convenience only and shall not be deemed to limit or alter
the meaning of this Lease. As used in this Lease the words tenant and landlord
include the plural as well as the singular. Words used in the neuter gender
include the masculine and feminine gender.
46
54. PROHIBITION AGAINST RECORDING. Neither this Lease, nor any memorandum,
affidavit or other writing with respect thereto, shall be recorded by Tenant or
by anyone acting through, under or on behalf of Tenant. Either Landlord or
Tenant shall have the right to record a notice of this Lease, and the other
party shall execute, acknowledge and deliver to the party requesting same for
recording any such notice.
55. RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall be deemed or
construed by the parties hereto or by any third party to create the relationship
of principal and agent, partnership, joint venturer or any association between
Landlord and Tenant.
56. RULES AND REGULATIONS. Tenant agrees to abide by and conform to the Rules
and to cause its employees, suppliers, customers and invitees to so abide and
conform. Landlord shall have the right, from time to time, to modify, amend and
enforce the Rules in a non-discriminatory manner. Landlord shall not be
responsible to Tenant for the failure of other persons including, but not
limited to, other tenants, their agents, employees and invitees to comply with
the Rules.
57. RIGHT TO LEASE. Landlord reserves the absolute right to effect such other
tenancies in the Building or the Property as Landlord in its sole discretion
shall determine, and Tenant is not relying on any representation that any
specific tenant or number of tenants will occupy the Building or the Property.
58. INTENTIONALLY OMITTED.
59. INTENTIONALLY OMITTED.
60. ATTACHMENTS. The items listed in SECTION 1.21 are a part of this Lease and
are incorporated herein by this reference.
61. COSTS RELATED TO TENANT REQUESTS. Tenant shall reimburse Landlord promptly
upon request for the costs and expenses actually and reasonably incurred by
Landlord as a result of any Tenant request, including, for example, legal fees
and expenses incurred to review an assignment or subletting request (which
Landlord agrees shall not exceed One Thousand Dollars ($1,000) during the first
five years of the Lease Term in the case of a request for approval of a sublease
or an assignment) or architectural and engineering fees incurred to review a
proposed alteration by Tenant.
62. CONFIDENTIALITY. Tenant acknowledges and agrees that the terms of this Lease
are confidential and constitute propriety information of Landlord. Disclosure of
the terms hereof could adversely affect the ability of Landlord to negotiate
other leases with respect to the Office Park and may impair Landlord's
relationship with other tenants of the Office Park. Except for (i) matters that
must be disclosed by Tenant to comply with applicable legal requirements or with
the order of any court or other governmental agency or authority having
jurisdiction, and (ii) matters disclosed by Tenant to its attorneys,
accountants, lenders, investors and/or parties to any potential merger,
acquisition or other combination, Tenant agrees that it and its partners,
officers, directors, employees, brokers, and attorneys, if any, shall not
disclose the terms and conditions of this Lease to any other person or entity
without the prior written consent of Landlord which may be given or withheld by
Landlord, in Landlord's sole discretion. Any permitted disclosure shall
47
be accompanied by a statement reflecting the terms of this provision. It is
understood and agreed that damages alone would be an inadequate remedy for the
breach of this provision by Tenant, and Landlord shall also have the right to
seek specific performance of this provision and to seek injunctive relief to
prevent its breach or continued breach.
63. WAIVER OF JURY TRIAL. LANDLORD AND TENANT HEREBY WAIVE THEIR RESPECTIVE
RIGHT TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR
CROSS-COMPLAINT IN ANY ACTION, PROCEEDING AND/OR HEARING BROUGHT BY EITHER
LANDLORD AGAINST TENANT OR TENANT AGAINST LANDLORD ON ANY MATTER WHATSOEVER
ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS LEASE, THE RELATIONSHIP OF
LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR ANY CLAIM OF
INJURY OR DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY LAW, STATUTE, OR
REGULATION, EMERGENCY OR OTHERWISE, NOW OR HEREAFTER IN EFFECT. LANDLORD AND
TENANT ACKNOWLEDGE THAT THEY HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND
EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW
THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT
THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT WITH
RESPECT TO THE PREMISES. TENANT ACKNOWLEDGES THAT IT HAS BEEN GIVEN THE
OPPORTUNITY TO HAVE THIS LEASE REVIEWED BY ITS LEGAL COUNSEL PRIOR TO ITS
EXECUTION. PREPARATION OF THIS LEASE BY LANDLORD OR LANDLORD'S AGENT AND
SUBMISSION OF SAME TO TENANT SHALL NOT BE DEEMED AN OFFER BY LANDLORD TO LEASE
THE PREMISES TO TENANT OR THE GRANT OF AN OPTION TO TENANT TO LEASE THE
PREMISES. THIS LEASE SHALL BECOME BINDING UPON LANDLORD ONLY WHEN FULLY EXECUTED
BY BOTH PARTIES AND WHEN LANDLORD HAS DELIVERED A FULLY EXECUTED ORIGINAL OF
THIS LEASE TO TENANT.
64. ACCESS TO PREMISES. Tenant shall have access to the Premises 24 hours a day,
7 days per week, but such access shall always be subject to reasonable rules and
regulations from time to time established for the Building by Landlord (and
shall be subject to interruption due to causes beyond Landlord's reasonable
control).
Balance of Page Intentionally Left Blank
48
WITNESS the execution hereof as a sealed instrument as of the date
first above written.
LANDLORD
PROSPECT HILL ACQUISITION TRUST
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
TENANT
THE MEDICINES COMPANY
By:
-------------------------------------
Name: David M. Stack
Title: President and Chief Executive
Officer
IF TENANT IS A CORPORATION, TRUST, LIMITED PARTNERSHIP OR LIMITED LIABILITY
COMPANY, A SECRETARY'S, CLERK'S, TRUSTEE'S, GENERAL PARTNER'S OR MANAGING
MEMBER'S CERTIFICATE OF THE AUTHORITY AND THE INCUMBENCY OF THE PERSON SIGNING
ON BEHALF OF TENANT SHALL BE ATTACHED.
49
EXHIBIT A
PREMISES
50
EXHIBIT B
VERIFICATION LETTER
____________________ , 200
[Name of Contact]
[Name of Tenant]
RE: [Name of Tenant]
[Premises Rentable Area and Floor]
Dear [Name of Contact]:
Reference is made to that certain Lease, dated as of _____________, 200__,
between PROSPECT HILL ACQUISITION TRUST, as Landlord and _________________ as
Tenant, with respect to approximately _______ square feet of space on the
________________ floor of 230 Third Avenue, Waltham, Massachusetts. In
accordance with Section 3.1 of the Lease, this is to confirm that the
Commencement Date of the term of such Lease occurred on _____________________ ,
and that the Term of such Lease shall expire on _______________, 200___. This
will also confirm that any work to have been performed by Landlord to prepare
the premises for Tenant's occupancy has been performed, and that the Tenant has
taken occupancy and possession of the Premises. If the foregoing is in
accordance with your understanding, would you kindly execute this letter in the
space provided below, and return the same to us for execution by Landlord,
whereupon it will become a binding agreement between us.
Very truly yours,
By: _________________________
Name:
Title:
Accepted and Agreed:
[Name of Tenant]
By:
Name:
Title:
Date:
51
EXHIBIT C
RULES AND REGULATIONS
GENERAL RULES
Tenant shall faithfully observe and comply with the following Rules and
Regulations.
1. Tenant shall not alter any locks or install any new or additional locks
or bolts on any doors or windows of the Premises without obtaining Landlord's
prior written consent. Tenant shall bear the cost of any lock changes or repairs
required by Tenant. Keys required by Tenant must be obtained from Landlord at a
reasonable cost to be established by Landlord.
2. All doors opening to public corridors shall be kept closed at all times
except for normal ingress and egress to the Premises. Tenant shall assume any
and all responsibility for protecting the Premises from theft, robbery and
pilferage, which includes keeping doors locked and other means of entry to the
Premises closed.
3. Landlord reserves the right to close and keep locked all entrance and
exit doors of the Building except during the Building's normal hours of business
as defined in SECTION 11.4 of the Lease. Tenant, its employees and agents must
be sure that the doors to the Building are securely closed and locked when
leaving the Premises if it is after the normal hours of business of the
Building. Tenant, its employees, agents or any other persons entering or leaving
the Building at any time when it is so locked, or any time when it is considered
to be after normal business hours for the Building, may be required to sign the
Building register. Access to the Building or the Property may be refused unless
the person seeking access has proper identification or has a previously received
authorization for access to the Building or the Property. Landlord and its
agents shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the Building or the Property of any person. In
case of invasion, mob, riot, public excitement, or other commotion, Landlord
reserves the right to prevent access to the Building or the Property during the
continuance thereof by any means it deems appropriate for the safety and
protection of life and property.
4. Landlord reserves the right, in Landlord's sole and absolute
discretion, to close or limit access to the Building, the Property and/or the
Premises, from time to time, due to the failure of utilities, due to damage to
the Building, the Property and/or the Premises, to ensure the safety of persons
or property or due to government order or directive, and Tenant agrees to
immediately comply with any such decision by Landlord. If Landlord closes or
limits access to the Building, the Property and/or the Premises for the reasons
described above, Landlord's actions shall not constitute a breach of the Lease.
5. No furniture, freight or equipment of any kind shall be brought into
the Building without Landlord's prior authorization. All moving activity into or
out of the Building shall be scheduled with Landlord and done only at such time
and in such manner as Landlord designates. Landlord shall have the right to
prescribe the weight, size and position of all safes and other heavy property
brought into the Building and also the times and manner of moving the same in
and out of the Building. Safes and other heavy objects shall, if considered
necessary by Landlord, stand on supports of such thickness as is necessary to
properly distribute the weight,
52
and Tenant shall be solely responsible for the cost of installing all supports.
Landlord will not be responsible for loss of or damage to any such safe or
property in any case. Any damage to any part of the Building or the Property,
its contents, occupants or visitors by moving or maintaining any such safe or
other property shall be the sole responsibility and expense of Tenant.
6. The requirements of Tenant will be attended to only upon application at
the management office for the Building or at such office location designated by
Landlord. Tenant shall not ask employees of Landlord to do anything outside
their regular duties without special authorization from Landlord.
7. Tenant shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate with Landlord and its agents to prevent the same.
Tenant, its employees and agents shall not loiter in or on the entrances,
corridors, sidewalks, lobbies, halls, stairways, elevators, or any Common Areas
for the purpose of smoking tobacco products or for any other purpose, nor in any
way obstruct such areas, and shall use them only as a means of ingress and
egress for the Premises. Smoking shall not be permitted in the Common Areas.
8. The toilet rooms, urinals and wash bowls shall not be used for any
purpose other than that for which they were constructed, and no foreign
substance of any kind whatsoever shall be thrown therein. The expense of any
breakage, stoppage or damage resulting from the violation of this rule shall be
borne by the tenant who, or whose employees or agents, shall have caused it.
9. Except for vending machines intended for the sole use of Tenant's
employees and invitees, no vending machine or machines other than fractional
horsepower office machines shall be installed, maintained or operated upon the
Premises without the written consent of Landlord. All vendors or other persons
visiting the Premises shall be subject to the reasonable control of Landlord.
Tenant shall not permit its vendors or other persons visiting the Premises to
solicit other tenants of the Building.
10. Tenant shall not use or keep in or on the Premises or the Building any
kerosene, gasoline or other inflammable or combustible fluid or material. Tenant
shall not bring into or keep within the Premises or the Building any animals,
birds, bicycles or other vehicles.
11. Tenant shall not use, keep or permit to be used or kept, any foul or
noxious gas or substance in or on the Premises, or permit or allow the Premises
to be occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors, or vibrations, or to
otherwise interfere in any way with the use of the Building or the Property by
other tenants.
12. No cooking shall be done or permitted on the Premises, nor shall the
Premises be used for the storage of merchandise, for loading or for any
improper, objectionable or immoral purposes. Notwithstanding the foregoing,
Underwriters' Laboratory approved equipment and microwave ovens may be used in
the Premises for heating food and brewing coffee, tea, hot chocolate and similar
beverages for employees and visitors of Tenant, provided that such use is in
accordance with all applicable federal, state and city laws, codes, ordinances,
rules and
53
regulations; and provided further that such cooking does not result in odors
escaping from the Premises.
13. Landlord shall have the right to approve where and how telephone wires
are to be introduced to the Premises. No boring or cutting for wires shall be
allowed without the consent of Landlord. The location of telephone call boxes
and other office equipment affixed to the Premises shall be subject to the
approval of Landlord. Tenant shall not mark, drive nails or screws, or drill
into the partitions, woodwork or plaster contained in the Premises or in any way
deface the Premises or any part thereof without Landlord's prior written
consent. Tenant shall not install any radio or television antenna, satellite
dish, loudspeaker or other device on the roof or exterior walls of the Building.
Tenant shall not interfere with broadcasting or reception from or in the
Building or elsewhere.
14. Landlord reserves the right to exclude or expel from the Property any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules and Regulations.
15. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to ensure the most effective operation
of the Building's heating and air conditioning system, and shall refrain from
attempting to adjust any controls. Tenant shall not without the prior written
consent of Landlord use any method of heating or air conditioning other than
that supplied by Landlord. Tenant shall not use electric fans or space heaters
in the Premises.
16. Tenant shall store all its trash and garbage within the interior of
the Premises. No material shall be placed in the trash boxes or receptacles if
such material is of such nature that it may not be disposed of in the ordinary
and customary manner of removing and disposing of trash from the Building
without violation of any law or ordinance governing such disposal. All trash,
garbage and refuse disposal shall be made only through entry-ways and elevators
provided for such purposes at such times as Landlord shall designate.
17. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
18. No awnings or other projection shall be attached to the outside walls
or windows of the Building by Tenant. No curtains, blinds, shades or screens
shall be attached to or hung in any window or door of the Premises without the
prior written consent of Landlord. Landlord shall have the right to require
Tenant to use Landlord's standard curtains or window coverings. Tenant shall not
place any signs in the windows of the Premises or the Building. All electrical
ceiling fixtures hung in the Premises must be fluorescent and/or of a quality,
type, design and bulb color approved by Landlord. Tenant shall abide by
Landlord's regulations concerning the opening and closing of window coverings
which are attached to the windows in the Premises. The skylights, windows, and
doors that reflect or admit light and air into the halls, passageways or other
public places in the Building shall not be covered or obstructed by Tenant, nor
shall any bottles, parcels or other articles be placed on the window sills.
54
19. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning the Premises unless otherwise agreed to
in writing by Landlord. Except with the prior written consent of Landlord, no
person or persons other than those approved by Landlord shall be permitted to
enter the Building for the purpose of cleaning same. Landlord shall in no way be
responsible to Tenant for any loss of property on the Premises, however
occurring, or for any damage done to the effects of Tenant or any of its
employees or other persons by the janitor of Landlord. Landlord shall not be
obligated to notify Tenant of the times at which the janitorial staff will enter
the Premises, and Tenant hereby authorizes the janitorial staff to enter the
Premises at any time, without notice. Janitor service shall include ordinary
dusting and cleaning by the janitor assigned to such work and shall not include
cleaning of carpets or rugs, except normal vacuuming, or moving of furniture and
other special services. Window cleaning shall be done only by Landlord at
reasonable intervals and as Landlord deems necessary.
20. Tenant acknowledges that the local fire department has previously
required Landlord to participate in a fire and emergency preparedness program or
may require Landlord and/or Tenant to participate in such a program in the
future. Tenant agrees to take all actions necessary to comply with the
requirements of such a program including, but not limited to, designating
certain employees as "fire wardens" and requiring them to attend any necessary
classes and meetings and to perform any required functions.
PARKING RULES
1. Parking areas shall be used only for parking by vehicles no longer than
full size, passenger automobiles or minivans. Tenant and its employees shall
park automobiles within the lines of the parking spaces.
2. Tenant shall not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, suppliers, shippers, customers, or
invitees to be loaded, unloaded, or parked in areas other than those designated
by Landlord for such activities. Users of the parking area will obey all posted
signs and park only in the areas designated for vehicle parking.
3. Parking stickers, parking cards and other identification devices shall
be the property of Landlord and shall be returned to Landlord by the holder
thereof upon termination of the holder's parking privileges. Landlord may
require Tenant and each of its employees to give Landlord a deposit when a
parking card or other parking device is issued. Landlord shall not be obligated
to return the deposit unless and until the parking card or other device is
returned to Landlord. Tenant will pay such replacement charges as is reasonably
established by Landlord for the loss of such devices. Loss or theft of parking
identification stickers or devices from automobiles must be reported to the
parking operator immediately. Any parking identification stickers or devices
reported lost or stolen found on any unauthorized car will be confiscated and
the illegal holder will be subject to prosecution.
4. Landlord reserves the right to relocate all or a part of parking spaces
within the parking area and/or to reasonably adjacent off site locations(s), and
to allocate them between compact and standard size and tandem spaces, as long as
the same complies with applicable laws, ordinances and regulations.
55
5. Unless otherwise instructed, every person using the parking area is
required to park and lock his own vehicle. Landlord will not be responsible for
any damage to vehicles, injury to persons or loss of property, all of which
risks are assumed by the party using the parking area.
6. Validation of visitor parking, if established, will be permissible only
by such method or methods as Landlord may establish at rates determined by
Landlord, in Landlord's sole discretion. Only persons visiting Tenant at the
Premises shall be permitted by Tenant to use the Property's visitor parking
facilities.
7. The maintenance, washing, waxing or cleaning of vehicles in the parking
structure or Common Areas is prohibited.
8. Tenant shall be responsible for seeing that all of its employees,
agents and invitees comply with the applicable parking rules, regulations, laws
and agreements. Parking area managers or attendants, if any, are not authorized
to make or allow any exceptions to these Parking Rules and Regulations. Landlord
reserves the right to terminate parking rights for any person or entity that
willfully refuses to comply with these rules and regulations.
9. Every driver is required to park his own car. Where there are tandem
spaces, the first car shall pull all the way to the front of the space leaving
room for a second car to park behind the first car. The driver parking behind
the first car must leave his key with the parking attendant. Failure to do so
shall subject the driver of the second car to a Fifty Dollar ($50.00) fine.
Refusal of the driver to leave his key when parking in a tandem space shall be
cause for termination of the right to park in the parking facilities. The
parking operator, or his employees or agents, shall be authorized to move cars
that are parked in tandem should it be necessary for the operation of the
garage. Tenant agrees that all responsibility for damage to cars or the theft of
or from cars is assumed by the driver, and further agrees that Tenant will hold
Landlord harmless for any such damages or theft.
10. Any vehicle parked by Tenant, its employees, contractors or visitors
in a reserved parking space or in any area of the parking area that is not
designated for the parking of such a vehicle may, at Landlord's option, and
without notice or demand, be towed away by any towing company selected by
Landlord, and the cost of such towing shall be paid for by Tenant and/or the
driver of said vehicle.
11. Any vehicle parked by Tenant, its employees, contractors or visitors
in a reserved parking space or in any area of the parking area that is not
designated for the parking of such a vehicle may, at Landlord's option, and
without notice or demand, be towed away by any towing company selected by
Landlord, and the cost of such towing shall be paid for by Tenant and/or the
driver of said vehicle.
12. At Landlord's request, Tenant shall provide Landlord with a list which
includes the name of each person using the parking facilities based on Tenant's
parking rights under this Lease and the license plate number of the vehicle
being used by that person. Tenant shall provide Landlord with an updated list
within five (5) days after any part of the list becomes inaccurate.
56
Landlord reserves the right at any time to change or rescind any one or
more of these Rules and Regulations, or to make such other and further
reasonable Rules and Regulations as in Landlord's reasonable judgment may from
time to time be necessary for the management, safety, care and cleanliness of
the Property, and for the preservation of good order therein, as well as for the
convenience of other occupants and tenants therein. Landlord may waive any one
or more of these Rules and Regulations for the benefit of any particular tenant,
but no such waiver by Landlord shall be construed as a waiver of such Rules and
Regulations in favor of any other tenant, nor prevent Landlord from thereafter
enforcing any such Rules or Regulations against any or all tenants of the
Property. Tenant shall be deemed to have read these Rules and Regulations and to
have agreed to abide by them as a condition of its occupancy of the Premises.
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200 FIFTH AVENUE
WALTHAM MA
- BUILDING STANDARDS SUMMARY -
I. GENERAL REQUIREMENTS
ADA All architectural and engineering will conform to the
requirements of ADAAG. All new construction and
renovations shall comply to with the Americans with
Disabilities Act.
Building Codes All new construction and renovations shall be built in
full compliance with all city regulation, the city
zoning ordinance and state building codes. The
contractor shall obtain and pay for all applicable
permits including building and occupancy permits.
Substitutions The information given here is intended to provide
minimum quality levels for construction standards.
Substitutions will be entertained but must be approved
in writing by the owner's architect and agent
Existing Conditions Where improvements as planned to modify an existing
space, the existing condition shall not fall below the
standard described in this document.
Electric Meters Tenant must connect all power sources to meters supplied
by Landlord
II. DOORS, FRAMES & HARDWARE
Main Tenant
Entrance Doors Main tenant entrance door shall be ceiling high (3'-0" x
8'-5") "Herculite" 3/4" tempered glass entry door, style
"P", metal rail at top and bottom, with 1" diameter
push/pull set, magnetic locking hardware, and adjacent
(2'-0" x 8'-5") fixed glass panel. Refer to Appendix "A"
for details.
Additional Tenant
Entrance Doors Additional entrance doors will be ceiling high (3'-0" x
8'-4"), plain sliced white oak face, solid core, 1-3/4",
stained to match existing conditions and finished with
two coats clear polyurethane. Door frames will be hollow
metal knock down. Entrance doors will be provided in
sufficient quantity to meet local code requirements.
Interior Doors Interior doors will be full height (3'-0" x 8'-4"),
plain sliced white oak face, solid core, 1 -3/4" thick,
stained to match existing conditions and finished with
two coats of polyurethane. Door frames will be pressed
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metal. Hardware will include one and one half pair of
butt hinges, one lever action passage latch set and one
floor stop.
Door Hardware All door hardware shall be US26D brushed chrome finish.
All pairs and uneven pairs shall receive concealed
manual flush bolts at top and bottom of inactive leaf.
Passage Latch Set:
"Schlage" Series "D" Sparta
Model: Passage #D10S
Lock Set:
"Schlage" Series "D" Sparta
Model: Lock #D73P
Store Room Lock Set:
"Schlage" Series "D" Sparta
Model: Lock #D80PD
Dummy Trim:
"Schlage" Series "D" Sparta
Model: #D170
Stops:
"Ives" #436 Floor Stop
Hinges:
"Stanley" #FBB191
1-1/2 pair per leaf
Door Closures All closures shall be US26D brushed chrome finish.
Tenant wood doors: LCN 4041
Tenant wood doors: LCN 1460
Tenant glass entrances BTS Dorma in-floor closure
(common size 3 & 4).
III. PARTITIONS
Typical Partition Partitions will be 3-5/8" metal studs, 16" o.c. with one
layer of 1/2" gypsum board on each side. Partition will
extend from floor to 6" above acoustical tile ceiling.
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Demising Partition Demising partition will be 3-5/8" metal studs, 16" o.c.
with one layer of 1/2" gypsum board on each side, sound
batt insulation. Wall will extend to floor above.
Covebase All partitions will have a vinyl base, 4" high, color
selection to be from building standard.
(i)
(ii) IV. Ceilings
Tile and Grid Shall be 24" x 24" lay-in mineral acoustical tile
"Armstrong" Cirrus #584, white tile, with angled tegular
edge, on an exposed 15/16" grid "T" white suspension
system.
Ceiling heights will be: 8'-6"
IV. FLOOR
Carpeting Tenant will have its choice of "Bigelow" carpeting in
either Camden, Fairfield, or Picadilly patterns. All
carpet shall be directly glued down and min. 28 oz.
(bldg. standard).
Tile Shall be 12" x 12"standard vinyl composition to be installed only in
kitchen areas and computer server rooms.
V. PAINTING AND WALLCOVERING
Painting All wall surfaces shall receive two coats of "Benjamin
Moore" satin finish latex paint. Color selection will be
tenant's discretion with not more than one color per
room. Substitutions will be entertained but must be
approved in writing by the owner's architect and agent.
All metal door frames shall receive two coats of
semi-gloss enamel.
Wallcovering If tenant desires a special wallcovering, it shall be
furnished and installed at tenant's expense with a
credit provided for the value of the finish coat of
latex paint.
VI. SPECIALTIES
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Window Coverings Vertical "Louverdrape" blinds shall be installed at
exterior windows throughout the tenant area. Blinds will
be uniform in color throughout the building.
Signage Building standard sign are furnished, no logos allowed.
VII. LIGHTING
Lighting Low brightness, 2'x 4', 18- cell, three tube parabolic
fixtures will be provided at a ratio of one fixture for
each 96 square feet of usable area.
VIII. FIRE PROTECTION
Sprinklers A complete fire protection sprinkler system using
exposed chrome ring, semi-recessed sprinkler heads, will
be provided to protect normal office use. Additional
fire protection for special uses will be provided at
tenant's request and expense.
(iii) X. Electrical Service
Electrical Outlets One duplex outlet will be provided for each
100 square feet of usable area.
IX. HVAC
HVAC System A zoned heat pump HVAC system will be provided including
distribution ductwork, diffusers, return air grilles and
thermostatic controls for a normal office layout.
If areas such as computer rooms, copier rooms,
telephone/network rooms, or cafeterias require special
cooling equipment, stand-alone units will be provided at
the tenant's expense.
Zones Linear diffusers are standard at the perimeter.
2 x 2 lay-in diffusers are standard in interior zones.
Conference Rooms: Separate zone recommended.
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Thermostats Thermostats shall be building standard programmable
thermostats.
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