EXHIBIT 10.45
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AMENDED AND RESTATED LEASE
dated as of January 1, 1998
By and Between
ONE MEMORIAL DRIVE LIMITED PARTNERSHIP
and
PUTNAM, HAYES & ▇▇▇▇▇▇▇▇, INCORPORATED
TABLE OF CONTENTS
Page
ARTICLE I
REFERENCE DATA ...................................................1
1.1 Subjects referred to............................1
1.2 Exhibits .......................................3
ARTICLE II
PREMISES AND TERM ................................................3
2.1 Premises ......................................... 3
2.2 Common Facilities ..................................4
2.3 Landlord's Reservations ............................4
2.4 Term ...............................................4
2.5 Additional Terms ...................................4
2.6 Determination of Fair Rental Value..................5
ARTICLE III
CONSTRUCTION.......5
3.1 Intention Ily Deleted ..............................5
3.2 Tenant Changes and Additions ..........................5
3.3 Landlord's Construction Contribution ...............7
3.4 General Provisions Applicable to Construction ......8
3.5 Construction Representatives .......................8
ARTICLE IV
RENT .............................................................8
4.1 Fixed Rent .........................................8
4.2 Additional Rent ....................................9
ARTICLE V
LANDLORD'S COVENANTS ...........................................15
5.1 Landlord's Covenants .........................15
5.2 Interruptions ................................15
ARTICLE VI
TENANT'S COVENANTS ..............................................16
6.1 Tenant's Covenants ............................16
ARTICLE VII
CASUALTY AND TAKING .............................................22
7.1 Casualty and Taking ...........................22
7.2 Reservation of Award ..........................24
ARTICLE VIII
RIGHTS OF MORTGAGE ..............................................24
8.1 Superiority of Leas ...............................24
8.2 No Prepayment Payment ............................25
8.3 No Release or Termination ........................25
8.4 No Modification, et ..............................26
8.5 Continuing Offer .................................26
8.6 Subordination ....................................26
8.7 Implementation ...................................26
ARTICLE IX
DEFAULTS........................................................27
9.1Events of Default .............................27
9.2 Remedies .....................................28
ARTICLE X
MISCELLANEOUS ..................................................29
10.1 Intentionally Deleted .......................29
10.2 Titles ......................................29
10.3 Notice of Lease .............................30
10.4 Holding Over ................................30
10.5 Notice .....................................30
10.6 Bind and Inure ..............................30
10.7 No Surrender ................................31
10.8 No Waiver, Etc ..............................31
10.9 No Accord and Satisfaction ..................31
10.10 Cumulative Remedies ........................31
10.11 Partial Invalidity and Applicable Law ......32
10.12 Landlord's Right to Cure Tenant's Default ..32
10.13 Estoppel Certificates ......................32
10.14 Waiver of Subrogation ............ 33
10.15 Brokerage ........................... 33
10.16 Force Majeure ....................... 33
10.17 Authority ........................... 34
10.18 Parking ............................. 34
10.19 Building Directory .................. 34
10.20 Tenant's Right to Cure .............. 35
10.21 Certain Other Matters ............... 35
10.22 Prior Lease ......................... ▇▇
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AMENDED AND RESTATED LEASE
dated as of January 1, 1998
ARTICLE I
REFERENCE DATA
1.1......Subjects referred to:
Each reference in this Amended and Restated Lease (this "Lease") to any
of the following subjects shall be construed to incorporate the data stated for
that subject in this Section 1. 1:
Landlord:......... One Memorial Drive Limited Partnership, a
Massachusetts limited partnership
Original Address
of Landlord:...... One Memorial Drive
......... ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Landlord's
Construction
Representative:... ▇▇▇▇▇ ▇. ▇▇▇▇▇
Tenant: ......... Putnam, Hayes & ▇▇▇▇▇▇▇▇, Incorporated
Original Address of
Tenant: ......... One Memorial Drive
......... ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tenant's
Construction
Representative:... ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tenant's Space: 55,763 rentable square feet ("p.s.f.") of the building
(the "Building") located on the land more particularly described in
Exhibit A attached hereto consisting of 21,422 p.s.f. on Floor 15;
20,986 p.s.f. on Floor 16; and 13,355 p.s.f. on Floor 17. As used in
this Lease, all p.s.f. figures include proportionate shares of all
common areas of the Building. A plan showing the Tenant's Space the
"Premises") is attached hereto as Exhibit B.
Total Rentable
Floor Area of the
Building:......... 351,680 p.s.f.
Term: ......... Eleven (11) years, eleven (11) months.
Term Commencement
Date: ......... January 1, 1998.
Rent Commencement
Date: ......... January 1, 1998.
Term Expiration Date: November 30, 2009.
Annual Fixed Rent: See chart below:
Rental Period..... Annual Base Rent Monthly Base Rent P/S/F
1/1/98 - 11/30/99 $2,230,520.00 $185,876.77 $40.00
12/1/99 - 11/30/04 $2,174,757.00 $181,229.75 $39.00
12/1/04 - 11/30/09 $2,453,572.00 $204,464.33 $44.00
Extension Options: Tenant may elect to extend the Term hereof for up
to two (2) Additional Terms of five (5) years each, subject to the
provisions of Section 2.5.
Tenant's Included
Share of Real
Estate Taxes:
(i) For the period commencing on January 1, 1998 and continuing
through November 30, 1999, $3.00 per p.s.f. of the Premises.
(ii) For the period commencing on December 1, 1999 and continuing
through November 30, 2009, $5.50 per p.s.f. of the Premises.
Tenant's Included
Share of Operating
Expenses: (i) For the period commencing on January 1, 1998 and
continuing through November 30, 1999, $4.50 p.s.f. of the Premises.
(ii) For the period commencing on December
1, 1999 and continuing through November 30,
2009, $5.60 per p.s.f. of the Premises.
Permitted Uses: General business office use.
Parking Spaces: As provided in Section 10.18, up to fifty-six (56)
spaces in the garage serving the Building. The monthly fee for each
such parking space shall be at such rates as shall be set forth in
Section 10. 18.
1.2 Exhibits.
The Exhibits listed below in this section are incorporated in the Lease
by reference and are to be construed as part of this Lease:
Exhibit A - Legal Description of the Land.
Exhibit B - Plan Showing Tenant's Space.
Exhibit C - Determination of Fair Rental Value
Exhibit D - Intentionally Deleted.
Exhibit E - Intentionally Deleted.
Exhibit F - Intentionally Deleted.
Exhibit G - Landlord's Services.
Exhibit H - Rules and Regulations.
ARTICLE II
PREMISES AND TERM
2.1 Premises.
Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, for the Term, subject to and with the benefit of the provisions of
this Lease, Tenant's Space in the building (the "Building") located on the land
described in Exhibit A attached hereto, excluding exterior faces of exterior
walls, the common stairways, stairwells, elevators and elevator ▇▇▇▇▇, and
pipes, ducts, conduits, wire and appurtenant fixtures serving exclusively or in
common other parts of the Building, and if Tenant's Space includes less than the
entire rentable area of any floor, excluding the central core area of such
floor. Tenant's Space, with said exclusions, is hereinafter sometimes referred
to as the "Premises".
2.2 Common Facilities.
Tenant shall have, as appurtenant to the Premises, the right to use in
common with others entitled thereto, subject to rules of general applicability
to tenants of the Building from time to time made by Landlord of which Tenant is
given notice: (a) the common facilities in the Building or on the land on which
it is located (the "Land"), including common walkways, driveways, lobbies,
hallways, ramps, stairways, elevators and loading platforms; (b) the common
pipes, ducts, conduits, wires and appurtenant equipment serving the Premises;
and (c) if the Premises include less than the entire rentable area of any floor,
the common toilets and other common facilities.
2.3 Landlord's Reservations.
Upon reasonable prior notice (except in the event of emergency constituting an
imminent threat to persons or property), Landlord reserves the right from time
to time, without unreasonable interference with Tenant's Permitted Uses, to
install, repair, replace, use, maintain and relocate for service to the Premises
and to other parts of the Building, pipes, ducts, conduits, wires and
appurtenant fixtures wherever located in the Building, and to alter or relocate
any other common facility, provided that the substitutions are substantially
equivalent or better. Installations, replacements and relocations referred to in
this Section 2.3 shall be located in the central core area, above ceiling
surfaces, below floor surfaces or within the perimeter walls of the Premises to
the extent practicable, and in all events shall not materially reduce rentable
area or floor to ceiling height. Except to the extent required by emergencies,
Landlord will use reasonable efforts to perform all such work at such times and
in such manner as will minimize any disruption of the conduct of Tenant's
business.
2.4 Term.
To have and to hold the Premises for a period commencing with the
Commencement Date, and continuing for the Term unless sooner terminated as
provided elsewhere in this Lease.
2.5 Additional Terms.
Provided that Tenant is not then in default after any applicable grace
periods (a) in the payment of the Annual Fixed Rent, or Additional Rent, or (b)
of any other obligation of Tenant under this Lease, pursuant to any outstanding
notice thereof referred to in Section 9. 1, Tenant shall have the right to
extend the Term hereof for up to two (2) successive periods of five (5) years
each, such options to extend to be exercised by the giving of notice by Tenant
to Landlord at least twelve (12) months prior to the expiration of the then
current term. Upon the giving of each such notice, this Lease and the Term
hereof shall be extended, for an additional term of five (5) years, without the
necessity for the execution of any additional documents. Time is of the essence
in the giving of such notice. In no event shall the Term hereof be extended for
more than ten (10) years after the expiration of the Initial Term, nor shall
Tenant have the right to exercise succeeding extension options unless it has
duly and validly exercised the extension option next preceding the extension
option being currently exercised by Tenant. The Extension Term shall be upon all
the terms, conditions and provisions of this Lease except that the Annual Fixed
Rent during each of the Extension Terms shall be ninety-five percent (95 %) of
the Fair Rental Value (as agreed between the parties or as determined by
appraisal of the Premises for such Extension Term, but in no event less than
$44.00 p.s.f. for all floors, which, if not agreed upon by Landlord and Tenant
within three (3) months of the date on which the applicable Extension Term is to
commence, shall be determined by appraisal as provided in Section 2.7.
Notwithstanding the foregoing, Tenant may advance said three (3) months period
to a fifteen (15) month period upon written notice to Landlord prior to the
commencement of such fifteen (15) month period to the end that any rental to be
determined by appraisal shall have been determined and made known to Tenant
prior to the last date on which Tenant is required to give notice of its
intention to exercise its next arising extension option. For purposes of Section
2.7, the day following expiration of the Original Term or an immediately
preceding Extension Term shall be deemed the relevant Available Date.
2.6 Determination of Fair Rental Value.
In the event the Fair Rental Value of the Premises during any
Additional Term must be determined by appraisal, the determination of Fair
Rental Value shall be made as provided in Exhibit C hereto.
ARTICLE III
CONSTRUCTION
3.1 Intentionally Deleted.
3.2 Tenant Changes and Additions.
Tenant may, from time to time after commencement of the Term, make changes and
additions to the Premises in accordance with plans and specifications therefor
first approved by Landlord. Non-structural changes within the Premises costing
$25,000.00 or less in any one instance and aggregating no more than $200,000.00
during the entire term hereof may be made by Tenant without the need for
Landlord's approval; however, in any such instance Tenant shall give written
notice thereof to Landlord prior to commencing any such change and otherwise
shall be bound by the remaining provisions hereof. Tenant shall have the right
to make structural changes to the Premises with the written consent of the
Landlord which shall ,not be unreasonably withheld or delayed. No structural
change of any nature may be made, however, if the same affects the appearance of
the Building aesthetically; is visible from outside the Building; materially and
adversely affects the operation of the Building or the rights of other tenants
thereof; adversely affects any structural member of the Building; and unless
notice of such intended change together with a complete set of plans and
specifications therefor is delivered to the Landlord at least 30 days prior
commencement of the installation of such change. Tenant may make non-structural
changes in excess of the above amounts upon receiving Landlord's prior written
consent, which consent shall not be unreasonably withheld or delayed. Without
limiting Landlord's rights to disapprove any such changes and additions,
Landlord need not approve such plans and specifications if the proposed changes
and additions will require significant expense to readapt the Premises to normal
office use on lease termination (unless Tenant pays such increased costs), or
will increase the cost of insurance or taxes on the Building or of Landlord's
services called for by Section 5.1 or will violate any other provision of this
Lease. All fixtures and all paneling, partitions, railings and like
installations, installed in the Premises at any time, either by Tenant or by
Landlord o n Tenant's behalf, shall, subject to Tenant's right to make
alterations, become the property of Landlord and shall remain upon and be
surrendered with the Premises, unless Landlord grants its permission to the
removal of same, within twenty (20) days after the receipt of written notice
from Tenant requesting such permission. Nothing in this Section shall be
construed to prevent Tenant's removal of trade fixtures, but upon removal of any
such trade fixtures from the Premises or upon removal of other installations as
may be required by Landlord, Tenant shall immediately and at its expense, repair
and restore the Premises to the condition existing prior to installation and
repair any damage to the Premises or the Building due to such removal. All
property permitted or required to be removed by Tenant at the end of the term
remaining in the Premises after Tenant's removal shall be deemed abandoned and
may, at the election of Landlord, either be retained as Landlord's property or
may be removed from the Premises by Landlord at Tenant's expense. All of
Tenant's changes and additions shall be coordinated with any work being
performed by Landlord and in such manner as to maintain harmonious labor
relations and not to damage the Building or Land or interfere with Building
operation, and shall be performed by Landlord's general contractor or by
contractors or workmen first approved by Landlord which approval shall not be
unreasonably withheld or delayed. Except with respect to work by Landlord's
general contractor, Tenant, before its work is started, shall: secure all
licenses and permits necessary therefor; deliver to Landlord a statement of the
names of all its contractors and subcontractors and the estimated cost of all
labor and material to be furnished by them; cause each contractor to carry
workmen's compensation insurance in statutory amounts covering all of the
contractor's and subcontractor's employees, commercial general liability
insurance, including broad form property damage and contractual liability with
the following minimum limits: general aggregate $2,000,000, Products/completed
operations aggregate $2,000,000, each occurrence $1,000,000, personal &
advertising injury $1,000,000 and medical payments $5,000 per person. In
addition Tenant shall cause each contractor and subcontractor to carry
employer's liability insurance covering bodily injury by disease with such limit
not less than $1,000,000 for each person and a 1,000,000 policy limit, bodily
injury by accident with limits of not less than $1,000,000; automobile liability
insurance with a combined single limit of not less than $1,000,000 which shall
cover all owned, non-owned and hired motor vehicles which are operated on behalf
of the contractor and/or subcontractor, and an umbrella/excess liability policy
with minimum limits of $5,000,000 in the aggregate and $5,000,000 per
occurrence. All policies shall be written by companies rated not less than A -
VIII by Best's Insurance Reports (all such insurance to name Landlord, Tenant
and any mortgagee o f Landlord as additional insureds) and contain a minimum of
thirty (30) days notice of cancellation. Tenant shall deliver or cause to be
delivered to Landlord certificates of all such insurance prior to the
commencement of any work on the Premises and shall provide upon Landlord's
request certified copies of the insurance policies. Tenant agrees to pay
promptly when due the entire cost of any work done on the Premises by, or on
behalf of Tenant, and not to cause or permit any liens for labor or materials
performed or furnished in connection therewith to attach to the Premises, the
Building or any interest of Landlord therein. Tenant agrees promptly upon notice
or knowledge thereof to discharge or bond over any such liens which may so
attach in accordance with Section 6.1.13 hereof, and agrees to indemnify
Landlord for, from and against any and all loss, cost or expense (including, but
not limited to, reasonable attorneys'. fees and costs) incurred by Landlord as a
result of Tenant's work. The payment by Landlord of Landlord's Contribution (as
defined in Section 3.3 below) shall not be construed as a "cost or expense" from
which Tenant must indemnify Landlord pursuant to the preceding sentence.
Each contractor and subcontractor must agree in their respective
contracts to defend, save, indemnify and hold harmless Landlord, its
subsidiaries, officers, agents and employees from any and all claims, demands,
damages, losses, costs, expenses, judgements, or liabilities arising out of or
resulting from the relevant contractor, contractor's employees, agents,
performance of its work in, on or about the Premises. Such contracts must also
contain a mutual waiver of subrogation to the effect that the Landlord,
contractors and subcontractors waive all rights against each other, any of their
agents and employees for damages caused by fire or any other perils covered by a
standard special causes of loss form property policy. All property insurance
policies shall contain a waiver of subrogation by endorsement or otherwise, and
the aforesaid contracts shall provide that Landlord agrees, and the contractor
and its subcontractors will have agreed in their contracts as aforesaid that
property insurance represents the sole recourse for loss or damage to property
and each will have waived rights to recover for property damage from each other.
3.3 Landlord's Construction Contribution. Landlord agrees to pay up to the sum
of Six Hundred Thousand Dollars ($600,000.00) ("Landlord's Contribution") to
Tenant to reimburse Tenant, in part, for the cost of improvements made to the
Premises after the date hereof, including, but not limited to, soft costs
incurred such as architectural design fees, other professional fees and cabling
costs. Fifty percent (50%) (the "First Fifty Percent") of the Landlord's
Contribution shall be made available to Tenant on or after January 1, 1998 and
must be requisitioned by Tenant on or prior to December 31, 2000. The remaining
fifty percent (50%) (the "Second Fifty Percent") of the Landlord's Contribution
shall be made available to Tenant on or after December 1, 1999 and must be
requisitioned by Tenant on or prior to December 31, 2003. For the overlapping
time period from December 1, 1999 until December 31, 2000, Tenant shall first
requisition contributions available from the First Fifty Percent, but if the
First Fifty Percent has been fully requisitioned by Tenant, the Second Fifty
Percent shall be available to Tenant. Each request for an advance of Landlord's
Contribution (a "Requisition") submitted by Tenant to Landlord shall be made no
more frequently than once in any calendar month, shall bear the certification of
Tenant's architect as to the nature of the portion of the Tenant Improvements
installed and the amount actually disbursed by Tenant thereagainst. Each such
Requisition shall be accompanied by copies of partial lien waivers or final lien
waivers (in the case of the final installment) from all contractors and
subcontractors, shall be in such detail and contain such supporting
documentation as Landlord reasonably may require and shall be subject to the
approval of Landlord and/or its professional consultants acting reasonably.
Within twenty-five (25) days of the receipt of each Requisition, Landlord shall
disburse to Tenant a sum equal to ninety percent (90%) of the amount set forth
therein, the remaining ten percent (10%) of each Requisition to be disbursed
only upon full completion of the Tenant Improvements with respect to which such
portions of Landlord's Contribution is being applied (including all "punch list"
items), provided that Landlord is reasonably satisfied that such Tenant
Improvements have been constructed in accordance with Tenant's Plans and upon
the reasonable satisfaction of Landlord that no mechanics or other liens
relating to such Tenant Improvements will thereafter arise against the Land, the
Building or the Premises. At Landlord's election, payments under any Requisition
may be made jointly to Tenant and Tenant's general contractor in such manner
(such as joint payees on a check), as to require acknowledgment of receipt of
the amount of such payment by both parties.
3.4 General Provisions Applicable to Construction.
All construction work required or permitted by this Lease, whether by
Landlord or by Tenant, shall be done in a good and workmanlike manner and in
compliance with all applicable laws and all lawful ordinances, regulations and
orders of governmental authority and insurance industry standards, and meet or
exceed the building standard, as same may change from time to time.
3.5 Construction Representatives.
Each party authorizes the other to rely in connection with the original
design and construction upon a written approval on the party's behalf by any
Construction Representative of the party named in Article I above or any person
hereafter designated in substitution or addition by notice to the party relying.
ARTICLE IV
RENT
4.1 Fixed Rent.
Tenant agrees to pay, without any offset or deduction whatever except
only, to the extent applicable, as specifically provided pursuant to the
provisions of Articles III, V and VII hereof, Annual Fixed Rent to Landlord at
the appropriate rate set forth in Section 1. 1 hereof, in equal installments of
1/12th of the Annual Fixed Rent in advance on the first day of each calendar
month included in the Term, commencing on the Rent Commencement Date and for any
portion of a calendar month at the beginning or end of the Term, at that rate
payable in advance for such portion. Tenant shall pay all rent when due; and no
invoice for rent due or to become due or notice of rent past due shall be
required.
4.2 Additional Rent.
4.2.1 Taxes.
Tenant shall pay to Landlord as additional rent a proportionate share
(as defined in Section 4.2.4) of all real estate taxes (as defined in Section
4.2.2) imposed against the Building and the Land attributable to the period
commencing twelve (12) months after the Term Commencement Date, prorated with
respect to any portion of a fiscal year in which the first anniversary of the
Term of this Lease occurs or the Tenn ends. Such payments shall be due and
payable ten (10) days after notice is given to Tenant by Landlord, which notice
is intended to be given during the period thirty (30) days just prior to the due
date of each half fiscal year's taxes. If Landlord shall receive any refund of
real estate taxes of which Tenant has paid a portion pursuant to this Section,
then, out of any balance remaining after deducting Landlord's expenses incurred
in obtaining such refund, Landlord shall pay to Tenant the same proportionate
share of said balance, prorated as set forth above. Tenant shall with each
monthly installment of Annual Fixed Rent, make tax fund payments to Landlord.
The term "tax fund payments refers to such payments as Landlord shall reasonably
determine to be sufficient to provide in the aggregate a fund adequate to pay,
when they become due and payable, all payments required from Tenant under this
Section. In the event that said tax fund payments are not adequate to pay
Tenant's share of such taxes, Tenant shall pay to Landlord the amount by which
such aggregate of tax fund payments is less than the amount of said share, such
payment to be due and payable at the time set forth above. Any surplus tax fund
payment to Landlord shall be accounted for to Tenant after payment by Landlord
of the taxes on account of which they were made, and shall be credited by
Landlord against future tax fund payments except that if such surplus tax fund
payment exceeds $1,500.00, it shall, on Tenant's demand, be refunded to Tenant.
If such surplus fund payment exceeds the amount that should have been paid by
more than ten percent (10 %), Landlord shall pay to, or credit Tenant (as the
case may be) with interest on such surplus at an annual rate of interest equal
to two percent (2 %) greater than the prime rate of interest, so-called, of
BankBoston, N.A. in effect at the time. Subject to the provisions of this
Section, Landlord shall be responsible for payment of all real estate taxes (as
hereinabove defined) imposed against the Building and the Land. If the size of
the Building changes, the same shall be equitably reflected hereunder.
4.2.2 Real Estate Taxes.
The term "real estate taxes" as used herein shall mean all real estate
taxes, assessments, and other governmental impositions and charges of every kind
and nature whatsoever not included in Operating Expenses, extraordinary as well
as ordinary, foreseen and unforeseen, and each and every installment thereof,
which shall or may during the Term as it may be extended be assessed, imposed,
become due and payable or be levied by the lawful taxing authorities against the
Land, the Building, and all other improvements located on the Land
(collectively, the "Property") or liens upon or arising in connection with the
use or occupancy or possession of, or becoming due or payable out of or for, the
Property or any part thereof, including all costs and fees incurred by Landlord
in contesting same or in negotiating with the appropriate governmental
authorities as to the same. Betterments and other charges payable over a period
in excess of one year shall with the interest charges thereon be treated as
being paid over the longest possible period.
Except to the extent the same are generally considered to be in lieu of
real estate taxes, nothing herein contained shall be construed to include as a
real estate tax any inheritance, estate, succession, transfer, gift, franchise,
corporation, income or profit tax or capital levy that is or may be imposed upon
Landlord; provided, however, that, if at any time during the Term as it may be
extended the methods of taxation prevailing at the Term Commencement Date shall
be altered so that in lieu of or as a substitute for the whole or any part of
the taxes now levied, assessed or imposed, there shall be levied, assessed or
imposed an income or other tax of whatever nature, then the same shall be
included in the computation of real estate taxes hereunder.
Real estate taxes shall include any excise, transaction, sales or
privilege tax now or hereafter imposed by any government or governmental agency
upon Landlord on account of, attributed to, or measured by rent or other charges
payable by Tenant, or levied by reason of the parking made available by Landlord
on the Property, and shall be repaid by Tenant to Landlord in addition to and
together with the Rent and other charges otherwise payable hereunder; provided,
that any tax levied by reason of the parking shall be apportioned so that Tenant
shall reimburse Landlord for that portion of such parking tax in proportion to
the number of parking spaces provided to Tenant under subparagraph 10. 18
hereof.
4.2.3 Operating Expenses.
Tenant shall pay to Landlord as additional rent a proportionate share
(as defined in Section 4.2.4) of all costs and expenses incurred by Landlord
from and after the period commencing twelve (12) months after the Tenn
Commencement Date in the operation and maintenance of the Building and the Land
in accordance with generally accepted operational and maintenance procedures
(but applied in a manner consistent with generally accepted accounting
principals consistently applied), including, without limiting the generality of
the foregoing, all such costs and expenses in connection with (1) insurance,
(including without limitation rent insurance), license fees, janitorial service,
landscaping, and snow removal, (2) wages, salaries, management fees (which shall
be comparable to those fees for similar buildings), employee benefits, payroll
taxes, on-site office expenses, administrative and auditing expenses,
professional fees (including, without limitation, legal, accounting and
consulting fees but excluding legal fees relating to disputes with tenants and
excluding consulting fees not relating to the efficient operation of the
Building), and equipment and materials for the operation, management, and
maintenance of said Property, (3) the furnishing of heat, air conditioning,
utilities, and any other service to the extent to which Landlord is not entitled
to be reimbursed by tenants, (4) water and sewer rents, and (5) expenses
incurred in complying with all zoning and fire regulations as they may apply to
the Property (except for structural changes and capital expenditures) (the
foregoing being hereinafter referred to as "operating expenses"). The following
shall be excluded from the definition of operating expenses:
(a) costs of special services rendered to
tenants for which a separate charge is made
or which is not an obligation of Landlord
under this Lease;
(b) costs incurred for the exclusive benefit of a specific tenant or
group of tenants or of a space occupied by Landlord;
(c) salaries of officers and executives of Landlord not connected with
the operation of the Property;
(d) any costs incurred by the negligent acts or omissions of Landlord,
its agents or employees;
(e) leasing fees or commissions and advertising costs;
(f) interest, mortgage charges, taxes,
depreciation, ground rent and capital
expenditures (including (as part of such
exclusion) amortization of the costs and the
cost of the financing thereof);
(g) costs of reconstruction or other work
incurred in connection with any fire or
other casualty insured or required to be
insured against hereunder;
(h) the cost of repair of damage caused by third
parties if reimbursement is received
therefor, Landlord agreeing to use
reasonable efforts to collect the same; if
such damage is caused by a tenant (other
than Tenant) which Landlord, acting
reasonably, has been able to identify, then
such cost shall not be included in this
subsection h, of this Lease;
(i) expenses related to parking operations associated with the Building other
than after hours security;
(j) the cost of installing, operating and
maintaining any specialty service, such as
an observatory, broadcasting facility,
luncheon club, retail store, sundry shop,
newsstand, concession, or athletic or
recreational club;
(k) the cost of correcting defects in base building construction (i.e. excluding
normal maintenance and repair expenses);
(1) insurance premiums to the extent any
tenant's particular use causes Landlord's
existing insurance premiums to increase or
require Landlord to purchase additional
insurance;
(m) any advertising or promotional expenses and objects of art;
(n) any costs representing an amount paid to an
entity related to Landlord which is in
excess of the amount which would have been
paid in the absence of such relationship;
(o) payments for rented equipment, the cost of
which equipment would constitute a capital
expenditure if the equipment were purchased;
(p) costs incurred due to violation by Landlord
or any tenant of the Building of any lease
or any laws, rules, regulations or
ordinances applicable to the Building;
(q) any expenditure which due to warranty, was
not made, or for which Landlord was
reimbursed, in the year establishing the
base amount of operating expenses; and
(r) Expenditures for capital items other than an
amount equal on a per annum basis to the
operating expenses that would have been
incurred for such period absent the
installation of any such capital item.
Operating expenses shall be reduced by the amount of insurance
proceeds, reimbursements, discounts or allowances received by Landlord in
connection with such costs.
As soon as Tenant's share of operating expenses with respect to any calendar
year can be determined, a statement of Tenant's share will be sent to Tenant at
which time said amount shall become payable to Landlord within thirty (30) days
following the date of said statement, subject to proration with respect to any
portion of a calendar year in which the Term of this Lease begins or ends.
Landlord's records of operating expenses with respect to each calendar year
shall be available for inspection by Tenant for six (6) months following
delivery by Landlord of its statements of operating, expenses for such year.
Tenant may, at reasonable time and after notice to Landlord, inspect all
invoices and other supporting material relevant to the computation of said
operating expenses. Tenant shall with each monthly installment of Annual Fixed
Rent, make operating fund payments to Landlord. The term "operating fund
payments" shall refer to such payments as Landlord shall reasonably determine to
be sufficient to provide in the aggregate a fund adequate to pay, when they
become due and payable, all payments required from Tenant under this Section. In
calculating operating fund payments, Landlord shall take into account the
operating expenses incurred in the previous year. In the event that the
aggregate of said operating fund payments is not adequate to pay Tenant's share
of operating expenses, Tenant shall pay to Landlord the amount by which such
aggregate is less than the amount of said share, such payment to be due and
payable at the time set forth above. Any surplus operating fund payments shall
be accounted for to Tenant after such surplus has been determined, and shall be
credited by Landlord against future operating fund payments except that if such
surplus operating fund payment exceeds $1,500.00, it shall on Tenant's demand be
refunded to Tenant. If such surplus fund payment exceeds the amount that should
have been paid by more than ten percent (10%), Landlord shall pay to, or credit
Tenant (as the case may be) with interest on such surplus at an annual rate of
interest equal to two percent (2%) greater than the prime rate of interest,
so-called, of the BankBoston, N.A., in effect at the time. In the event of a
dispute between Landlord and Tenant as to the propriety in the amount or nature
of any operating expense Landlord has requested Tenant to. pay, Tenant shall pay
the same at the time called for hereunder as if the same were properly due, but
upon notice from Tenant to Landlord, the matter shall be submitted to
arbitration in a manner reasonably consistent with the provisions of Exhibit C,
hereto.
4.2.4 Tenant's Proportionate Share.
Tenant's proportionate share of taxes payable pursuant to Section 4.2.1
shall be the excess of real estate taxes allocable to the Premises over Tenant's
Included Share of Real Estate Taxes, where real estate taxes allocable to the
Premises means the real estate taxes for the Property multiplied by a fraction,
the numerator of which is the number of p.s.f. of the Premises, and the
denominator of which is the number of p.s.f. in the Total Rentable Floor Area of
the Building. Tenant's proportionate share of operating expenses payable
pursuant to Section 4.2.3 shall be the excess of operating expenses allocable to
the Premises over Tenant's Included Share of Operating Expenses, where operating
expenses allocable to the Premises means the operating expenses for the Property
multiplied by a fraction, the numerator of which is the number of p.s.f. of the
Premises and the denominator of which is the number of p.s.f. in the Total
Rentable Floor Area of the Building.
Reference is hereby made to that portion of Article I of this Lease
which defines Tenant's Included Share of Real Estate Taxes and Tenant's Included
Share of Operating Expenses for the purposes of the calculations called for in
this Paragraph 4.2.4:
(a) For the period commencing January 1,
1998 and continuing through November 30, 1999, to the extent
that the operating expenses allocable to the Premises amount
to less than $4.50 per p.s.f., the amount of such difference
shall be added to the $3.00 per p.s.f. figure of Tenant's
Included Share of Real Estate Taxes. Thus by way of
hypothetical example, if during any period within the Term of
this Lease the operating expenses allocable to the Premises
are $4.15 per p.s.f., then during the period during which said
$4.15 per p.s.f. figure is applicable, Tenant's Included Share
of Real Estate Taxes shall be treated as if it were $3.35 per
p.s.f.; and
(b) For the period commencing December 1,
1999 and continuing through November 30, 2009, to the extent
that the operating expenses allocable to the Premises amount
to less than $5.60 per p.s.f., the amount of such difference
shall be added to the $5.50 per p.s.f. figure of Tenant's
Included Share of Real Estate Taxes. Thus by way of
hypothetical example, if during any period within the Term of
this Lease the operating expenses allocable to the Premises
are $5.00 per p.s.f., then during the period during which said
$5.00 per p.s.f. figure is applicable, Tenant's Included Share
of Real Estate Taxes shall be treated as if it were $6.10 per
p.s.f.; and
(c) For the period commencing January 1,
1998 and continuing through November 30, 1999, to the extent
that the real estate taxes allocable to the Premises amount to
less than $3.00 per p.s.f., the amount of such difference
shall be added to the $4.50 per p.s.f. figure of Tenant's
Included Share of Operating Expenses. Thus by way of
hypothetical example, if the real estate taxes allocable to
the Premises are $2.70 per p.s.f., then during the period
during which said $2.70 per p.s.f. figure is applicable,
Tenant's Included Share of Operating Expenses shall be treated
as if it were $4.80 per p.s.f., and
(d) For the period commencing December 1,
1999 and continuing through November 30, 2009, to the extent
that the real estate taxes allocable to the Premises amount to
less than $5.50 per p.s.f., the amount of such difference
shall be added to the $5.60 per p.s.f. figure of Tenant's
Included Share of Operating Expenses. Thus by way of
hypothetical example, if the real estate taxes allocable to
the Premises are $5.25 per p.s.f., then during the period
during which said $5.25 per p.s.f. figure is applicable,
Tenant's Included Share of Operating Expenses shall be treated
as if it were $5.85 per p.s.f.
Notwithstanding the forgoing, at no time during the term of this Lease
shall Tenant's Included Share of Real Estate Taxes and Tenant's Included Share
of Operating Expenses, taken together, exceed the aggregate figure of $7.50 per
p.s.f. of the Premises for the period commencing January 1, 1998 and continuing
through November 30, 1999, and $11. 10 for the period commencing December 1,
1999 and continuing through November 30, 2009.
4.2.5 Tenant's Electricity Usage.
Tenant shall utilize metered electricity directly from the public
utility providing such to Tenant's Space ("Tenant's Electricity") for Tenant's
use for all purposes for which Tenant uses electricity including lighting,
electrical outlets and "HVAC", so-called. Landlord shall allow its vaults,
wires, risers and conduits to be used by Tenant, acting reasonably, for such
purposes. Such facilities shall be stubbed to a central service area on each
floor. Tenant shall pay the cost of the same directly to such utility. Landlord
shall furnish electricity for use in common areas, Tenant's use of which, if
consumed during other than normal Building Hours (as defined in Exhibit G), and
to the extent of what otherwise would have been supplied (and then only upon
request of Tenant may be separately charged to Tenant, provided that such
charges shall be fairly allocated among all tenants using such electricity.
Tenant shall not, without Landlord's prior consent in each instance, connect
anything to the Building's electric system which would constitute a use
inconsistent with the electrical system servicing the Premises. Should Landlord
grant such consent, all additional risers or other equipment therefor shall be
provided by Landlord at the Tenant's expense. Landlord shall make arrangements
regarding replacement of lighting tubes, lamps, bulbs and ballasts for Tenant's
Space at Tenant's expense, -but to be billed to Tenant at Landlord's cost,
reasonably calculated.
ARTICLE V
LANDLORD'S COVENANTS
5.1 Landlord's Covenants.
Landlord covenants:
5. 1. 1 to furnish, through Landlord's
employees or independent contractors, the services listed in
Exhibit G, all of the same to be equivalent to those
customarily supplied to first class office buildings in the
Boston and Cambridge areas.
5.1.2 except as otherwise provided with
respect to Landlord's Building restoration obligations set
forth in Article VII, to make such repairs to the roof,
structural elements,
foundation, insulation, caulking, exterior walls and glass, floor slabs and all
parts of the common areas and facilities of the Building, Garage, and
landscaping as may be necessary to keep them in condition suitable for a
first-class office building.
5.1.3 that Landlord has the right to make this Lease and that
Tenant, on paying the rent and performing its obligations in this Lease, shall
peacefully and quietly have, hold and enjoy the Premises throughout the Term,
subject to all terms and provisions hereof.
5.1.4 to keep the Property free of liens for unpaid real
estate taxes and to the extent required by the terms of this Lease to maintain
insurance on the common areas.
5.2 Interruptions.
Landlord shall not be liable to Tenant for any compensation or
reduction of rent by reason of inconvenience or annoyance or for loss of
business arising from power and other utility losses and shortages, the
necessity of Landlord's entering the Premises for any of the purposes in this
Lease authorized, or for repairing the Premises or any portion of the Property
however the necessity may occur. In case Landlord is prevented or delayed from
making any repairs, alterations or improvements, or furnishing any services or
performing any other covenant or duty to be performed on Landlord's part, by
reason of any cause reasonably beyond Landlord's control, Landlord shall not be
liable to Tenant therefor, nor, except as expressly otherwise provided in
Section 7. 1, shall Tenant be entitled to any abatement or reduction of rent by
reason thereof, nor shall the same give rise to a claim in Tenant's favor that
such failure constitutes actual or constructive, total or partial, eviction from
the Premises.
Upon reasonable prior notice (except in the event of emergency
constituting an imminent threat to persons or property), Landlord reserves the
right to stop any service or utility system, when necessary by reason of
accident or emergency, or until necessary repairs have been completed, provided,
however, that in each instance of stoppage or interruption, Landlord shall
exercise reasonable diligence to minimize any inconvenience to Tenant.
The foregoing provisions hereof to the contrary notwithstanding, in the
event any power or other utility failure or service failure (other than office
cleaning) which is an obligation of Landlord under this Lease (including failure
of elevator service and failure to repair any structural element of the Building
which Landlord is obligated to repair hereunder) results in Tenant's inability
to conduct its business on the Premises substantially as permitted hereunder
(herein, a "Shutdown"), and in the event such Shutdown continues for more than
fifteen business days or for more than five consecutive business days (in each
case) in any calendar year, then the Annual Fixed Rent hereunder shall be abated
for each additional business day in such calendar year during which such
Shutdown continues. Further, if a Shutdown continues for twelve consecutive
months, Tenant shall have the right thereafter, by written notice given to
Landlord while such Shutdown continues, to terminate this Lease.
ARTICLE VI
TENANT'S COVENANTS
6.1 Tenant's Covenants.
Tenant covenants, and with respect to the provisions of Subsection
6.1.3, below, Landlord covenants, during the Term and such further time as
Tenant occupies any part of the Premises:
6.1.1 to pay when due all fixed rent and
additional rent; a late charge of two percent (2%) on all
fixed and additional rent not paid within three (3) days of
the date written notice is given to Tenant that such rent has
not been paid, which notice shall not be given earlier than
five (5) days after the day such rent is due; all taxes which
may be imposed on Tenant's personal property on the Premises
(including without limitation, Tenant's fixtures and
equipment) regardless to whomever assessed, and to the extent
the nonpayment of the same would be a lien on any property, or
an obligation of the Landlord, all charges by Landlord or
public utilities for electricity, telephone, and gas services
and service inspections therefor, and all charges by public
utilities for installation of metering devices (which charges
shall be apportioned on a floor area basis for multi-tenanted
floors). Any charge by Landlord in connection with the
provision of utilities or the servicing thereof shall be at
the cost billed to Landlord for the same;
6.1.2 except as otherwise provided in
Article VII and Sections 5. 1. 1 and 5.1.2, to keep the
Premises, including all interior glass, clean and in good
order, repair and condition, reasonable wear and damage by
fire and casualty only excepted, and at the expiration or
termination of this Lease peaceably to yield up the Premises
and all changes and additions therein in such order, repair
and condition, first removing all goods, effects, and fixtures
of Tenant and any items the removal of which is required by
any agreement given pursuant to Sections 3.1 or 3.2 hereof, or
specified therein to be removed at Tenant's election and which
Tenant elects to remove, and repairing all damage caused by
such removal and restoring the Premises and leaving them clean
and neat;
6.1.3 not to injure or deface the Premises,
Building, Land, or Property, nor to permit in the Premises any
auction sale, or nuisance, or the emission from the Premises
of any objectionable noise or odor, nor to commit or permit
any waste in or with respect to the Premises, nor to use or
devote the Premises or any part thereof for any purpose other
than the Permitted Uses, nor any use thereof which is
improper, offensive, contrary to law or ordinance, or liable
to invalidate, or (unless Tenant pays the same, or if caused
by more than one party, its equitable share thereof) increase
the premiums for, any insurance on the Building or the
Property or its contents or liable to render necessary any
alteration or addition to the Building or the Property;
6.1.4 not to obstruct in any manner any
portion of the Building not hereby leased or any portion
thereof or of the Property used by Tenant in common with
others; not without prior consent of Landlord (which consent
shall not be unreasonably withheld or delayed) to permit the
painting or placing of any signs or the placing of any
curtains, blinds, shades, awnings, aerials or flagpoles, or
the like, visible from outside the Premises; and to comply
with the Rules and Regulations set forth in Exhibit H and all
other reasonable Rules and Regulations of general
applicability to all tenants in the Building hereafter made by
Landlord which Landlord shall use reasonable efforts to apply
in a nondiscriminatory manner, of which Tenant has been given
notice. Landlord shall not be liable to Tenant for the failure
of other tenants of the Building to conform to such Rules and
Regulations. In the event of any inconsistency between any of
said Rules and Regulations and the terms of this Lease, the
terms of this Lease shall prevail;
6.1.5 to keep the Premises equipped with all safety appliances required
by law or ordinance or any other regulation of any public authority because of
any use made by Tenant other than the Permitted Uses, and to procure all
licenses and permits so required because of such use and, if requested by
Landlord, to do any work so required because of such use, it being understood
that the foregoing provisions shall not be construed to broaden in any way
Tenant's Permitted Uses;
6.1.6
(a) That in the event Tenant proposes to
assign this Lease or sublet the Premises or any part thereof,
Tenant shall give Landlord written notice thereof sixty (60)
days prior thereto which notice shall specify the date on
which such assignment or subletting is to occur or commence.
Landlord shall then have a period of thirty (30) days
following receipt of such notice within which to notify Tenant
in writing that Landlord elects (1) to terminate this Lease as
to the space so affected as of the date so specified by Tenant
but only for the term so specified in which event Tenant will
be relieved of all further obligations hereunder as to such
space on that date for the term so specified, or (2) to permit
Tenant subject to all the remaining terms and provisions of
this Lease to assign this Lease or sublet such space,
provided, however, that in the case of such later election by
Landlord, such subletting or assignment shall be permitted
only to a party with a general reputation in the business
community comparable to that of Tenant and of comparable
creditworthiness (but, with respect to any subletting, taking
into account the amount of space sublet and the term thereof).
If Landlord shall fail to notify Tenant in writing of such
election within said thirty (30) day period, Landlord shall be
deemed to have elected option (2) above. If Landlord elects to
exercise option (2) above, Tenant agrees to provide at its
expense, reasonable, proper and legal direct access from the
assignment or subleased space to a public corridor of the
Building.
(b) If Landlord consents to any subletting
or assignment by Tenant as hereinabove provided, and
subsequently any rents received by Tenant under any such
sublease are in excess of the rent payable by Tenant under
this lease, or any additional consideration is paid to Tenant
by the assignee under any such assignment, then fifty percent
(50%) of the excess rents (after deduction for actual and
reasonable "out of pocket" cash expenses) under any such
sublease or the additional consideration for any such
assignment shall be due and payable by Tenant to Landlord as
additional rent hereunder when received by Tenant, Tenant
agreeing to use reasonable efforts to collect the same.
(c) Notwithstanding anything to the contrary
contained herein, Tenant shall have the absolute right to
assign its interest in this Lease or sublet the Premises
without Landlord's consent (and in such cases the foregoing
subparagraphs (a) and (b) shall not apply) in connection with
any assignment or sublease to any parent, subsidiary, or other
entity controlled by or under common control with Tenant; any
assignment or sublease occurring by operation of law; and any
assignment or sublease occurring in connection with a sale of
all or substantially all of the assets or capital or common
stock of Tenant or a consolidation or merger of Tenant.
(d) No assignment shall be deemed permitted
hereunder unless Tenant shall deliver to Landlord an
instrument in recordable form which contains a covenant of
assumption by the assignee running to Landlord and all persons
claiming by through or under Landlord, but the failure or
refusal of such assignee to execute such instrument of
assumption shall not release or discharge such assignee from
its liability hereunder nor shall execution of such instrument
of assumption affect the continuing primary liability of
Tenant.
(e) No subletting or assignment of any
nature by Tenant shall relieve Tenant of any obligations under
this I-ease.
(f) Tenant shall have no right to assign
this Lease or sublet all, or any portion of the Premises while
any default exists hereunder beyond any applicable grace
period.
(g) No assignment or sublease of any nature
may be made to any party who then is a tenant or occupant of
the Building unless Landlord, itself, is unable to satisfy the
need of such proposed assignee or sublessee.
In the event of any subletting under this Lease pursuant to the terms
hereof, upon the request of Tenant, Landlord will provide the subtenant
thereunder (the "Subtenant") with an agreement binding upon Landlord providing
that in the event of termination of the Lease by virtue of Tenant's default,
Landlord will continue to recognize and accept the Subtenant as a tenant in the
sublet premises for the term of the Subtenant's (sub) tenancy provided (a) the
terms of such subtenancy are identical to the provisions of the Lease (or at
least no less favorable to Landlord) other than (i) the rental, tax escalation
and operation expense payments and the parking space allocation under the
sublease may be reduced in proportion to the amount of floor space so subleased;
(H) the Subtenant shall have no rights to extend the term of the sublease past
the original term of the Lease or have any rights to expand its premises or take
advantage of any options or first refusal on any space in the Building
(including the space leased under the Lease but not demised under the sublease);
(iii) the term of such sublease shall not commence until after the Commencement
date under the Lease with the result that Tenant shall have no construction
obligations to the Subtenant under paragraph 3.1 of the lease; and (b) the floor
space covered by such sublease shall cover the entire amount (and no less than
the entire amount) of one or more "Sublease Sections" of the Premises as
referred to on Exhibit I hereto;
6.1.7 To the maximum extent this agreement may be made effective
according, damages, losses, injuries or claims of whatever nature arising from
any act, omission or negligence of Tenant, or Tenant's contractors, licensees,
invitees, agents, servants or employees, or arising from any accident, injury or
damage whatsoever caused to any person or property, occurring after the date
that possession of the Premises is first delivered to Tenant and until the end
of the Term and thereafter, in or about the Premises or arising from any
accident, injury or damage occurring outside the Premises but within the
Building, on the Land or with respect to the parking facilities provided
pursuant to the Lease, in each of the foregoing instances where such accident,
injury or damage results, or is claimed to have resulted, from an act or
omission on the part of Tenant or Tenant's agents or employees, licensees,
invitees, servants or contractors. This indemnity and hold harmless agreement
shall include indemnity against all costs, expenses and liabilities incurred or
in connection with any such claim or proceeding brought thereon, and the defense
thereof.
Tenant agrees to maintain in full force from the date upon which Tenant
first enters the Premises for any reason, throughout the Term, and thereafter,
so long as Tenant is in occupancy of any part of the Premises, a policy of
liability insurance more particularly described below in this Section 6.1.7
under which Landlord (and any ground lessor and holder of a mortgage on the
Property of whom Tenant has knowledge) and Tenant are named as insureds, and
under which the insurer provides a contractual liability endorsement insuring
against all cost, expense and liability arising out of or based upon any and all
claims, accidents, injuries and damages described in Section 7. 1, in the
broadest form of such coverage, from time to time available. Each such policy
shall be non-cancelable and non-amendable (to the extent that any proposed
amendment reduces the limits or the scope of the insurance required in this
Lease) with respect to Landlord and such ground lessors and mortgagees without
thirty (30) days' prior written notice to Landlord and such ground lessors and
mortgagees and a duplicate original thereof shall be delivered to Landlord.
Without limitation of the foregoing, the scope of such insurance shall include,
and the minimum limits of liability of such insurance for each year shall be:
commercial general liability insurance, including broad form property damage and
contractual liability: general aggregate $2,000,000, each occurrence $1,000,000,
personal & advertising injury $1,000,000 and medical payments $5,000 per person;
employer's liability insurance covering bodily injury by disease with such limit
not less than $1,000,000 for each person and a 1,000,000 policy limit; bodily
injury by accident with limits of not less than $1,000,000; and an
umbrella/excess liability policy with minimum limits of $5,000,000 in the
aggregate and $5,000,000 per occurrence. All policies shall be written by
companies rated not less than A - VIII by Best's Insurance Reports. Landlord may
from time to time during the Term hereof, require higher limits, if such higher
limits are carried customarily in the Boston-Cambridge area with respect to
similar premises in similar properties, provided such provision is uniformly
enforced within the Building;
6.1.8 To keep all Tenant's employees working
in the Premises covered by workmen's compensation insurance in
statutory amounts and to furnish Landlord with certificates
thereof;
6.1.9 Upon reasonable prior notice other than in the event of
emergency constituting a threat to life or property to permit Landlord and
Landlord's agents to examine the Premises and, if Landlord shall so elect, to
make any repairs or replacements Landlord may deem necessary to avert an
emergency, to remove, at Tenant's expense, any changes, additions, signs,
curtains, blinds, shades, awnings, aerials, flagpoles, or the like, not
consented to in writing (if such consent is required hereunder), and to show the
Premises to prospective tenants during the last twelve (12) months of the Term
or at any time after any notice of termination of this Lease, and to prospective
purchasers and prospective mortgagees at any time during the term of this Lease;
6.1.10 Not to place a load upon the Premises exceeding an
average rate of 50 pounds of live load per square foot of floor area; and not to
move any safe, vault or other heavy equipment in, about or out of the Premises
except in such manner and at such times as Landlord shall in each instance
authorize; Tenant's business machines and mechanical equipment which cause
vibration or noise that may be transmitted to the Building structure or to any
other leased space in the Building shall be placed and maintained by Tenant in
settings of cork, rubber, spring, or other type of vibration eliminators
sufficient to eliminate such vibration or noise;
6.1.11 All the furnishings, fixtures,
equipment, effects and property of every kind, nature and
description of Tenant and of all persons claiming by, through
or under Tenant which, during the continuance of this Lease or
any occupancy of the Premises by Tenant or anyone claiming
under Tenant, may be on the Premises or elsewhere in the
Building, shall be at the sole risk and hazard of Tenant, and
if the whole or any part thereof shall be destroyed or damaged
by fire, water or otherwise, or by the leakage or bursting of
water pipes, steam pipes, or other pipes, by theft or from any
other cause, no part of said loss or damage is to be charged
to or to be borne by Landlord unless caused by the negligence
or willful misconduct of Landlord or its agents or employees;
6.1.12 Not to suffer or permit any liens to
stand against the Premises by reason of work done, labor
services performed or materials provided for or at the request
of Tenant. Tenant shall cause any such liens to be discharged
within thirty (30) days after the date of notice to Tenant or
Tenant's knowledge of the filing thereof, but nothing herein
shall prevent Tenant from contesting any such lien, provided
that Tenant shall first provide a surety bond or other
security therefor satisfactory to Landlord;
6.1.13 In case Landlord or Tenant shall,
without any fault on its part, be made party to any litigation
commenced by or against the other or by or against any parties
in possession of the Premises or any party thereof claiming
under the other, to pay, all costs, including without
limitation, reasonable counsel fees incurred by or imposed
upon the other in connection with such litigation; and also to
pay all such costs and fees incurred by the other in
connection with the successful enforcement by the other of any
obligations of the other under this Lease. Any such payments
due from Tenant shall be deemed Additional Rent under this
Lease; and
6.1.14 Upon the expiration of this Lease or
should this Lease terminate for any cause, and at the time of
such expiration or termination, the Tenant or Tenant's agents,
subtenants or any other person should leave any property of
any kind or character on or in the premises, the fact of such
leaving of property on or in the Leased Premises shall be
conclusive evidence of intent by the Tenant, Tenant's agents
or subtenants, to abandon such property so left in or upon the
Premises, and such leaving shall constitute abandonment of the
property.
Landlord, its agents or attorneys, shall have the right and authority
without notice to Tenant, Tenant's agent or subtenants, or anyone else, to
remove and destroy, or to sell or authorize disposal of such property, or any
part thereof, without being in any way liable to the Tenant or any other party
therefore. The proceeds received therefor shall belong to the Landlord as
compensation for the removal and disposition of said property.
It is understood and agreed by and between the parties hereto that none
of Landlord's servants, agents or employees, have or shall have the actual or
apparent authority to waive any portion of this paragraph, and the Tenant shall
have no right to leave any such property upon the Premises without the written
consent of Landlord.
ARTICLE VII
CASUALTY AND TAKING
.7.1 Casualty and Taking.
(a) If, during the Term, the Building or
Premises shall be partially damaged (as distinguished from
"substantially damaged," as that term is hereinafter defined)
by fire or casualty, Landlord shall proceed promptly to
restore the Building or Premises (consistent, however, with
governmental laws and codes then in existence) to
substantially the condition thereof at the time of such
damage, but Landlord shall not be responsible for delay in
such restoration which may result from any cause beyond the
reasonable control of Landlord.
(b) If during the Term the Building or
Premises shall be substantially damaged (as that term is
hereinafter defined) by fire or casualty, the risk of which is
covered by Landlord's insurance and the holder of any
outstanding mortgage which includes the Building as part of
the mortgaged premises (whose actions shall, to the extent
Landlord acting reasonably can effect the same, be in good
faith) allows the insurance proceeds to be applied to the
restoration of the Building, Landlord shall, promptly after
such damage and the determination of the net amount of
insurance proceeds available to Landlord, expend so much as
may be necessary of such net amount to restore (consistent,
however, with governmental laws and codes then in existence)
the Building and Premises to substantially the condition
thereof at the time of such damage, but Landlord shall not be
responsible for delay in such restoration which may result
from any cause beyond the reasonable control of Landlord. If
the Building or the Premises shall be substantially damaged by
fire or casualty (a) as the result of a risk not covered by
the forms of casualty insurance at the time maintained by
Landlord, or (b) such holder of an outstanding mortgage (whose
actions shall, to the extent Landlord acting reasonably can
effect the same, be in good faith) will not allow the
insurance proceeds to be applied to the restoration of the
Building, or (e) the net amount of insurance proceeds
available to Landlord are insufficient to cover the cost of
restoring the Building in the reasonable estimate of Landlord,
then in any such case, Landlord may, but shall have no
obligation to, restore (consistent, however, with governmental
laws and codes then in existence) the Building and the
Premises to substantially the condition thereof at the time of
such damage or Landlord may terminate this Lease by giving
notice to Tenant within forty-five (45) days after the
occurrence of such fire or casualty, which notice shall recite
the reason among those set forth above for such termination.
Landlord shall not exercise such right of termination,
however, unless, Landlord terminates all other leases then in
effect in the Building, which Landlord has the right to
terminate by virtue of such casualty.
(c) If Landlord shall notify Tenant that
Landlord does not intend to restore the Building and Premises
by reason of the unavailability or insufficiency of insurance
proceeds, Tenant shall have the right to contribute to
Landlord the amount of such insufficiency, and if Tenant shall
promptly notify Landlord of Tenant's desire to contribute such
insufficiency and provide Landlord with security for Tenant's
undertaking in this respect satisfactory to Landlord, Landlord
shall promptly commence and thereafter diligently pursue to
completion the restoration of the Building and Premises unless
otherwise excused by some other provision of this Article VII.
(d) If Landlord does not within forty-five
(45) days after such fire or casualty, advise Tenant of the
status of Landlord's obligations with respect to
reconstruction, i.e., whether the net amount of proceeds
available to cover the cost of restoration are sufficient for
restoration which is expected to be completed within six (6)
months; or that Landlord reasonably expects to restore within
six (6) months regardless of the sufficiency or availability
of proceeds; or that Landlord intends to terminate, Tenant
itself shall have the right until Landlord intends to
terminate, Tenant itself shall have the right until Landlord
shall have notified Tenant of Landlord's intentions, to
terminate this Lease, such termination to take effect as of
the date of such Tenant's notice.
(e) If the Premises shall be substantially
damaged by fire or casualty within the last eighteen (18)
months of the Term (as the same may theretofore have been, as
may thereafter be (by written notice given within ten (10)
days of any such notice by Landlord) extended hereunder),
either party shall have the right, by giving notice to the
other not later than sixty (60) days after such damage, to
terminate this Lease, whereupon this Lease shall terminate as
of the date of such notice.
(f) The term "substantially damaged as used
in this Article VII, shall refer to damage of such a character
that the same cannot, in ordinary course, reasonably be
expected to be repaired within ninety (90) days from the time
that repair work would commence.
(g) Except as hereinafter provided, if the
Premises, or such portion thereof as to render the balance (if
reconstructed to the maximum extent practicable in the
circumstances) unsuitable for Tenant's purposes, shall be
taken by condemnation or right of eminent domain, Tenant shall
have the right to terminate this Lease by notice to Landlord
of its desire to do so, provided that such notice is given not
later than thirty (30) days after the effective date of such
taking. If so much of the Building shall be so taken that
continued operation of the Building would be uneconomic,
Landlord shall have the right to terminate this Lease by
giving notice to Tenant of Landlord's desire to do so not
later than thirty (30) days after the effective date of such
taking.
(h) Should any part of the Premises be so
taken or condemned during, the Tenn, and should this Lease be
not terminated in accordance with the foregoing provisions,
Landlord agrees to use due diligence to put what may remain of
the Premises (consistent, however, with governmental laws and
codes then in existence) and common areas of the Building
servicing the Premises into proper condition for use and
occupation as nearly like the condition of the Premises prior
to such taking as shall be practicable.
(i) If the Premises shall be damaged by fire
or other casualty, the Annual Fixed Rent and Additional Rent
shall be justly and equitably abated and reduced according to
the nature and extent of the loss of use thereof suffered by
Tenant; and in case of a taking which temporarily or
permanently reduces the area of the Premises, a just
proportion of the Annual Fixed Rent and Additional Rent shall
be abated for the applicable portion or remainder, as the case
may be, of the Term. In both cases, above, if any space not
damaged or taken nevertheless becomes unusable, such fact
shall be taken into account when calculating the rent for the
remaining space.
(ii) In the event the Premises or Building
are damaged by fire or casualty and Landlord either elects or
is obligated to restore the same pursuant to any of the
foregoing provisions of this Article VII, if Landlord has not
substantially completed (as that term is defined in Section
3.1 hereof) such restoration within six months of the date of
the occurrence of the fire or casualty that has caused such
damage, Tenant may terminate this lease by written notice to
Landlord given within ten business days after the end of such
six-month period but in all events prior to the time of such
substantial completion.
7.2 Reservation of Award.
Landlord reserves to itself any and all rights to receive awards made
for damages to the Premises and Building and Property and the leasehold hereby
created, or any one or more of them, accruing by reason of exercise of eminent
domain or by reason of anything lawfully done in pursuance of public or other
authority. Tenant hereby releases and assigns to Landlord all Tenant's rights to
such awards, and covenants to deliver such further assignments and assurances
thereof as Landlord may from time to time request. It is agreed and understood,
however, that Landlord does not reserve to itself, and Tenant does not assign to
Landlord, any damages payable for (i) movable trade fixtures installed by Tenant
or anybody claiming under Tenant at its own expense or fixtures, items or
leasehold improvements, whether deemed realty or not, the removal of which is
required or permitted by any agreement given pursuant to Sections 3.1 or 3.2,
and for which Tenant has paid the entire cost thereof, or (ii) relocation
expenses recoverable by Tenant from such authority in a separate action.
ARTICLE VIII
RIGHTS OF MORTGAGEE
8.1 Superiority of Lease.
Except as otherwise provided in Section 8.6 below, this Lease shall be
superior to and shall not be subordinated to any mortgage or other voluntary
lien or other encumbrance arising after the date hereof on the Land or Building,
or both, which are separately and together hereinafter in this Article VIII
referred to as "the mortgaged premises." The word "mortgagee" as used in this
Lease shall include the holder for the time being and any ground lessor or
sublessor whenever the context permits.
8.2 No Prepayment Payment.
No fixed rent, additional rent, or any other charge shall be paid prior
to the due dates thereof and payments made in violation of this provision shall
(except to the extent that such payments are actually received by a mortgagee in
possession or in the process of foreclosing its mortgage) be void as against
such mortgagee and Tenant shall be liable for the amount of such payments to
such mortgagee.
8.3 No Release or Termination.
No act or failure to act on the part of Landlord which would entitle
Tenant under the terms of this Lease, or by law, to be relieved of Tenant's
obligations hereunder or to terminate this Lease, shall result in a release or
termination of such obligations or a termination of this Lease unless (i) Tenant
shall have first given written notice of Landlord's act or failure to act to
Landlord's mortgagees of record, if any, specifying the act or failure to act on
the part of Landlord which could or would give basis to Tenant's rights; and
(ii) such mortgagees, after receipt of such notice, have failed or refused to
correct or cure the condition complained of within a reasonable time thereafter;
but nothing contained in this Section 8.3 shall be deemed to impose any
obligation on any such mortgagee to correct or cure any such condition.
Reasonable times as used above means and includes a reasonable time to obtain
possession of the mortgaged premises, if the mortgagee elects to do so, and a
reasonable time, not less than thirty (30) days, to correct or cure the
condition if such condition is determined to exist.
Notwithstanding the foregoing, the period of time during which
Landlord's mortgagees shall have to cure the following defaults or failures of
Landlord (should they occur):
(i) failure to provide power or other utility services or repairs required of
Landlord hereunder for a period in excess of twelve consecutive months as and to
the extent referred to in the last paragraph of subparagraph 5.2 above; and
(ii) failure to substantially complete restoration of the Building or
Premises after fire or casualty as and within the time prescribed in
subparagraph 7. 10) hereof;
shall not be any longer than the period of time allotted to Landlord
therefor under this Lease provided that (without derogating from any
other obligations or Tenant under this Lease) Tenant promptly deliver
to each such mortgagee of record a copy of all notices and other
communications received from and which it gives to Landlord with
respect to any of the three foregoing enumerated matters.
8.4 No Modification, etc.
No assignment of this Lease and no agreement to make or accept any
surrender, termination or cancellation of this Lease and no agreement to modify
so as to reduce the rent, change the Term, or otherwise materially change the
rights of Landlord under this Lease, or to relieve Tenant of any obligations or
liability under this Lease, shall be valid unless consented to in writing by
Landlord's mortgagees of record, if any.
8.5 Continuing Offer.
The covenants and agreements contained in this Lease with respect to
the rights, powers and benefits of a mortgagee (particularly, without limitation
thereby, the covenants and agreement contained in this Article VIII) constitute
a continuing offer to any person, corporation or other entity, which by
accepting or requiring an assignment of this Lease or by entry or foreclosure
assumes the obligations herein set forth with respect to such mortgagee; such
mortgagee is hereby constituted a party to this Lease as an obligee hereunder to
the same extent as though its name were written hereon as such, and such
mortgagee shall be entitled to enforce such provisions in its own name.
8.6 Subordination.
This Lease shall be subject and subordinate to any first mortgage on
the Building, now or at any time hereafter in effect, and to any and all
advances hereafter made thereunder, and, in addition, Landlord shall have the
option to subordinate this Lease to any other mortgage which includes the
Premises as part of the mortgaged premises, provided that the holder of any
mortgage of the nature referred to in this Section 8.6 enters into an agreement
with Tenant by the terms of which (a) in the event of acquisition of title by
such holder through foreclosure proceedings or otherwise, and provided Tenant is
not in default hereunder to the extent that Landlord has the right to terminate
this Lease, the holder will agree to recognize the rights of Tenant under this
Lease and to accept Tenant as tenant of the Premises under the terms and
conditions of this Lease, subject to any rights of the Tenant regarding defaults
of the Landlord of which Tenant has given notice pursuant to Section 8.3, and
(b) Tenant will agree to recognize the holder of such mortgage as Landlord in
such event. This agreement shall be made to expressly bind and inure to the
benefit of the successors and assigns of Tenant and of the holder and upon
anyone purchasing said Premises at any foreclosure sale.
8.7 Implementation.
Tenant agrees on request of Landlord to execute, acknowledge and
deliver from time to time any agreement which may reasonably be deemed necessary
to effectuate the provisions of this Article VIII.
ARTICLE IX
DEFAULTS
9.1 Events of Default.
Each of the following shall be an Event of Default hereunder:
(a) If Tenant shall default in the performance of any of its
obligations to pay the Annual Fixed Rent or any Additional Rent
hereunder (a "monetary default") and if such monetary default shall
continue for ten (10) days after written notice thereof (which notice
for the purposes of this paragraph may be given prior to the
expiration of the five (5) day period referred to in Section 6. 1. 1,
above); (b) if within thirty (30) days after written notice from
Landlord to Tenant specifying any other default or defaults Tenant has
not commenced diligently to correct the default or defaults so
specified or has not thereafter diligently pursued such correction to
completion; in the event (i) more than two written notices of default
of the same type of obligation are given in any calendar year or (ii)
in the event more than five written notices of default of any nature
are given in any calendar year, then in either such event, Tenant
shall pay to Landlord as rent and at the time the next rental payment
hereunder is due, the sum of One Thousand Dollars ($1,000.00) for each
such notice in each such calendar year in excess of either two or five
such notices as the case may be.
(c) if any assignment shall be made by tenant or any guarantor of
Tenant for the benefit of creditors;
(d) if Tenant's leasehold interest shall be taken on execution;
(e) if a petition is filed by Tenant for adjudication as a bankrupt,
or for reorganization or an arrangement under any provision of the
Bankruptcy Act as then in force and effect, or if an involuntary
petition under any of the provisions of said Bankruptcy Act is filed
against Tenant and such involuntary petition is not dismissed within
ninety (90) days thereafter.
Upon the occurrence of any Event of Default then remaining
uncured, Landlord may terminate this Lease by notice to Tenant, specifying a
date not less than ten (10) days after the giving of such notice on which this
Lease shall terminate and this Lease shall come to an end on the date specified
therein as fully and completely as if such date were the date herein originally
fixed for the expiration of the Term of this Lease (Tenant hereby waiving any
rights of redemption under MGLA c. 186, ss.11), and Tenant will then quit and
surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided.
9.2 Remedies.
(a) If this Lease shall have been terminated as provided in this
Article, or if any execution or attachment shall be issued
against Tenant or any of Tenant's property whereupon the Premises
shall be taken or occupied by someone other than Tenant, then
Landlord may, without notice, re-enter the Premises, either by
force, summary proceedings, ejectment or otherwise, and remove
and dispossess Tenant and all other persons and any and all
property from the same, as if this Lease had not been made, and
Tenant hereby waives the service of notice by Landlord of its
intention to re-enter or to institute legal proceedings to that
end.
(b) In the event of any termination, Tenant shall pay the Annual
Fixed Rent, Additional Rent and all other sums payable hereunder
up to the time of such termination, and thereafter Tenant, until
the end of what would have been the Term of this Lease in the
absence of such termination, and whether or not the Premises
shall have been relet, shall be liable to Landlord for, and shall
pay to Landlord, as liquidated current damages, the Annual Fixed
Rent, Additional Rent and other sums which would be payable
hereunder if such termination had not occurred, less the net
proceeds, if any, of any reletting of the Premises, after
deducting all reasonable expenses in connection with such
reletting, including, without limitation, all reasonable
repossession costs, brokerage commissions, legal expenses,
attorneys, fees, advertising, expenses of employees, alteration
costs and expenses of preparation for such reletting. Tenant
shall pay such current damages to Landlord monthly on the days
which the Annual Fixed Rent, Additional Rent and other sums would
have been payable hereunder if this Lease had not been
terminated.
(c) At any time after such termination, whether or not
Landlord shall have collected any such current damages, as
liquidated final damages and in lieu of all such current
damages beyond the date of such demand, at the election of
Landlord exercisable at any time, Tenant shall pay to
Landlord an amount equal to the excess, if any, of the
Annual Rent,. Additional Rent and other sums as hereinbefore
provided which would be payable hereunder from the date of
such demand (assuming that, for the purposes of this
paragraph, annual payments by Tenant on account of Real
Estate Taxes and operating Expenses would be the same as the
payments required for the immediately preceding Operating or
Tax Year) for the remainder of the Term of this Lease had
the same remained in effect, over the then fair net rental
value of the Premises for the same period.
(d) In case of any Default by Tenant, re-entry, expiration
and dispossession by summary proceedings or otherwise,
Landlord may (i) acting, reasonably relet the Premises or
any part or parts thereof, notwithstanding that this Lease
may not have been terminated, for a term or terms which may
at Landlord's option be equal to or less than or exceed the
period which would otherwise have constituted the balance of
the Term of this Lease and may grant concessions or free
rent to the extent that Landlord considers advisable and
necessary to relet the same and (ii) may make such
reasonable alterations, repairs and decorations in the
Premises as Landlord in its sole judgment considers
advisable and necessary for, the purpose of reletting the
Premises; and the making of such alterations, repairs and
decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Landlord shall
in no event be liable in any way whatsoever for failure to
relet the Premises, or, in the event that the Premises are
relet, for failure to collect the rent under such reletting.
Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in
the event of Tenant being evicted or dispossessed, or in the
event of Landlord obtaining possession of the Premises, by
reason of the violation by Tenant of any of the covenants
and conditions of this Lease.
(e) Landlord may invoke any remedy (including the remedy of
specific performance) allowed at law or in equity as if
specific remedies were not herein provided for.
(f) Upon the occurrence of an Event of Default which is a
monetary default (as defined in Paragraph 9. 1 (a), above)
and notwithstanding that any other Event of Default which is
not a monetary default shall have occurred and remain
uncured at the time; or upon the termination of this Lease
for the occurrence of an Event of Default which is a
monetary default, notwithstanding that such termination may
also have been effected because of the occurrence of a
default other than a monetary default, then and in either
such event, in addition to having the rights and remedies
set forth in Paragraph 9.1 hereof and 9.2 hereof, Landlord
may invoke any other remedy and seek any other damages not
specifically provided for in said Paragraphs 9.1 and 9.2.
Upon the occurrence of one or more Events of Default, none
of which is a monetary default (as defined in Paragraph 9. 1
(a) above); or upon the termination of this Lease for the
occurrence of one or more Events of Default, none of which
is a monetary default, then and in either such event,
Landlord's rights, remedies and damages on account of such
Event of Default or termination shall be limited to those
set forth in Paragraph 9.1 and in Subparagraphs 9.2(a), (b),
(c), (d) and, to the extent of injunctive relief, (e) above.
ARTICLE X
MISCELLANEOUS
10.1 Intentionally Deleted.
10.2 Titles.
The titles of the Articles are for convenience only and are not to be
considered in construing this Lease.
10.3 Notice of Lease.
Landlord and Tenant agree that neither party shall record this Lease.
Upon request of either party, both parties shall execute and deliver a notice of
this Lease in form appropriate for recording or registration, and if this Lease
is terminated before the Lease Term expires, an instrument in such form
acknowledging the date of termination.
10.4 Holding Over.
Any holding over of the Premises by Tenant after the expiration or
earlier termination of the Term or any extension or renewal thereof shall,
subject to the application of the provisions of Paragraph 10. 16, below,
constitute Tenant a trespasser of the Premises unless prior to such expiration
or termination Landlord has executed a written instrument with Tenant in which
Landlord agrees to an extension of the term of this I-ease. If Tenant so holds
over, Landlord by a written notice to Tenant may declare the Tenant a tenant at
will and the tenancy so created may be terminated by not less than ten (10)
days, written notice by either party to the other. In the event Landlord makes
such declaration, the tenancy shall be subject to all of the terms and
provisions of this Lease except that it shall be terminable as above provided
and the rent during such tenancy shall be 150% of the total average monthly
rental payable by Tenant to Landlord for the immediately preceding lease year
including but not limited to Annual Fixed Rent, and Additional Rent as provided
in this Lease.
10.5 Notice.
Whenever any notice, approval, consent, request or election is given or
made pursuant to this Lease it shall be in writing, notwithstanding that certain
references in this Lease to requirements for notice may not call for the same to
be in writing. Communications and payments shall be addressed if to Landlord at
Landlord's Original Address or at such other address as may have been specified
by prior notice to Tenant, and if to Tenant, at Tenant's Original Address prior
to the commencement date and thereafter at the Premises or at such other address
as may have been specified by prior notice to Landlord with a copy sent in the
case of notices to Tenant in the same manner and to the same address addressed
to "Corporate Counsel". Any communication or notice so addressed shall be deemed
duly served when delivered in hand or upon delivery or attempted delivery
following deposit in the U.S. mail, registered mail, return receipt requested.
10.6 Bind and Inure.
The obligations of this Lease shall run with the land, and this Lease
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that only the original Landlord named
herein shall be liable for obligations accruing before the beginning of the
Term, and thereafter the original Landlord named herein and each successive
owner of the Premises shall be liable only for the obligations accruing during
the period of its ownership. Whenever the Premises are owned by a trustee or
trustees, the obligations of Landlord shall be binding upon Landlord's trust
estate, but not upon any trustee or beneficiary of the trust individually.
10.7 No Surrender.
The delivery of keys to any employee of Landlord or to Landlord's agent
or any employee thereof shall not operate as a termination of this Lease or a
surrender of the Premises.
10.8 No Waiver, Etc.
The failure of Landlord or of Tenant to seek redress for violation of,
or to insist upon the strict performance of, any covenant or condition of this
Lease or any of the Rules and Regulations referred to in Section 6.1.4 shall not
be deemed a waiver of such violation nor prevent a subsequent act, which would
have originally constituted a violation, from having all the force and effect of
an original violation. The failure of Landlord to enforce any of said Rules and
Regulations against any tenant in the Building shall not be deemed a waiver of
any such rules or regulations, but Landlord shall not enforce such Rules and
Regulations inconsistently or adopt any new rules or regulations which are
unreasonable. The receipt by Landlord of fixed rent or additional rent with
knowledge of the breach of any covenant of this Lease shall not be deemed to be
a waiver of such breach by Landlord, unless such waiver be in writing signed by
Landlord. No consent or waiver, express or implied, by Landlord or Tenant to or
of any breach of any agreement or duty shall be construed as a waiver or consent
to or of any other breach of the same or any other agreement or duty.
10.9 No Accord and Satisfaction.
No acceptance by Landlord of a lesser sum than the fixed rent and
additional rent then due shall be deemed to be other than on account of the
earliest installment of such rent due, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
pursue any other remedy provided in this Lease. Notwithstanding anything to the
contrary herein, in the event of a dispute, Tenant may make any payment of rent
when due under protest but nothing shall relieve Tenant of its obligations to
punctually and duly perform its obligations hereunder.
10.10 Cumulative Remedies.
The specific remedies to which either Landlord or Tenant may resort under the
terms of this Lease are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which it may be lawfully entitled in case
of any breach or threatened breach by the other party of any provisions of this
Lease. In addition to the other remedies provided in this Lease, Landlord and
Tenant shall be entitled to the restraint by injunction of the violation or
attempted or threatened violation of any of the covenants, conditions or
provisions of this Lease or to a decree compelling specific performance of any
such covenants, conditions or provisions.
10.11 Partial Invalidity and Applicable Law.
This Lease shall be governed by and construed in accordance with the
laws of The Commonwealth of Massachusetts and, if any provisions of this Lease
shall to any extent be invalid, the remainder of this Lease shall not be
affected thereby. There are no oral or written agreements between Landlord and
Tenant affecting this Lease. This Lease may be amended, and the provisions
hereof nay be waived or modified, only by instruments in writing. executed by
Landlord and Tenant.
10.12 Landlord's Right to Cure Tenant's Default.
If Tenant shall at any time default in the performance of any
obligation under this Lease, Landlord shall have the right, but shall not be
obligated, to enter upon the Premises and to perform such obligation
notwithstanding the fact that no specific provisions for such substituted
performance by Landlord are made in this Lease with respect to such default.
Except in case of emergency, these rights shall be exercised only after ten (10)
days prior written notice from Landlord to Tenant of Landlord's intention to do
so. In performing such obligation, Landlord may make any payment of money or
perform any other act. All sums so paid by Landlord (together with interest at
an annual rate equal to the prime rate of interest announced from time to time
by BankBoston, N.A., plus two percentage points (2%) and all necessary
incidental costs and expenses in connection with the performance of any such act
by Landlord shall be deemed to be additional rent under this Lease and shall be
payable to Landlord immediately on demand. Landlord may exercise the foregoing
rights without waiving any other of its rights or releasing Tenant from any of
its obligations under this Lease.
10.13 Estoppel Certificates.
Tenant shall from time to time, upon request by Landlord, execute, acknowledge
and deliver to Landlord or Landlord's designee a statement in writing certifying
that this Lease is unmodified and in full force and effect and that Tenant has
no defenses, offsets or counterclaims against its obligations to pay the fixed
rent and additional rent and to perform its other covenants under this Lease and
that there are no uncured defaults of Landlord or Tenant under this Lease (or,
if there have been any modifications, that the same is in full force and effect
as modified and stating the modifications and, if there are any defenses,
offsets, counterclaims or defaults, setting them forth in reasonable detail),
and the dates to which the fixed rent, additional rent and other charges have
been paid. Any such statement delivered pursuant to this Section 10. 13 may be
relied upon by any prospective purchaser or mortgagee of the Building or
Property.
Landlord shall from time to time upon request of Tenant, execute,
acknowledge and deliver to Tenant, or Tenant's designee, a statement in writing
reciting (to the extent Landlord acting reasonably considers the same to be
accurate) that this Lease is unmodified and in full force and effect; that no
moneys are due from Tenant to Landlord hereunder; that Tenant has not asserted
in writing any offsets against payment of the rent or other sums due hereunder,
and that no notice of default given by Landlord to Tenant remain outstanding.
10.14 Waiver of Subrogation.
Any insurance carried by either party with respect to the Premises and
property therein or occurrences thereon shall, if the other party so requests
and if it can be so written without additional premium, or with an additional
premium which the other party agrees to pay, include a clause or endorsement
denying to the insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to occurrence of injury or
loss. Each party, notwithstanding any provisions of this Lease to the contrary,
hereby waives any rights of recovery against the other for injury or loss due to
hazards covered by insurance containing such clause or endorsement to the extent
of the greater of indemnification received thereunder or the full insurable
value of the portion of the Premises so damaged.
10. 15 Brokerage.
Tenant warrants and represents that, except as hereinafter set forth,
it has not dealt with any real estate broker or agent in connection with this
Lease or its negotiation. Tenant represents that it has employed ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇ as its broker at its own expense. Tenant shall indemnify Landlord and hold
Landlord harmless from any cost, expense or liability (including costs of suit
and reasonable attorney's fees) for any compensation, commission or fees claimed
by ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ or any other real estate broker or agent in connection with
this Lease or its negotiation by reason of any act of Tenant. Landlord warrants
and represents that it has not dealt with any real estate broker or agent in
connection with this Lease or its negotiation, and shall indemnify Tenant and
hold Tenant harmless from any costs, expense or liability (including costs of
suit and reasonable attorney's fees) for any compensation, commission or fees
claimed by any real estate broker or agent other than ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ in
connection with this Lease or its negotiation by reason of any act of Landlord.
10.16 Force Majeure.
Except to the extent, if any, otherwise specifically provided in
Articles III, V and VII, above, in any case where either party hereto is
required to do any act, and is prevented or delayed in its performance thereof
by or resulting, from an act of God, war, civil commotion, fire or other
casualty, labor difficulties, shortages of labor, materials or equipment,
governmental regulations, act of the other party, or other causes beyond such
party's reasonable control (other than financial inability), the period of time
during, which it is so prevented or delayed shall not be counted in determining
the time during which such act is to be performed, whether such time be
designated by a fixed date, a fixed time or a "reasonable time" and such party
shall have no liability by reason thereof.
10.17 Authority.
If Tenant is a corporation, Tenant warrants that it has legal authority
to operate and is authorized to do business in The Commonwealth of
Massachusetts. Tenant also warrants that the person or persons executing this
Lease on behalf of Tenant has or have authority to do so and fully to obligate
Tenant to all terms and provisions of this Lease. Tenant shall, upon request
from Landlord, furnish Landlord with a clerk's certificate of votes of its Board
of Directors authorizing this Lease and granting authority to execute it to the
person or persons who have executed it on Tenant's behalf.
Landlord warrants that it has legal authority to operate and is
authorized to do business in The Commonwealth of Massachusetts. Landlord also
warrants that the person or persons executing this Lease on behalf of Landlord
has or have authority to do so and fully to obligate Landlord to all terms and
provisions of this Lease.
10. 18 Parking.
Landlord shall provide Tenant with parking, as hereinafter set forth,
upon payment of the then monthly rate for parking spaces in the area(s) on the
property designated by the Landlord for parking. The monthly rate for each
parking space shall be $190.00 per month for the one year period beginning on
the Term Commencement Date and shall thereafter be the prevailing market rate
for parking spaces in garages in comparable buildings located in the area of
Cambridge, Massachusetts where the Building is located. Tenant shall abide by
any and all reasonable parking regulations and rules established by Landlord or
Landlord's parking operator. Tenant shall be provided with one (1) parking space
for every 1,000 p.s.f. of the Premises. A fraction of 1/2 or greater shall
entitle Tenant to a full parking space. Tenant shall specify the number of
spaces required from time to time, up to its permissible maximum, upon thirty
(30) days' advance written notice to Landlord and shall pay the charge therefor
from and after the date of delivery of such space. In the event Tenant does not
require the use of all of its permissible maximum number of parking, spaces,
Landlord may allocate unused parking spaces to other users, provided such
parking spaces shall be made available to Tenant within thirty (30) days of
Tenant's notice that such parking spaces are required.
10.19 Building Directory. Tenant shall have the right to not more than
Tenant's then percentage of the rentable area of the Building, calculated as in
Section 4.2.4, above, of the listings on the lobby directory of the Building.
The listing of one or more names of persons other than Tenant on such lobby
directory shall not be construed as a consent by Landlord to an assignment or a
subletting by Tenant to such person or persons. Landlord agrees while this Lease
is in effect (i) not (of its own initiative) to change the present address of
the Building, and (ii) not to name the Building after a business competitor of
Tenant.
10.20 Tenant's Right to Cure.
If Landlord defaults in the performance or observance of any of its
covenants or obligations set forth in this Lease, Tenant shall give Landlord
notice specifying in what manner Landlord has defaulted and if Landlord shall
not within twenty (20) days of such notice commence and thereafter diligently
pursue to completion the cure of such default (except that if such default shall
render the Premises or any part thereof exceeding twenty percent (20%) thereof
unusable for the Permitted Uses or shall constitute an immediate danger to life
or property the initial twenty (20) day period described above shall, for
purposes of this paragraph, be deemed to be three (3) days), Tenant may
forthwith cure the same and invoice Landlord for costs and expenses (including
reasonable attorneys' fees and court costs) incurred by Tenant in curing the
same, together with interest from the date Landlord receives Tenant's invoice,
at a rate equal to the lesser of two percent (2 %) over the base rate in effect
from time to time at BankBoston, N.A. or the maximum rate allowed by law. In no
event, however, shall such right to reimbursement give rise to any right of
setoff or other reduction of the rent or any other sum due from Tenant to
Landlord hereunder, Tenant's sole remedy being the right to bring a separate,
independent suit against Landlord for such reimbursement.
10.21 Certain Other Matters.
(a) Insofar as the same relate to the Premises or the
Building, Tenant agrees to comply at all times at its own
expense with all Federal, State and local environmental
protection laws, so-called, and all rules, regulations and
ordinances relating thereto, including without limitation,
Massachusetts General Laws c. 21E, the Federal Comprehensive
Environmental Response Compensation and Liability Act, the
Federal Resource Conservation and Recovery Act and all
amendments thereto.
(b) Tenant will neither permit nor suffer the presence of
any hazardous materials (as that term is defined in any of
the foregoing statutes) on the premises at any time except
only for reasonable amounts of customarily used office
supplies and cleaning materials and, upon request of
Landlord, will deliver to Landlord a list reciting the
identity and quantity of all such hazardous materials on the
premises. Tenant will make no unlawful use of any hazardous
materials and will neither suffer nor permit any threat of
release, release or any other improper discharge thereof. If
any threat of release or release occurs, Tenant will
promptly remediate the same at its own expense and in
accordance with all applicable law. In the event Tenant
receives any notice from any regulatory agency or other such
party requiring any action with respect to the remediation
of any threat of release or release of any hazardous
materials, Tenant will promptly fully notify Landlord
thereof. Tenant will indemnify and save Landlord harmless
from all loss, cost and expense Landlord may suffer or incur
in connection with the failure of Tenant to perform any of
its obligations hereunder, the provisions of this paragraph
to survive and remain operative after termination of this
Lease for any reason.
(c) Landlord agrees to indemnify and save Tenant harmless
from all loss, cost and expense Tenant may suffer or incur
by virtue of any violation by Landlord of any law, rule,
regulations or ordinance referred to in (a) above to the
extent of any personal injury or property damage or cost to
Tenant of any remediation activity Tenant by law is required
to perform. In the event Tenant suffers any such loss by
virtue of the activity of any other tenant in the Building,
Landlord at Tenant expense will enforce such rights as it
has against such Tenant, the result of which will be to
indemnify Tenant from and against all such loss. Landlord
further agrees to indemnify and save Tenant harmless from
all loss, cost and expense Tenant may suffer or incur in
connection with the Premises by reason of the violation by
Landlord of any other law, ordinance or regulation relating
to the Building or the Premises.
(d) This Lease may be executed by the
parties hereto by means of multiple counterparts which, when
taken together, shall constitute one document.
10.22 Prior Lease. Reference is made to the lease dated as of June 15,
1989, as amended by that certain Amendment to Lease dated as of May 31, 1990,
that certain Second Amendment to Lease dated as of December 31, 1992 and that
certain Settlement Agreement dated as of June 23, 1992, between Landlord and
Tenant (collectively, the "Prior Lease"), pursuant to which the Premises are
currently demised by Landlord to Tenant. This Lease shall constitute an
amendment and restatement in whole of the Prior Lease, provided that such
amendment and restatement shall not be construed as relieving either party from
any undischarged obligations arising under the Prior Lease.
EXECUTED as a sealed instrument as of the day and year first above written.
Landlord:
ONE MEMORIAL DRIVE LIMITED
PARTNERSHIP
By: One Memorial Drive Property
Management, Inc., its agent
By:_____________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President
Tenant:
PUTNAM, HAYES & ▇▇▇▇▇▇▇▇,
INCORPORATED
By:/s/ ▇▇▇▇▇▇▇ ▇. Levine____________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Corporate Counsel
hereunto duly authorized
CERTIFICATE OF VOTE
OF
PUTNAM, HAYES & ▇▇▇▇▇▇▇▇, INCORPORATED
I, the undersigned, hereby certify that I am the Clerk of Putnam, Hayes
& ▇▇▇▇▇▇▇▇, Incorporated, a Massachusetts corporation, duly elected, qualified
and acting as such; that as such Clerk I have custody of the minutes of the
meetings of the Board of Directors of said corporation; that at a meeting of
said Board of Directors duly called and held on_________, 199_, at which a
quorum of the Directors was present and voted throughout, it was unanimously
VOTED: That this corporation lease from One Memorial Drive
Limited Partnership an area of approximately 55,763
square feet of floor space in the building located at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, at such
rental, for such period of time, and upon such other
terms and conditions as_________________,
of this corporation may in his sole
discretion deem advisable; that the said , be and he
hereby is authorized and directed to execute and
deliver on behalf of this corporation a form of
lease, Notice of Lease, Subordination,
Non-Disturbance and Attornment Agreement and such
other documents, all in such form and upon such terms
and conditions as the said in his sole discretion
shall deem appropriate in the circumstances; and that
the execution and delivery of each thereof by the
said shall be conclusive evidence that each of the
sane shall have been authorized hereby.
I further certify that ___________________ presently is Clerk of said
corporation, that the foregoing vote presently is in full force and effect and
has not been modified or amended, and that the passage of the same was
consistent with and not in violation of the bylaws, charter and other governing
documents of said corporation.
Dated: January, _ 1998 __________________________________
Clerk, Putnam, Hayes & ▇▇▇▇▇▇▇▇, Incorporated
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
A parcel of land, partly registered and partly unregistered shown as
containing 74,283 + square feet according to a plan entitled "Plan of and in
Cambridge, Mass", dated April 8, 1974 by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc. and recorded
with the Middlesex South Registry of Deeds in Book 12634, Page 63, and bounded
and described according to that plan as follows:
NORTHERLY by Main Street, five hundred forty-one and 35/100 feet;
SOUTHEASTERLY by the Esplanade, so called, four hundred seventy-six and
11/100 feet;
SOUTHWESTERLY one hundred twenty-feet;
NORTHWESTERLY nineteen and 85/100;
SOUTHERLY seventy-six and 34/100 feet; and
NORTHWESTERLY one hundred twenty-five and 118/1000 feet, this and said
last three courses being by land now or formerly of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. (although not so marked on said
plan).
Together with the buildings, improvements, and fixtures located thereon.
There are included in the land conveyed hereby the following two
parcels of registered land:
The first registered parcel is shown as Lot F on Land Court Plan 2090C,
filed with Certificate 8538 in Registration Book 58, Page 309, in the Middlesex
South Registry District of the Land Court, bounded and described as follows:
Northerly by the Southerly line of Main Street, two hundred
seventy-one and 37/100 feet;
Southeasterly by the Northwesterly line of the Esplanade,
one hundred thirty and 39/100 feet;
Southwesterly by land now or formerly of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
et al., Trustees, one hundred seventy-eight and 68/100 feet;
and
Westerly by Lot E as shown on plan hereinafter mentioned, eight and
83/100 feet (Lot E being part of the second registered parcel below identified).
The second registered parcel is that shown on Land Court Plan 6615B
filed with the Certificate filed in Registration Book 60, Page 301. in the
Middlesex South Registry District of the Land Court, bounded and described as
follows:
Northerly by the Southerly line of Main Street, two hundred
and thirty feet;
Easterly, seventy-two and 28/100 feet;
Southeasterly, two hundred and 70/100 feet, by land now or
formerly of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, et al., Trustees;
Southerly by land now or formerly of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc.,
thirty-six and 34/100 feet; and
Westerly by other land now or formerly of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
et al, Trustees, one hundred and twenty-five feet.
For Mortgagor's title see transfer Certificate of Title No.
170276 and deed recorded at Middlesex Registry of Deeds at
Book 15494, Page 554.
EXHIBIT C
DETERMINATION OF FAIR RENTAL VALUE
In the event the Fair Rental Value of the Additional Premises or the
Premises during any Additional Term must be determined by appraisal, the
determination of Fair Rental value shall be made:
(i) by an appraiser chosen by agreement between the
parties; or
(ii) if the parties shall not agree on an appraiser within
thirty (30) days after the period for agreement on Fair
Rental Value has elapsed, by taking the arithmetic
average of the value assigned by three appraisers, one
selected by each of the parties, and the third selected
by agreement of the two appraisers so selected;
provided that, if the appraised value assigned by any
appraiser selected by a party shall be less than ninety
percent (90%), or more than one hundred ten percent
(110 %) of the appraised value assigned by the third
appraiser, then such first value shall, for purposes of
this subparagraph, be increased to ninety percent (90%)
or decreased to one hundred ten percent (110 %), as
applicable, of the appraised value assigned by such
third appraiser. All appraisers referred to in this
Exhibit shall be M.A.I. appraisers with at least 10
years of experience appraising commercial real estate
in the greater Boston area. The costs of each appraiser
shall be borne by the party appointing him, or in the
case of a third appraiser, shall be shared equally by
the parties. In the event that either party fails to
appoint an appraiser pursuant to this subparagraph
within thirty (30) days after the period for agreement
of Fair Rental Value has elapsed, then the appraiser,
if any, appointed by the other parties shall, acting
singularly, make the determination of Fair Rental
Value. If the two appraisers appointed by the parties
do not within a period of fifteen (15) days after the
appointment of the later of them, appoint a third
appraiser willing so to act, then either party may
designate instead that the third appraiser be appointed
by the American Arbitration Association (pursuant to
its then applicable rules) or a successor organization
thereto (unless any party or business associate thereof
holds such a position, in which event said third
appraiser shall be appointed by the person holding the
next highest position on said Board who is not a
business associate of any party) and the individual so
appointed shall for all purposes have the same standing
and powers as though he had been seasonably appointed
by the appraisers first appointed. The appraisers shall
be instructed that the foregoing appraisals shall
reflect any anticipated increase in the rental payable
between the date of the appraisers, report and the
first day of the extended term and that in determining
the same they may (but need not) take into account any
appropriate nationally recognized consumer Price Index.
Such appraisals shall also take into account the fact
that the portion of the rental subject to appraisal
which is included in Tenants Included Share of Real
Estate Taxes and Operating Expenses (referred to on
page 3 above) by their own terms are subject to
increase. The appraisers shall also considers all other
relevant factor . No rental increase shall be
attributable to the value of or the right to use any
improvements paid for by Tenant (and not reimbursed by
Landlord) and installed after commencement of the term
of the Prior Lease. Each appraiser appointed hereunder
shall acknowledge in writing an obligation hereunder to
reach a decision no later than 30 days after their
appointment.
EXHIBIT D
INTENTIONALLY DELETED
EXHIBIT E
INTENTIONALLY DELETED
EXHIBIT F
INTENTIONALLY DELETED