EXHIBIT 10.35
OFFICE LEASE
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇ REFERENCE DATA
1.1 Defined Terms.
The terms listed below shall have the following meanings throughout this Lease:
"DATE OF THIS LEASE": May 6, 1997 (The date on which both parties have executed
this Lease).
"LANDLORD": CC&F Second Avenue Trust, a Massachusetts nominee trust "LANDLORD'S
ADDRESS": c/o Cabot, Cabot & Forbes ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ FAX (▇▇▇) ▇▇▇-▇▇▇▇ "TENANT": Raptor Systems, Inc.
"TENANT'S ADDRESS": Prior to occupancy: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ From
and after the Commencement Date for the Phase I Premises: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
"BUILDING": The building located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇.
"PROPERTY": The Building and the legal parcels (the "Lot") on which the Building
and its parking areas are situated. The Lot is described in Exhibit B,
attached hereto. The term "Property" shall also include any additional
improvements constructed on the Lot and any additional parking lot or
garage providing parking for the Building as provided in Section 2.1(c).
"PREMISES": Initially, the space located on the second floor of the
Building, comprised of the "Phase I Premises" as shown on Exhibit A. Upon
the occurrence of the Commencement Date for future Phases (as provided in
Section 2.2) and, if applicable, the First Floor Expansion Space (as
provided in Section 2.5), such future Phases shall be included as part of
the Premises. The Phase II Premises and the Phase III Premises will each
consist of approximately 9,000 to 10,000 rentable square feet on the second
floor, in locations to be agreed upon by Landlord and Tenant. Where the
context permits, the term "Phase" as used herein shall include the Phase I
Premises, the Phase II Premises, the Phase III Premises and, if applicable,
the First Floor Expansion Space.
"RENTABLE SQUARE FEET IN THE PREMISES": From and after the Commencement Date for
the Phase I Premises until the Commencement Date for the Phase II Premises,
approximately 30,000 rentable square feet, subject to final confirmation as
set out in Section 2.2. From and after the Commencement Date for any future
Phase, the Rentable Square Feet in the Premises will increase by the
rentable area of such Phase. The parties estimate that the Phase I
Premises, the Phase II Premises and the Phase III Premises will contain, in
the aggregate, approximately 49,834 rentable square feet, and the First
Floor Expansion Space will contain approximately 10,000 rentable square
feet. "TENANT'S PERCENTAGE": The number (expressed as a percentage)
obtained by dividing the Rentable Square Feet in the Premises by the
rentable square feet in the Building. The rentable square feet in the
Building is expected to be 95,919, and as a result Tenant's Percentage for
the Phase I Premises (30,000 square feet) is expected to be 31.28%. The
actual rentable square feet in the Building and in the Phase I Premises
will be calculated by ▇▇▇▇▇▇▇▇'s architect upon completion of the Phase I
Premises and will be set out in Landlord's notice establishing the
Commencement Date for the Phase I Premises (which notice is described in
Section 2.2(a)). Tenant's Percentage will increase upon the Commencement
Date of each Phase, based on measurements of each Phase by ▇▇▇▇▇▇▇▇'s
architect. Landlord agrees that the actual Rentable Square Feet in the
Premises, in the aggregate, will not exceed 50,831 square feet and the
actual rentable square feet in the Building will be not less than 94,001
square feet. "SCHEDULED PHASE I PREMISES COMMENCEMENT DATE": December 15,
1997. "SCHEDULED PHASE II PREMISES COMMENCEMENT DATE": The earlier to occur
of (i) the date which is twelve (12) months after the Commencement Date for
the Phase I Premises, or (ii) the date that is one hundred twenty (120)
days after the date Landlord receives written notice from Tenant that
▇▇▇▇▇▇ has elected to accelerate the date of its occupancy of the Phase II
Premises. "SCHEDULED PHASE III PREMISES COMMENCEMENT DATE": The earlier to
occur of (i) the date which is eighteen (18) months after the Commencement
Date for the Phase I Premises, or (ii) the date that is one hundred twenty
(120) days after the date Landlord receives written notice from Tenant that
▇▇▇▇▇▇ has elected to accelerate the date of its occupancy of the Phase III
Premises. "TERM": Seventy-eight (78) calendar months, commencing on the
Commencement Date for the Phase I Premises. "BASE RENT": From and after the
Commencement Date for the Phase I Premises, through and including the last
day of the sixtieth (60th) full calendar month of the Term, at the annual
rate of $26.00 multiplied by the Rentable Square Feet in the Premises. (The
Base Rent is subject to adjustment prior to delivery of the second segment
of the Phase I Premises, as provided in Section 2.2(a) hereof.) From and
after the first day of the sixty-first (61st) full calendar month of the
Term, through the remainder of the Term, at the annual rate of $27.75
multiplied by the Rentable Square Feet in the Premises. "EXPENSE STOP": The
product of $7.50 multiplied by the Rentable Square Feet in the Premises.
"PERMITTED USES": General office, software development, and sales office
purposes (but not retail sales), consistent with Section 6.3 hereof.
"TENANT'S PARKING SPACES: The product of .0039 multiplied by the Rentable
Square Feet in the Premises (i.e., 3.9 spaces per 1,000 rentable square
feet). "SECURITY DEPOSIT": $647,842.00 (subject to adjustment as provided
in Section 10.24.) The Security Deposit shall be provided to Landlord by
certified check or through a letter of credit, as provided in Section
10.24. "BROKERS": Avalon Partners, Inc. and Whittier Partners. 1.2 Exhibits
There are attached hereto and incorporated as a part of this Lease: (a)
EXHIBIT A - Premises (b) EXHIBIT B - Lot (c) EXHIBIT C - Notice of
Commencement Date (d) EXHIBIT D - Form of Clerk's Certificate (e) EXHIBIT E
- Route 128 Exposure Area (g) EXHIBIT F - Description of the Project (h)
EXHIBIT G - Tenant's Special Power and HVAC Requirements (i) EXHIBIT H -
Supplemental Escrow Agreement
ARTICLE 2 PREMISES AND TERM
2.1 The Premises, Common Areas and Parking.
(a) Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises, as generally shown on Exhibit A, to be more particularly
described in the final plans described in Section 4.1 hereof. The Premises does
not include exterior faces of exterior walls and exterior window glass; anything
beyond the interior face of demising walls; and pipes, ducts, conduits, wires
and fixtures serving other parts of the Building, but does include any
additional telephone closets or other utility, mechanical or storage spaces or
facilities made available during the Term for Tenant's exclusive use.
(b) Tenant shall also have the right to use the Common Areas in common
with other tenants. The Common Areas include the Building's common lobbies,
corridors, stairways, loading platforms and elevators, the common walkways and
driveways necessary for access to the Building, the common toilets and shower
areas, corridors and elevator lobbies of any multi-tenant floor, the parking
lots and/or garages serving the Building and the Building's cafe. Tenant will
have twenty-four (24) hour access to the Premises, seven (7) days per week. All
use of the Common Areas shall be only upon the reasonable terms generally
applicable to all tenants in the Building, as set forth from time to time by
Landlord.
(c) Tenant shall be entitled to use Tenant's Parking Spaces (set out in
Section 1.1) in the parking lots serving the Building, which number includes a
pro rata share of any handicapped or visitor spaces contained in such lots;
provided, however, that Landlord and Tenant agree that Tenant's Parking Spaces
shall be undesignated and shall be allocated by Landlord either (i) between the
two existing parking lots serving the Building, or (ii) between such existing
lots and the parking lot(s) located on neighboring parcels acquired by Landlord
after the Date of this Lease (provided that any parking located on such
neighboring lots shall not be located further from the Premises than the
existing parking lot located across Second Avenue from the Building) in either
case in proportion to the total number of parking spaces existing on each lot.
Landlord may, at its election, provide the parking on any parking lot described
herein in a parking garage or structure. It is understood that Landlord shall
not be responsible for policing said parking lots but that Landlord will limit
the number of parking spaces leased to other tenants in the Building so as to
ensure that the number of parking spaces which Tenant is entitled to use are
available for Tenant's use. Tenant shall reasonably cooperate with Landlord to
assure that Tenant and its employees and visitors observe all reasonable parking
regulations established by Landlord from time to time and to assure that Tenant
and its employees and visitors do not use more parking spaces than the number of
parking spaces provided to Tenant hereunder.
2.2 Term.
(a) Both parties shall be bound by all the terms of this Lease as of
the Date of this Lease. The Term of this Lease shall commence on the
Commencement Date for the Phase I Premises, as provided below. Subsequent Phases
shall be added to the Premises on the applicable Commencement Date for each such
Phase.
The Commencement Date for each Phase shall be the earlier of (i) the
date on which such Phase is Ready for Occupancy, but in no event earlier than
the Scheduled Phase I Premises Commencement Date, the Scheduled Phase II
Premises Commencement Date, or the Scheduled Phase III Premises Commencement
Date, as applicable or (ii) the date on which Tenant begins to conduct business
within any portion of such Phase. Each Phase shall be deemed to be "Ready for
Occupancy" when the construction of the Leasehold Improvements, as such term is
defined in Section 4.1, in such Phase has been substantially completed in
accordance with the Final Plans pursuant to Section 4.1, as reasonably
determined by Landlord, and any certificate or approval required by local
governmental authority for occupancy of such Phase has been obtained.
Notwithstanding the foregoing, the delivery of the Phase I Premises
will occur in two segments (a "segment"), the first of which will contain
between 7,500 and 10,000 square feet and the second of which will contain the
balance of the Phase I Premises. Not later than May 23, 1997, ▇▇▇▇▇▇ will
identify for Landlord the size and location of the first segment. Only the first
segment will be taken into account in determining the Commencement Date for the
Phase I Premises. However, prior to the Second Segment Rent Date (defined
below), the Base Rent and Additional Rent due hereunder will be reduced
proportionately so that Tenant is required to pay Base Rent and Additional Rent
only on the first segment of the Phase I Premises. The Second Segment Rent Date
will be the later of (i) January 15, 1998 or (ii) the date on which the second
segment is Ready for Occupancy.
As soon as may be convenient after the delivery of each Phase (or
segment, in the case of Phase I), Landlord shall deliver to Tenant written
notice ("Notice") in the form attached as Exhibit C, setting out the
Commencement Date for such Phase or segment, and the Rentable Square Feet in the
Premises, the Tenant's Percentage, the Base Rent, and the Tenant's Parking
Spaces, all adjusted to reflect the addition of such Phase (or segment) to the
Premises. Tenant shall promptly return to Landlord a countersigned original of
each Notice.
(b) Tenant acknowledges that as of the date of this Lease, Landlord has
contracted in writing to purchase the Property from the current owner on or
before June 5, 1997, but has not yet acquired the Property or obtained all of
the permits necessary for the Project described in Section 4.1 herein and for
the use of the Property as contemplated herein. ▇▇▇▇▇▇▇▇ agrees from time to
time prior to the Commencement Date for the Phase I Premises, to keep Tenant
informed of its progress (including, without limitation, providing notice to
Tenant promptly after the acquisition of the Property and promptly after
commencement of construction), and to respond to all reasonable requests of
Tenant concerning the status of the Project. ▇▇▇▇▇▇▇▇ agrees to use reasonable
efforts to acquire the Property and commence construction of the building
renovations on or before the respective Target Dates set out below. However, if
due to unanticipated difficulties, Landlord does not proceed with the
acquisition or development of the Project, Landlord agrees to promptly notify
Tenant and upon such notice this Lease will terminate, and will thereafter have
no further force and effect, provided that this termination right will expire on
the earlier of (i) the date on which Landlord acquires the Property, or (ii)
July 1, 1997. Upon such termination, Landlord and Tenant shall not have any
further obligations or liability to each other with respect to the Project or
this Lease.
In the event that Landlord has not acquired the Property by July 1,
1997 or has not commenced construction of the building renovations on or before
July 15, 1997 (each such date being referred to herein as a "Target Date"), then
Tenant may give notice to Landlord within ten (10) days after the applicable
Target Date, of its election to terminate this Lease. Such notice will be
effective to terminate this Lease, in which case neither party shall have any
further rights, liabilities, or obligations hereunder, unless prior to receipt
of such notice the Landlord has either acquired the Property or commenced
construction (as applicable) in which case Tenant's notice shall have no force
and effect. For purposes hereof, Landlord will be deemed to have commenced
construction of the Project when it has entered into a construction contract for
the Project (or if the work is to be performed by more than one contractor, for
the initial demolition and renovation work to the Building) and such contractor
has commenced operations on the Property.
(c) Landlord shall use reasonable efforts to deliver the first segment
of the Phase I Premises by the Scheduled Phase I Premises Commencement Date, the
second segment by January 15, 1998, the Phase II Premises by the Scheduled Phase
II Premises Commencement Date, and the Phase III Premises by the Scheduled Phase
III Premises Commencement Date. If any Phase (or segment) is not Ready for
Occupancy on the applicable Scheduled Commencement Date for such Phase, Landlord
shall not be subject to any liability for such failure, except as expressly set
forth below, and such failure shall not affect the validity of this Lease, but
Tenant shall not be liable for any rent until the Commencement Date for the
applicable Phase. Notwithstanding the foregoing, if the first segment of the
Phase I Premises are not Ready for Occupancy by December 15, 1997, or if the
second segment of the Phase I Premises are not Ready for Occupancy by January
15, 1998, Tenant shall receive one day of free Base Rent for each day delivery
of such segment is delayed beyond such date, provided that (i) such free rent
arrangements shall not apply to the extent that such delay was caused by any
action or inaction of Tenant or any Force Majeure, except that any extension of
such December 15 or January 15 date due to Force Majeure delays will not exceed
sixty (60) days, (ii) a failure of Landlord's contractor to complete
construction on schedule shall not constitute "Force Majeure" unless such
failure was attributable to an event which would itself constitute Force Majeure
and (iii) such free rent will only apply to the segment which was the subject of
the delay.
(d) To the extent that any Phase (or segment) is not Ready for
Occupancy because Tenant has failed to comply with Tenant's obligations under
Section 4.1 or under any work letter or construction agreement between the
parties, or has otherwise delayed Landlord in preparing any Phase (or segment)
or in obtaining a Certificate of Occupancy for any Phase (or segment), then
Tenant will pay to Landlord, as additional rent, an amount equal to the Base
Rent and Additional Rent which would have been payable for the period from (i)
the date that such Phase (or segment) would have been Ready for Occupancy except
for such Tenant-caused delay through (ii) the Commencement Date for such Phase
(or segment).
2.3 Extension Option
(a) Tenant shall have the option to extend the Term of this Lease for
two successive periods of five (5) years each (such periods being herein
referred to as the "First Extension Period" and the "Second Extension Period"),
on all of the terms and conditions contained in this Lease, except that Landlord
shall not be obligated to undertake any additional Leasehold Improvements to the
Premises, the Base Rent and the Expense Stop for each extension period shall be
calculated as set forth in this Section 2.3, and there shall be no additional
extension options beyond the Second Extension Period, the parties agreeing that
the maximum Term of this Lease, including extensions, shall be sixteen and
one-half (16 1/2) years. Tenant shall exercise each extension option by giving
Landlord notice of its election to do so, on or before the date that is two
hundred seventy (270) days prior to the expiration of the initial Term (or the
First Extension Period, as the case may be); provided, however, that if Tenant
fails to give timely notice to Landlord of Tenant's exercise of either extension
option, Tenant shall be deemed to have waived its extension option rights under
this Section 2.3. The word "Term" as used in this Lease shall include the
initial Term, the First Extension Period and the Second Extension Period where
the context so requires.
(b) The Base Rent during each extension period shall be equal to
ninety-five percent (95%) of the market rental value of the Premises, taking
into account the applicable Expense Stop and the other terms of this Lease, the
"as is" condition of the Premises, and (if applicable) the absence of a tenant
improvement allowance and brokerage commission for the extension period, but,
with respect to the First Extension Period, in no event lower than the Base Rent
for the last year of the original term hereof as set forth in Section 1.1, and
with respect to the Second Extension Period, in no event lower than the Base
Rent during the First Extension Period (the "Extension Rent"). The Expense Stop
during each extension period shall be an amount equal to Tenant's Percentage of
the actual Operating Expenses incurred in the last full Fiscal Year prior to
Tenant's notice of its election to extend the initial Term (or the First
Extension Period, as applicable). Landlord shall give Tenant notice of the
amount of the Extension Rent promptly after Tenant notifies Landlord of its
election to exercise either extension option. If ▇▇▇▇▇▇ agrees with ▇▇▇▇▇▇▇▇'s
determination of the Extension Rent, Tenant shall notify Landlord of such
agreement within twenty (20) days after ▇▇▇▇▇▇ receives Landlord's notice of the
amount of the Extension Rent. If Tenant disagrees with Landlord's determination
of the Extension Rent, Tenant may, by notice given to Landlord within twenty
(20) days after Tenant receives Landlord's notice of the amount of the Extension
Rent, (i) revoke Tenant's election to exercise the Extension Option whereupon
the Extension Option and all of Tenant's rights related thereto set forth in
this Section 2.3 shall terminate or (ii) elect to have the fair market rental
value for the Premises determined by the appraisal process (the "Appraisal
Process") set forth in subsection 2.3(c) below, which fair market rental value
determination shall be binding on both Landlord and Tenant. If Tenant does not
notify Landlord within such twenty (20) day period of (x) Tenant's agreement to
the Extension Rent, (y) Tenant's revocation of its exercise of the Extension
Option, or (z) Tenant's election to have the fair market rental value determined
by the Appraisal Process, the Extension Option and all of Tenant's rights
related thereto set forth in this Section 2.3 shall terminate.
(c) Within ten (10) days after Landlord receives Tenant's election to
use the Appraisal Process, if Tenant shall elect to have the fair market rental
value for the Premises determined by the Appraisal Process, Landlord and Tenant
shall adopt the following procedures:
(i) Landlord and Tenant will each promptly choose one
disinterested real estate appraisal firm of recognized competence in
the greater Boston area to perform an appraisal. Each appraisal will
determine the fair market rental of the Premises, taking into account
the quality, size, configuration, Building amenities, available
parking, the location of the Building and the Premises (including,
without limitation, the Building's proximity and access to Route 128),
and the then current market rental rates for comparable office space in
the central Route 128 area. The two appraisers shall within ten (10)
days after the date of the later appointment appoint a third appraiser
satisfying the above qualifications. If the two appraisers cannot agree
on a third appraiser, they shall immediately apply to the President of
the Greater Boston Real Estate Board to select a third appraiser
satisfying the above qualifications. The third appraiser, however
selected, shall not have acted previously in any capacity for either
Landlord or Tenant. If either Landlord or Tenant fails to appoint an
appraiser within the allotted time, the single appraiser who has been
appointed shall determine the fair market rental value for the Premises
for the applicable Extension Period. Each party shall bear the costs of
its own appraiser and one-half of the cost of the third appraiser.
(ii) Within thirty (30) days after the selection of the third
appraiser, each of the appraisers shall submit its determination of the
fair market rental value for the Premises for the applicable Extension
Period to Landlord. None of the determinations shall be opened until
all have been submitted. The appraisal furthest from the middle
appraisal shall be excluded and the remaining two appraisals shall be
added together and their total divided by two; provided, however, that
if no appraisal is more than ten percent (10%) more or less than the
middle appraisal, then all three appraisals shall be added together and
their total divided by three. The resulting quotient shall be the fair
market rental value for the Premises which is used to determine the
Extension Rent for the applicable Extension Period.
(d) Notwithstanding any contrary provision of this Section 2.3 or any
other provision of this Lease, Tenant's rights to extend this Lease under this
Section 2.3 shall be void and of no effect unless on the date Tenant notifies
Landlord that it is exercising either extension option and on the date of
commencement of the applicable Extension Period (i) this Lease is in full force
and effect, (ii) Tenant is not in default of any of its obligations under this
Lease beyond any applicable cure periods, (iii) Tenant has neither assigned this
Lease nor sublet fifty percent (50%) or more of the Premises (except for
Permitted Transfers), and (iv) Tenant is occupying at least fifty percent (50%)
of the Premises; provided, however, that Landlord reserves the right to waive
the provisions of this subsection 2.3(c). The conditions described in the
preceding subparagraphs (i) through (iv) are hereinafter referred to
collectively as the "Exercise Conditions".
2.4 Right of First Offer.
If, at any time during the Term of this Lease, Landlord constructs an
office building on the existing parking lot for the Building which is located
across Second Avenue from the Building (the "Adjacent Lot"), and if Landlord
intends to submit a proposal or proposals to third parties for the purpose of
leasing all or any portion of such building, provided Tenant then satisfies the
Exercise Conditions, Landlord shall first offer (in writing) to lease up to the
entire rentable area of such building to Tenant on any terms and conditions
determined by Landlord. Tenant may accept Landlord's offer as to the entire
rentable area of such building or as to a portion of such building, provided
that such portion shall constitute at least fifty percent (50%) and not more
than seventy-five percent (75%) of the rentable area of such building. If Tenant
shall not have accepted such offer within thirty (30) days of the date of any
such offer, the offer shall conclusively be deemed to have been rejected by
Tenant; thereafter, Landlord shall be free to submit proposals, offer to lease
and to lease all or any portion of the proposed building to other parties on any
terms and conditions determined by Landlord, and this Section 2.4 shall have no
further force and effect. In the event that ▇▇▇▇▇▇ has timely accepted
▇▇▇▇▇▇▇▇'s offer as to less than the entire rentable area of the proposed
building, this Section 2.4 shall have no further applicability to the balance of
space in the proposed building. In addition, notwithstanding any contrary
provision of this Section 2.4 or any other provision of this Lease, Tenant's
rights under this Section 2.4 shall be void and of no further force and effect
if Tenant fails to satisfy the Exercise Conditions as of the date of Landlord's
offer of space in the proposed building to Tenant or as of the commencement date
of Tenant's lease of space in the proposed building.
If ▇▇▇▇▇▇ accepts ▇▇▇▇▇▇▇▇'s offer to lease space in the proposed
building, ▇▇▇▇▇▇ shall execute and deliver to Landlord a lease for such space
using the terms of this Lease (except as necessary to incorporate the terms set
out in Landlord's offer) within thirty (30) days of receipt of the lease from
Landlord. If Tenant fails to do so, the Landlord shall thereafter be free to
submit proposals, offer to lease and to lease all or any portion of the proposed
building to other parties as provided above and this Section 2.4 shall have no
further force and effect.
The right of first offer set out in this Section 2.4 shall terminate if
Landlord agrees to sell, transfer, convey or ground lease the Adjacent Lot
separately from the Building to an unrelated third party. In such event the
provisions of this Section 2.4 shall automatically terminate, and from and after
the date of any such sale, transfer, conveyance, or ground lease, Tenant shall
have no rights in and to the First Offer Space or the Adjacent Lot.
2.5 Expansion Option.
Tenant shall have the right to lease from Landlord additional space on
the first floor of the Building consisting of approximately 10,000 rentable
square feet of space (in a single block of space) to be designated by Landlord
(the "First Floor Expansion Space"), provided that (i) on or before the date
that is one hundred twenty (120) days after the Commencement Date for the Phase
I Premises, Tenant shall give Landlord written notice of its election to lease
the First Floor Expansion Space, and (ii) at the time of such notice and on the
Commencement Date for the First Floor Expansion Space, Tenant satisfies the
Exercise Conditions, Tenant hereby agreeing that if Tenant fails to satisfy the
Exercise Conditions as of the date of such notice, or as of the Commencement
Date for the First Floor Expansion Space, Tenant's rights under this Section 2.5
shall expire and be of no further force and effect. Upon receipt of any such
notice, Landlord and ▇▇▇▇▇▇ will prepare plans for the First Floor Expansion
Space and Landlord shall improve the First Floor Expansion Space using the
construction procedures described in Section 4.1, and the Tenant Allowance and
occupancy procedures described in Sections 4.2 and 4.3. The Commencement Date
for the First Floor Expansion Space shall be the earlier to occur of (i) the
date on which the First Floor Expansion Space is Ready for Occupancy, as such
term is defined in Section 2.2, or (ii) the date on which Tenant begins to
conduct business operations in any portion of the First Floor Expansion Space.
Upon the Commencement Date for the First Floor Expansion Space, the
First Floor Expansion Space will be included as part of the Premises, and the
Tenant's Percentage, Base Rent, Rentable Square Feet in the Premises and
Tenant's Parking Spaces will be appropriately increased.
2.6 Confirmation of Expiration of ▇▇▇▇▇▇'s Rights Under Article 2.
In the event any of the rights granted to Tenant under Sections 2.3,
2.4 or 2.5 expire and become of no further force and effect, ▇▇▇▇▇▇ hereby
agrees to furnish Landlord with an affidavit or certificate confirming the
expiration of any such right within twenty (20) days of a written request
therefor from Landlord. Should the Tenant fail to furnish any such certificate
or affidavit within such twenty (20) day period, Landlord may send a second
request and if Tenant fails to furnish any such certificate or affidavit within
ten (10) days after such second request, Tenant hereby irrevocably designates
and appoints Landlord as its attorney-in-fact to execute such certificate or
affidavit in the name of Tenant.
ARTICLE 3 RENT
3.1 Base Rent and Additional Rent.
Tenant shall pay one-twelfth (1/12th) of the Base Rent each month in
advance on the first day of each calendar month during the Term. For any partial
month at the beginning or end of the Term (or at the time Tenant takes occupancy
of additional Phases, including the First Floor Expansion Space), Tenant shall
pay a proportional share of the amount that would be due for a full month and
with respect to a partial month at the beginning of the Term, or upon delivery
of any additional Phase, Tenant shall pay such proportional share on the
applicable Commencement Date. In addition to the Base Rent, Tenant shall pay all
additional rent and rental adjustments provided herein at the times set forth
herein, or if no time for payment is specified, then payment shall be made
within thirty (30) days after ▇▇▇▇▇▇'s receipt of an invoice from Landlord or
another billing authority. All payments shall be made to Landlord at Landlord's
Address or such other place as Landlord may designate in writing, without prior
demand and without deduction or offset except as may be specifically set forth
herein. Tenant shall not pay, and Landlord shall not accept, any rental payment
more than one month in advance.
3.2 Adjustment for Operating Expenses.
(a) Tenant shall pay, as additional rent, ▇▇▇▇▇▇'s Share of Expenses
for the Property.
(b) For each Fiscal Year during the Term, ▇▇▇▇▇▇'s Share of Expenses
shall consist of the excess of (i) Tenant's Percentage of the total Operating
Expenses for the Property for that Fiscal Year over (ii) the Expense Stop. For
any partial Fiscal Year at the beginning or end of the Term, ▇▇▇▇▇▇'s Share of
Expenses shall be adjusted proportionately for the part of the Fiscal Year
falling within the Term. Tenant's Percentage may change if the Building is
changed or reconfigured, but shall in all cases be equal to the percentage that
the Rentable Square Feet in the Premises bears to the total rentable square
footage in the Building, calculated on a consistent basis.
(c) Before each Fiscal Year, Landlord shall give Tenant an estimate of
the expected Operating Expenses for the Property for the coming Fiscal Year, and
a calculation of the estimated amount of Tenant's Share of Expenses. Tenant
shall pay one-twelfth of the estimated amount of Tenant's Share of Expenses each
month with its payment of Base Rent. After the end of each Fiscal Year, Landlord
shall give Tenant a statement showing the actual Operating Expenses for that
Fiscal Year, and a calculation of the actual amount of Tenant's Share of
Expenses. Any underpayment by Tenant shall be made up by cash payment to
Landlord within thirty (30) days; any overpayment shall be paid to Tenant within
thirty (30) days at Landlord's option, or shall be credited against the next due
Base Rent, provided that any overpayment shall be paid in cash to Tenant within
thirty (30) days if the Term has ended. No delay by Landlord in providing any
such statement shall be deemed a waiver of Tenant's obligation to pay Tenant's
Share of Expenses. Tenant shall have the right, upon not less than 10 business
days' notice, to inspect, audit and copy during usual business hours those
portions of the books and records kept by Landlord, relating in each case to
costs and expenses for which ▇▇▇▇▇▇ has responsibility hereunder. Landlord shall
maintain all books and records, including contracts, invoices and other similar
evidence of expenditures, for at least 5 years after the end of the relevant
fiscal year. Tenant may seek reimbursement of its share of any Operating Expense
which it contests within twelve (12) months after the delivery of the annual
statement of expenses for the year in which Operating Expenses were incurred (or
within twelve (12) months of delivery of any supplemental or corrected
statement, with respect to the supplemental information or corrected items.) In
the absence of written notice to Landlord objecting to any particular expense
within twelve (12) months after delivery of the annual statement of expenses,
any right of Tenant to contest or seek reimbursement for Operating Expenses
incurred in the period covered by such statement shall be deemed irrevocably
waived. Nothing contained herein shall entitle Tenant to offset or withhold any
Base Rent or additional rent on account of any Operating Expenses which it
contests. Landlord agrees that, except to the extent Landlord subsequently
receives bills or invoices, any correction or adjustment of its calculations of
Operating Expenses for any year will occur not later than twelve (12) months
after delivery of the annual statement of expenses for such year.
(d) As used herein, the term "Fiscal Year" means any twelve-month
period selected by Landlord for operating purposes. Landlord may change its
Fiscal Year and interim accounting periods, so long as the periods so revised
are reconciled with prior periods in accordance with generally accepted
accounting principles.
(e) The term "Operating Expenses" means the total cost of operation of
the Property and shall include without limitation: (i) Taxes, as defined below;
(ii) all supplies, materials, labor, equipment, and utilities used in or related
to the operation, maintenance, and repair of the Property or any part thereof
(including without limitation, any operating costs incurred by Landlord in
connection with the Building's cafe but not including the costs of initially
constructing such cafe or the costs of personnel, food and supplies, rent
subsidies, and provided that such cafe is not leased to a third party for profit
by Landlord or operated for profit by Landlord); (iii) all maintenance,
management, janitorial, legal, accounting, insurance, and service agreement
costs related to the Property or any part thereof, including, without
limitation, service contracts with independent contractors; (iv) assessments and
charges incurred by Landlord under any declaration of covenants, easements,
conditions or restrictions affecting the Property, and (v) costs (including
financing charges) of improvements to the Property that are designed to increase
safety, improve energy efficiency or otherwise reduce Operating Expenses, or are
required to comply with legal requirements imposed after the initial completion
of the Building, all such improvements to be amortized in accordance with
generally accepted accounting principles. Any of the above services may be
performed by Landlord or its affiliates, provided that fees for the performance
of such services shall be reasonable and competitive with fees charged by
unaffiliated entities for the performance of such services in comparable
buildings in the area. Operating Expenses shall not include (1) legal fees,
brokerage commissions, advertising costs, or other related expenses incurred by
Landlord in connection with the leasing of space to individual tenants in the
Property; (2) repairs, alterations, additions, improvements or replacements made
to rectify or correct any defect in the original design, materials or
workmanship of the Property or common areas (but not including repairs,
alterations, additions, improvements or replacements made as a result of
ordinary wear and tear); (3) damage and repairs attributable to fire or other
casualty; (4) damage and repairs necessitated by the negligence or willful
misconduct of Landlord, Landlord's employees, contractors or agents; (5)
executive salaries or salaries of service personnel to the extent that such
personnel perform services not solely in connection with the management,
operation, repair or maintenance of the Property; (6) Landlord's general
overhead expenses not related to the Property; (7) legal fees, accountants' fees
and other expenses incurred in connection with disputes with other tenants or
occupants of the Property or associated with the enforcement of the terms of any
leases with tenants or the defense of Landlord's title to or interest in the
Property or any part thereof; (8) costs (including permit, license and
inspection fees) incurred in renovating or otherwise improving, decorating or
painting or altering space for tenants or other occupants or of vacant space
(excluding common areas) in the Property; (9) damage to the Property caused by
another tenant of the Property; (10) cost of any service provided to Tenant or
other occupants of the Property for which Landlord is reimbursed; (11) except as
expressly provided above (improvements to increase safety, reduce Operating
Expenses, etc.) cost and expenses which would be capitalized under generally
accepted accounting principles, including without limitation any costs
associated with the base building work described in Exhibit F (whether or not
the same would be described in Subsection 3.2(e)(v)) and any costs associated
with any expansion of the Building or the construction of any structured parking
or other buildings on the Property; (12) building management fees in excess of
those charged by independent property managers; (13) costs incurred for any
hazardous waste cleanup attributable to waste which existed on the Property
prior to the Commencement Date for the Phase I Premises; (14) Landlord's debt
service payments (including principal payments), and (15) depreciation or other
non-cash charges. Landlord shall not collect in excess of one hundred percent
(100%) of Operating Expenses and shall not recover any item of cost more than
once. If the Building is less than 95% occupied in any Fiscal Year during the
Term, Operating Expenses shall be calculated as though the Building had been
fully assessed and 95% occupied, and the result shall constitute the Operating
Expenses for all purposes hereunder. If during all or part of any Fiscal Year,
Landlord is not performing or furnishing any item or service to any portion of
the Property (the cost of which, if performed or furnished by Landlord to such
portion of the Property, would constitute a part of Operating Expenses), on
account of (a) such item or service not being required or desired by a tenant,
or (b) any tenant obtaining or providing such item or service itself, or (c) any
other reason, then, Operating Expenses shall be deemed to be increased by an
amount equal to the additional costs and expenses which would reasonably have
been incurred during such period by Landlord if it had performed or furnished
such item or service to 95% of the Building.
(f) The term "Taxes" means any form of assessment, rental tax, license
tax, business license fee, levy, charge, penalty, tax or similar imposition,
imposed by any authority having the power to tax, including any city, county,
state or federal government, or any school, agricultural, lighting, library,
drainage or other improvement or special assessment district, as against the
Property or any part thereof or any legal or equitable interest of Landlord
therein, or against Landlord by virtue of its interest therein, and any
reasonable costs incurred by Landlord in any proceeding for abatement thereof,
including, without limitation, attorneys' and consultants' fees. Landlord's
income and franchise taxes shall not be included in Taxes. If Landlord obtains
an abatement of any Taxes relating to any period with respect to which Tenant
paid its share of Operating Expenses, Landlord agrees to recalculate Tenant's
share of Operating Expenses for such period and (provided Tenant is not then in
default of any of its obligations hereunder) refund any overpayment to Tenant.
The provisions of this Section shall survive the expiration or earlier
termination of this Lease.
ARTICLE 4 CONSTRUCTION
4.1 Leasehold Improvements by Landlord.
(a) Subject to Landlord's acquisition of the Property and receipt of
all required permits and approvals, Landlord shall, at its sole cost and
expense, rehabilitate the Building for use as a first-class office building
comparable to other first-class office buildings in the Waltham area (including
the installation of a card access security system for the Common Areas of the
Building), and shall perform all work necessary for delivery of the Premises as
"shell space", based on the outline specifications and schematic drawings
attached as Exhibit F (the "Project"). Tenant agrees that Exhibit F is
descriptive of the general layout and level of finish for the Project, is solely
schematic and is subject to refinement by Landlord provided that such
refinements do not materially increase the costs of the Leasehold Improvements.
Without limitation, Landlord may select the materials to be used on all exterior
surfaces of the Building, provided that the exterior walls will consist of glass
curtain walls in lobby atrium areas and masonry (either brick or precast
concrete) in the balance of the Building. Landlord shall also be responsible for
constructing, at its sole cost and expense, a demising wall between the Phase I
Premises and the subsequent Phases prior to the Commencement Date for the Phase
I Premises, and a demising wall between the Phase II Premises and the Phase III
Premises prior to the Commencement Date for the Phase II Premises. All expenses
incurred in connection with the construction of such demising walls shall be
borne by Landlord, and shall not be deducted from the Tenant Allowance, as such
term is herein defined. Tenant hereby confirms to Landlord that the power and
HVAC systems and services described in Exhibit F will be adequate to meet
Tenant's power and HVAC requirements, except to the extent Tenant has identified
in Exhibit G any area of the Premises that will require special power or HVAC
services (any special services will be included in "Improvement Cost" described
in Section 4.1(c) hereof). All construction by Landlord will be completed in a
good and workmanlike manner, using first class materials, in accordance with all
applicable laws, rules, ordinances and regulations.
(b) Landlord shall construct leasehold improvements in the Premises on
a Phase by Phase basis in the manner herein described. All such improvements are
herein referred to generally as the "Leasehold Improvements."
Tenant shall prepare, at its sole cost and expense, preliminary space
plans for each Phase, showing the general layout of the Phase, including the
location of offices and cubicles (the "Preliminary Plans"). Tenant shall submit
the Preliminary Plans to Landlord for its review on or before May 23, 1997 in
the case of the Phase I Premises, and within one hundred eighty (180) days prior
to the applicable Scheduled Commencement Date in the case of subsequent Phases
(or, if Tenant gives Landlord notice that it has elected to accelerate its
occupancy of the Phase II Premises or the Phase III Premises, simultaneously
with delivery of such notice). Tenant may include with such plans a list of
proposed subcontractors. Landlord agrees to include such subcontractors in the
competitive bid process described in subsection (c) below unless it objects to
any such subcontractor by notice to Tenant within ten (10) days of its receipt
of such list. Landlord shall review and price the Preliminary Plans, and shall
approve or disapprove such plans within ten (10) days of its receipt. Any
disapproval by ▇▇▇▇▇▇▇▇ will set out the reasons therefor. Tenant shall
thereupon revise the Preliminary Plans based on Landlord's comments (if
necessary) and shall resubmit the revised Preliminary Plans to Landlord within
twenty (20) days of Tenant's receipt of Landlord's notice.
Upon Landlord's and Tenant's agreement as to the final form of the
Preliminary Plans, Landlord's architect shall prepare and deliver to Tenant and
its consultants, for Tenant's approval (which approval shall not be unreasonably
withheld) the final architectural plans for the Leasehold Improvements to be
constructed in the Phase (the "Final Plans"), which Final Plans shall include,
without limitation a layout plan showing the general layout of the Phase and
partitions therein, a reflected ceiling plan, a telephone and electrical outlet
location plan, a list of equipment to be installed in the Phase, plans and
specifications for special millwork requirements, and mechanical, electrical and
plumbing plans. Tenant shall review such plans and approve or disapprove such
plans within ten (10) days of receipt. Any disapproval by ▇▇▇▇▇▇ will set out
reasons therefor. Landlord shall thereupon revise the Final Plans based on
▇▇▇▇▇▇'s comments (if necessary) and shall resubmit the revised Final Plans to
Tenant within twenty (20) days of Landlord's receipt of Tenant's notice. Any
failure by Tenant to approve, disapprove or comment on the Final Plans within
the time required under this subsection shall be deemed to be an approval by
Tenant of such plans.
Promptly after approval of the Final Plans by both parties and the
issuance of a building permit therefor, Landlord diligently shall cause the
Leasehold Improvements for the applicable Phase to be installed, in accordance
with the Final Plans, by ▇▇▇▇▇▇▇▇'s contractor in a first-class workmanlike
manner, unless a Change Order is made in accordance with the requirements set
forth below.
In the event Tenant desires to have the Leasehold Improvements
constructed other than as set forth in the Final Plans and Landlord and ▇▇▇▇▇▇
subsequently agree to a change in the Final Plans and any change in the
Improvement Cost resulting from such change, ▇▇▇▇▇▇▇▇'s contractor and Tenant
shall execute a written agreement concerning the scope of the revised work or
materials desired by Tenant and the cost of such work or materials (a "Change
Order"). All costs for labor, materials, and the general contractor's costs
(which shall be limited as set forth below) resulting from a Change Order,
including the cost of all plans prepared pursuant thereto (the "Change Order
Costs"), shall be included in the Tenant Allowance, as such term is defined in
Section 4.2 herein. Tenant hereby agrees that any delay by ▇▇▇▇▇▇ in approving
the Final Plans, or any request by Tenant for a Change Order will constitute
Tenant's agreement to a corresponding delay in the Scheduled Commencement Date
for the applicable Phase and a corresponding delay in the December 15 date
described in Section 2.2(c).
(c) The costs of the Leasehold Improvements (the "Improvement Cost")
shall be paid in the manner described in Section 4.2 and shall include the costs
incurred in preparing the Final Plans, Change Order Costs, permit and insurance
costs, payments to the contractor installing the Leasehold Improvements, and all
other costs incurred by Landlord in connection with its design or installation
of the Leasehold Improvements, but shall not include (i) the costs of
construction management services which shall be provided by Landlord at no cost
to Tenant, and (ii) the cost of professional interior design services, which, if
required, shall be provided by Tenant at Tenant's sole cost and expense. In
order to reduce the Improvement Cost, Tenant shall be permitted to install its
existing card access security system in the Premises, at its sole cost and
expense, in accordance with all applicable terms and conditions of this Lease,
provided that such security system is compatible with any card access security
system for the Building to be installed by Landlord. ▇▇▇▇▇▇▇▇ agrees that all
subcontractors will be subject to a competitive bid process, provided that
Tenant timely submits its Preliminary Plans and timely responds to Landlord's
request for approval of Final Plans, and further provided that Landlord reserves
the final right to select subcontractors, so long as Landlord has reasonable
cause for selecting any subcontractor which was not the low bidder. Landlord
hereby agrees that the costs of ▇▇▇▇▇▇▇▇'s general contractor attributed to
overhead, profit and general conditions shall not exceed the lesser of (x)
thirteen percent (13%) of the total Improvement Cost or (y) the amount
(expressed as a percentage of total construction costs) attributed to overhead,
profit and general conditions in the primary contract for the Landlord's
construction work described in Exhibit F.
(d) The Leasehold Improvements installed in each Phase shall be part of
the Premises and the sole property of Landlord. Within twenty (20) days after
the respective Commencement Date for each Phase, Tenant shall give Landlord a
"punch list" of any items needing correction; any matters not shown on the punch
list (except latent defects not discoverable by visual inspection) shall be
deemed approved by Tenant. Landlord shall promptly correct any items on such
list that, in Landlord's reasonable judgment, require correction. Except as set
forth herein, Landlord shall have no obligation to improve any Phase.
4.2 Tenant Allowance.
Landlord hereby grants Tenant an allowance in the amount of up to
twenty-three dollars ($23.00) per rentable square foot of each Phase (the
"Tenant Allowance"). To the extent that the Improvement Cost for any Phase
exceeds the Tenant Allowance for such Phase, Tenant shall, on the Phase I
Commencement Date (and on the commencement date for each subsequent phase),
reimburse Landlord the full amount of such excess costs ("Tenant's T.I.
Payment") as additional rent. Prior to each commencement date Landlord will give
notice to Tenant of any such excess, which notice shall be accompanied by an
itemization, in reasonable detail, of the components of Improvement Cost.
Notwithstanding the foregoing, to the extent Landlord holds back retainage from
its contractor which relates to unfinished items of Leasehold Improvements,
Tenant may hold back a corresponding portion of Tenant's T.I. Payment and will
pay such amount to Landlord within three (3) business days after notice from
Landlord that it intends to pay such holdback to its contractor. If the full
amount of the Tenant Allowance is not used in connection with the installation
of the Leasehold Improvements in any Phase, Tenant may use any remaining portion
of the Tenant Allowance allocable to such Phase for any future Phase. Tenant
will have no rights to use any portion of the Tenant Allowance which remains
unused after completion of all Phases (including the Expansion Premises, for so
long as Tenant has rights thereto under this Lease).
4.3 Tenant's Occupancy.
Landlord agrees that Tenant and its contractors shall have the right of
access to each Phase for purposes of installing, at the Tenant's sole cost and
expense, wiring, cabling and furnishings in such Phase during the fourteen (14)
day period preceding each applicable Commencement Date upon the following terms
and conditions:
(a) The Tenant coordinates the scheduling of the Tenant's early
access activities with the Landlord's general contractor so as
not to interfere with or delay the completion of the Leasehold
Improvements by the Landlord's general contractor;
(b) The Tenant's use and occupancy of each Phase prior to the
applicable Commencement Date shall be upon all of the terms
and conditions of the Lease, except that no Base Rent or
additional rent shall be due or payable with respect to such
period.
4.4 Alterations by ▇▇▇▇▇▇.
(a) Tenant shall not make any alterations, decorations, additions,
installations, substitutes or improvements ("Alterations") in and to the
Premises, without first obtaining Landlord's written consent, which consent
Landlord shall not unreasonably withhold or delay, except that Tenant may
undertake any non-structural Alteration which does not affect the Building's
systems or areas outside the Premises and which costs not more than twenty-five
thousand dollars ($25,000) in individual instances and not more than fifty
thousand dollars ($50,000) in the aggregate in any twelve (12) month period.
Notwithstanding the foregoing, Tenant shall have no right to undertake and
Landlord shall have no obligation to consent to Alterations that would or could,
in Landlord's reasonable judgment (i) violate the Certificate of Occupancy for
the Premises or the terms of any superior lease or mortgage affecting the
Property, (ii) materially and adversely affect the appearance, value, or
structure of the Building, (iii) require excessive removal expenses, (iv)
materially and adversely affect any other part of the Building or affect the
mechanical, electrical, sanitary or other service systems of the Building, (v)
involve the installation of any materials subject to any liens or conditional
sales contracts or (vi) require unusual expense to readapt the Premises to
ordinary office use on expiration or termination of this Lease. Tenant shall pay
Landlord's reasonable costs of reviewing or inspecting any proposed Alterations.
(b) All work on any Alterations shall be done at reasonable times in a
first-class workmanlike manner, by contractors approved by Landlord, according
to plans and specifications approved by Landlord. All work shall be done in
compliance with all applicable laws, regulations, and rules of any government
agency with jurisdiction, and with all regulations of the Board of Fire
Underwriters or any similar insurance body or bodies. Tenant shall be solely
responsible for the effect of any Alterations on the Building's structure and
systems, whether or not Landlord has consented to the Alterations. Upon
completion of any Alterations, Tenant shall provide Landlord with a complete set
of "as-built" plans, unless Tenant requests in writing that Landlord waive such
requirement, which waiver Landlord will not unreasonably withhold.
(c) Tenant shall keep the Property and ▇▇▇▇▇▇'s leasehold interest
therein free of any liens or claims of liens, and shall discharge any such liens
within ten days of their filing. Before commencement of any work, ▇▇▇▇▇▇'s
contractor shall provide any completion and lien indemnity bond required by
Landlord (only for work which costs twenty five thousand dollars ($25,000) or
more), and Tenant shall provide evidence of commercial general liability
insurance with such limits as Landlord may reasonably require, naming Landlord
as an additional insured, and evidence that each contractor and subcontractor
carries worker's compensation insurance in statutory amounts covering all of its
employees. Tenant shall indemnify Landlord and hold it harmless from and against
any cost, claim, or liability arising from any work done by ▇▇▇▇▇▇. All of
Tenant's work shall (i) be performed in such manner as not to interfere with the
occupancy of any other tenant in the Building nor delay, or impose any
additional expense upon Landlord in, the construction, maintenance or operation
of the Building, and (ii) be coordinated with any work being performed by
Landlord and in such manner as to maintain harmonious labor relations and not
cause any work stoppage or damage the Building or Lot or interfere with Building
construction or operation. Landlord may post any notices it considers necessary
to protect it from responsibility or liability for any Alterations, and Tenant
shall give sufficient notice to Landlord to permit such posting.
(d) All Alterations affixed to the Premises shall become part thereof
and remain therein at the end of the Term. However, if Landlord gives Tenant a
notice to remove any Alterations at the time any Alterations are affixed (or
proposed to be affixed), Tenant shall do so and shall pay the cost of removal
and any repair required by such removal. Any Alterations not affixed to the
Premises and all of Tenant's personal property, trade fixtures, equipment,
furniture, and movable partitions shall remain Tenant's property, removable at
any time. The moveable supplemental air conditioning units expected to be
purchased as part of the initial tenant improvements may be removed by Tenant at
the end of the Term if the aggregate Improvement Cost for all Phases exceeded
the total Tenant Allowance by an amount which is at least equal to Landlord's
costs of purchasing such units, and Tenant paid such excess as required under
Section 4.2 hereof. If Tenant fails to remove any such materials at the end of
the Term, they shall be deemed to have been abandoned and Landlord may remove
and store them at Tenant's expense, without liability to Tenant, and may sell
them at public or private sale and apply the proceeds to any amounts due
hereunder, including costs of removal, storage and sale.
ARTICLE 5 LANDLORD'S OBLIGATIONS AND RIGHTS
5.1 Services Furnished by Landlord.
(a) Landlord shall furnish services, utilities, facilities and supplies
equal in quality to those customarily provided by landlords in first-class
quality office buildings in the central Route 128 area. Such services,
facilities and supplies shall include the services described in this Section 5.1
and Section 5.2 and the following: (i) cleaning services for Building Common
Areas and the Premises, (ii) rubbish removal, (iii) window cleaning, (iv) rest
room supplies, (v) sewer and water service to the Building's rest rooms, (vi)
landscape maintenance, (vii) snow removal for walks, driveways and parking
areas, (viii) maintenance of plantings in interior Common Areas and, (ix) such
other services, utilities, facilities and supplies as are being provided by
other first-class office buildings in the central Route 128 area of comparable
size to the Building. In the event that Landlord is prevented or delayed from
providing any service, Landlord shall not be liable to Tenant therefor, nor
except as expressly otherwise provided in Section 8.1 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. Landlord also
reserves the right to institute such policies, programs and measures as may be
necessary, required or expedient for the conservation or preservation of energy
services or as may be required to comply with applicable laws, codes, rules,
regulations or standards.
(b) Subject to the provisions of Sections 5.1(a) and 6.10 Landlord
shall furnish space heating and cooling as normal seasonal changes may require
to provide reasonably comfortable space temperature and ventilation for
occupants of the Premises under normal business operation, daily from 8:00 a.m.
to 6:00 p.m. (Saturdays from 9:00 a.m. to 1:00 p.m.), Sundays and holidays
excepted. If Tenant shall require air-conditioning or ventilation outside the
hours and days above specified, Landlord shall furnish such service at Tenant's
expense (such expense will be calculated using a method reasonably determined by
Landlord to reflect actual electric, maintenance and other expenses and
management costs incurred by Landlord in providing such service). In the event
Tenant introduces onto the Premises equipment which overloads the systems,
and/or in any other way causes the systems not adequately to perform their
proper functions, supplementary systems may at Landlord's option be provided by
Landlord at Tenant's expense.
(c) Subject to the provisions of Sections 5.1(a) and 6.10 Landlord
shall provide electric power for normal lighting and office machine use.
Tenant's use of electrical energy in the Premises shall not at any time exceed
the capacity of any of the electrical conductors or equipment in or otherwise
serving the Premises. In order to ensure that such capacity is not exceeded and
to avert possible adverse effect upon the Building electric service, Tenant
shall not, without prior consent of Landlord in each instance, connect to the
Building electric distribution system any fixtures, appliances or equipment
which operate on a voltage in excess of 120 volts nominal or make any alteration
or addition to the electric system of the Premises. Landlord, at its option and
at Tenant's expense, may require separate metering and billing to Tenant for the
electric power required for any special equipment (such as computers and
reproduction equipment) that require either 3-phase electric power or any
voltage other than 120.
(d) Landlord will construct and maintain during the term hereof a cafe,
as approximately shown and described on Exhibit F, for employees and visitors of
tenants in the Building and others who may be permitted to use the cafe by
Landlord. The cafe will (except in unusual or unforeseen circumstances) be open
on all business days and will serve hot and cold luncheon meals.
(e) Landlord shall furnish, at Tenant's expense, reasonable additional
Building operation services which are usual and customary in similar office
buildings in the central Route 128 area upon reasonable advance request of
Tenant at reasonable and equitable rates from time to time established by
Landlord; such charges, if any, shall be considered to be additional rent.
5.2 Repairs and Maintenance.
Landlord shall repair and maintain the Common Areas and the roof,
exterior walls and structural portions of the Building and the basic plumbing,
electrical, mechanical and heating, ventilating and air-conditioning systems
therein, unless such repair or maintenance is attributable to any action of
Tenant or any matter for which Tenant is responsible under the provisions of
Section 6.5 hereof.
5.3 Quiet Enjoyment.
Upon ▇▇▇▇▇▇'s paying the rent and performing its other obligations,
Landlord shall permit Tenant to peacefully and quietly hold and enjoy the
Premises, subject to the provisions hereof.
5.4 Insurance.
Landlord shall insure the Property, including the Building, against
damage by fire and standard extended coverage perils, in the full replacement
cost thereof, and shall carry commercial general liability insurance. The amount
of liability insurance and the deductibles on property and liability policies
will be in such amounts as would be carried by a prudent owner of a similar
building in the area. Landlord may carry any other forms of insurance as it or
its mortgagee may deem advisable. Tenant shall have no right to any proceeds
from such policies. Landlord shall not carry any insurance on any of Tenant's
property, and shall not be obligated to repair or replace any of it.
Changes by Landlord
Landlord may at any time make any changes, additions, improvements,
repairs or replacements to the Property, including the Common Areas, that it
considers desirable and may lay pipes, conduits, wires and the like above the
ceiling or in the walls in the Premises, provided the same are not visible from
within the Premises. In so doing, Landlord may use or temporarily close any of
the Common Areas, or permanently change their configuration. Landlord shall
maintain access to the Premises and shall use reasonable efforts to minimize
interference with Tenant's normal activities, but no such interference shall
constitute constructive eviction or give rise to any abatement of rent or
liability of Landlord to Tenant.
5.6 Access to Premises; Utility Suspension.
Landlord shall have reasonable access to the Premises to inspect
▇▇▇▇▇▇'s performance hereunder and to perform any acts required of or permitted
to Landlord herein, and may temporarily stop any service or utility system in
conjunction therewith. Landlord shall use reasonable efforts to minimize
interference with ▇▇▇▇▇▇'s normal activities, but no such interference shall
constitute constructive eviction or give rise to any abatement of rent or
liability of Landlord to Tenant. Landlord shall at all times have a key to the
Premises, and Tenant shall not install any additional lock without Landlord's
consent. Any entry into the Premises by Landlord, under this section or any
other section of this Lease permitting such entry, shall be on reasonable
advance notice; provided, however, that such restriction shall not apply to any
situation that Landlord in good faith believes to be an emergency.
5.7 Failure to Provide Services and Repairs.
(a) Landlord shall not be liable for any failure to perform any act or
provide any service required hereunder unless Tenant shall have given notice of
such failure, and such failure continues for at least thirty days thereafter. If
any such failure is caused by factors beyond Landlord's reasonable control, then
Landlord shall not be liable to Tenant in any event. No such failure whether or
not within Landlord's reasonable control, shall constitute constructive eviction
or give rise to any rental abatement or reduction except as provided in
subsection 5.7(b) and (c), below. Except as specifically provided in Section
10.7, Tenant hereby waives any right to make repairs or provide maintenance at
Landlord's expense under any law or ordinance.
(b) In the event (i) Landlord fails to perform any act or provide any
service required hereunder and such failure occurs for reasons other than events
that are beyond Landlord's reasonable control or if Landlord undertakes work
described in Section 5.5 hereof which, for reasons other than events that are
beyond Landlord's reasonable control, results in interference with ▇▇▇▇▇▇'s use
and occupancy of the Premises; (ii) such failure or undertaking causes such
substantial interference with ▇▇▇▇▇▇'s use and occupancy that Tenant cannot use
the Premises for the conduct of its business, and (iii) such substantial
interference continues after notice from Tenant to Landlord in excess of ten
(10) consecutive days (other than for causes which are beyond Landlord's
reasonable control), Base Rent hereof shall be abated for the period from the
date of commencement of such substantial interference to the date on which such
substantial interference no longer exists; provided, however, that the
provisions of this subsection (b) shall not apply to occurrences governed by the
provisions of Sections 8.1 or 8.2 hereof.
(c) In the event that for reasons beyond Landlord's reasonable control,
Landlord (i) fails to perform any act or provide any service required hereunder,
or any undertaking described in Section 5.5 hereof results in interference with
▇▇▇▇▇▇'s use and occupancy of the Premises; (i) such failure or undertaking
causes such substantial interference with ▇▇▇▇▇▇'s use and occupancy that Tenant
cannot use the Premises for the conduct of its business, and (ii) such
substantial interference continues after notice from Tenant to Landlord in
excess of thirty (30) consecutive days, Base Rent shall be abated beginning on
the thirty-first (31st) consecutive day of such substantial interference and
continuing until the date on which such substantial interference no longer
exists; provided, however, that the provisions of this subsection (c) shall not
apply to occurrences governed by the provisions of Sections 8.1 or 8.2 hereof.
(d) In the event that (i) Landlord fails to perform any act or provide
any service required hereunder or undertakes any work described in Section 5.5
hereof, (ii) such failure or undertaking causes such substantial interference
with ▇▇▇▇▇▇'s use and occupancy that Tenant cannot use the Premises for the
conduct of its business and (iii) such substantial interference continues for
one hundred eighty (180) consecutive days, Tenant may, by written notice to
Landlord while such substantial interference continues, elect to terminate this
Lease. In such case this Lease will terminate on the date which is fifteen (15)
days after such notice unless such substantial interference is discontinued
prior to such date.
5.8 Inclusion of Costs in Operating Expenses.
Nothing in this Article shall be construed to modify the definition of
Operating Expenses, or otherwise amend the calculation of Operating Expenses.
5.9 Signs.
Landlord shall provide and install, at Landlord's expense with respect
to the first such installation and at Tenant's expense with respect to any
subsequent installation, letters or numerals on the door to the Premises to
identify ▇▇▇▇▇▇'s name and Building address; all such letters and numerals shall
be in the building standard graphics and no others shall be used or permitted on
the Premises. Landlord will include ▇▇▇▇▇▇'s name in a directory to be
maintained in the main and second floor lobbies of the Building.
In addition, Landlord shall install, at Tenant's sole cost and expense,
up to two (2) exterior wall signs on the Building, in accordance with the plans
and specifications to be delivered by Tenant to Landlord (the "Tenant's Wall
Signs"), provided that Tenant's Wall Signs and Tenant's monument sign (described
below) shall collectively comprise not more than sixty percent (60%) of the
allowable signage area for the Building. Landlord shall install the Tenant's
Wall Signs in accordance with all applicable laws, by-laws, ordinances and
codes; provided, however, that Tenant shall be responsible for obtaining all
permits and other governmental approvals required in connection with ▇▇▇▇▇▇▇▇'s
installation of the Tenant's Wall Signs. Landlord and Tenant agree that the
Tenant shall have exclusive signage rights in the area identified as the "Route
128 Exposure Area" on Exhibit E. Tenant's Wall Signs shall be in the most
prominent location of the exterior wall signs located on the Property. Tenant
shall also have the right, at its cost and expense, to a prominent,
non-exclusive presence (in proportion to the amount of space in the Building
occupied by each tenant) on the monument sign to be constructed by Landlord on
the Second Avenue side of the Building.
ARTICLE 6 TENANT'S COVENANTS
Tenant covenants until the end of the Term and for such further time as
Tenant occupies any part of the Premises:
6.1 Payments.
Tenant shall pay when due all Base Rent and all additional rent and
other charges of any kind hereunder.
6.2 Repair and Yield Up.
Tenant shall keep the Premises in good order and condition, and shall
promptly repair any damage to the Premises or the rest of the Property caused by
Tenant or its agents, servants, employees, or invitees, licensees or independent
contractors. Landlord may require such repair to be done by a contractor
designated by Landlord at Tenant's cost, provided that costs to be charged to
Tenant are reasonable and competitive. At the end of the Term, Tenant shall
peaceably yield up the Premises in good order, repair and condition, except for
reasonable wear and tear and any casualty damage for which Landlord has received
insurance proceeds. Tenant shall remove its own property and (if required by
Landlord) any Alterations, repairing any damage caused by such removal and
restoring the Premises and leaving them clean and neat. Nothing herein shall
require Tenant to remove the Leasehold Improvements.
6.3 Use.
(a) Tenant shall use the Premises only for the Permitted Uses, and
shall not use or permit the Premises to be used for any other purpose. Landlord
warrants that under the terms of its special permit issued by the Town of
Waltham, the Building may be used for the Permitted Uses. Tenant shall not use
or occupy the Premises in violation of: (i) any recorded covenants, conditions
and restrictions affecting the Property of which Tenant has been given notice by
Landlord, (ii) any law or ordinance or any Certificate of Occupancy issued for
the Building or the Premises, or (iii) any Rules and Regulations issued by
Landlord for the Building of which Tenant has been given a copy. Tenant shall
comply with any directive of any governmental authority with respect to ▇▇▇▇▇▇'s
use or occupancy of the Premises. Tenant shall not do or permit anything in or
about the Premises which will in any way damage the Premises, cause any noise to
emanate from the Premises, obstruct or interfere with the rights of other
tenants or occupants of the Building, or injure or annoy them, or use the
Premises or allow them to be used for any unlawful purpose. Tenant shall not
cause, maintain or permit any nuisance in, on or about the Premises, or commit
or allow any waste in or upon the Premises. Tenant shall not use utility
services in excess of amounts reasonably determined by Landlord to be within the
normal range of demand for the Permitted Uses.
(b) Tenant shall not obstruct any of the Common Areas or any
portion of the Property
outside the Premises, and shall not place or permit any signs, curtains, blinds,
shades, awnings, aerials or flagpoles, or the like, visible from outside the
Premises.
(c) Tenant shall keep the Premises equipped with all safety appliances
required by law because of any use made by Tenant other than ordinary office
use, and shall procure all licenses and permits required because of such use.
This provision shall not broaden the Permitted Uses.
(d) Tenant shall not place a load upon the floor of the Premises
exceeding the load per square foot such floor was designed to carry, as
determined by Landlord or its structural engineer. Partitions shall be
considered as part of the load. Landlord may prescribe the weight and position
of all safes, files and heavy equipment that Tenant desires to place in the
Premises, so as properly to distribute their weight. Tenant's business machines
and mechanical equipment shall be installed and maintained so as not to transmit
noise or vibration to the Building structure or to any other space in the
Building. Tenant shall be responsible for the cost of all structural engineering
required to determine structural load and all acoustical engineering required to
address any noise or vibration caused by Tenant.
(e) Tenant shall not keep or use any article in the Premises, or permit
any activity therein, which is prohibited by any insurance policy covering the
Building and Leasehold Improvements, or would result in an increase in the
premiums thereunder. In determining whether increased premiums are a result of
Tenant's activity, a schedule issued by the organization computing the insurance
rate on the Building or the Leasehold Improvements, showing the various
components of the rate, shall be conclusive evidence. Tenant shall promptly
comply with all reasonable requirements of the insurance authority or of any
insurer relating to the Premises. If the use or occupation of the Premises by
Tenant or by anyone Tenant allows on the Premises causes or threatens
cancellation or reduction of any insurance carried by Landlord, Tenant shall
remedy the condition immediately upon notice thereof. Upon ▇▇▇▇▇▇'s failure to
do so, Landlord may, in addition to any other remedy it has under this Lease,
enter the Premises and remedy the condition, at Tenant's cost, which Tenant
shall promptly pay as additional rent. Landlord shall not be liable for any
damage or injury caused as a result of such an entry, and shall not waive its
rights to declare a default because of Tenant's failure. 6.4 Assignment;
Sublease.
(a) Tenant shall not assign, mortgage, pledge or otherwise transfer
this Lease or make any sublease of the Premises, or permit occupancy of any part
thereof by anyone other than Tenant (any such act being referred to herein as a
"Transfer" and the other party with whom ▇▇▇▇▇▇ undertakes such act being
referred to herein as a "Transferee") without the prior written consent of
Landlord. Without limitation of the foregoing, Landlord may refuse consent to
any Transfer to any governmental authority or agency or to any Transfer which
would cause Landlord to be in violation of any mortgage on the Property or any
other agreement or instrument. In all other cases, ▇▇▇▇▇▇▇▇ agrees that it shall
not unreasonably withhold its consent to any proposed Transfer of the Premises
by ▇▇▇▇▇▇, pending Landlord's satisfactory review of the information to be
supplied by Tenant regarding the proposed Transferee's creditworthiness and
intended use of the Premises, and the compatibility of such use with the other
tenants and the character of the Building. Any request by Tenant for such
consent shall be in writing and shall include the name of the proposed
Transferee, the nature of its business and proposed use of the Premises,
complete information as to its financial condition, and the terms and conditions
of the proposed Transfer. Tenant shall supply such additional information about
the proposed Transfer and Transferee as the Landlord reasonably requests. Tenant
shall reimburse Landlord for its legal and other expenses in connection with any
request for consent. If Tenant is a corporation, partnership, or other business
organization, the transfer of ownership interests, whether in one transaction or
a series, forming a majority of the equity interests in Tenant, shall constitute
a Transfer, unless Tenant is a corporation whose stock is traded on an exchange
or over the counter. Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇'s consent will not
be required for the following "Permitted Transfers": (i) an assignment or
transfer of this Lease to an entity controlling or controlled by or under common
control with Tenant, provided that ▇▇▇▇▇▇ gives prompt notice of such assignment
to Landlord and in such case Tenant will remain fully liable on a joint and
several basis with the Transferee for all of Tenant's obligations hereunder, or
(ii) in the event Tenant is acquired by or merged into another entity, provided
that Tenant gives prompt notice thereof to Landlord and provides evidence to
Landlord that the net worth of the entity succeeding to Tenant's interest in
this Lease (measured after such acquisition or merger) is greater than the net
worth of Tenant at all times during the one-year period prior to the acquisition
or merger.
(b) Any Transfer shall specifically make applicable to the Transferee
all of the provisions of this Section so that Landlord shall have against the
Transferee all rights with respect to any further Transfer which are set forth
herein; no Transfer shall affect the continuing primary liability of Tenant
(which shall be joint and several with Transferee); no consent to any of the
foregoing in a specific instance shall operate as a waiver in a subsequent
instance; and no Transfer shall be binding upon Landlord or its successors,
unless Tenant shall deliver to Landlord a recordable instrument containing a
covenant of assumption by the Transferee running to Landlord and all persons
claiming by, through or under Landlord. The Transferee's failure to execute such
instrument shall not, however, release or discharge Transferee from its
liability as a Transferee hereunder. Tenant shall not enter into any Transfer
that provides for rental or other payment based on the net income or profits
derived from the Premises. With respect to any Transfer, Landlord shall be
entitled to receive fifty percent (50%) of all amounts received by Tenant in
excess of the Base Rent and additional rent reserved in this Lease applicable to
the space being Transferred, after deduction of all Tenant's reasonable
subleasing expenses, including without limitation, reasonable attorneys' fees,
brokerage commissions, tenant improvement expenses and free rent.
(c) Landlord Option.
(1) Right to Cancel. Notwithstanding any contrary provision of
this Section 6.4 in connection with any proposed Transfer, Landlord
shall have an option to cancel and terminate this Lease if the request
is to assign the Lease or to sublet all of the Premises; or, if the
request is to sublet a portion of the Premises only, to cancel and
terminate this Lease with respect to such portion. The foregoing shall
not apply to Permitted Transfers. Landlord may exercise said option in
writing within thirty (30) days after ▇▇▇▇▇▇▇▇'s receipt from Tenant of
a notice from Tenant that it intends to market the space to other
potential tenants (or, in the absence of such notice, within thirty
(30) days after ▇▇▇▇▇▇▇▇'s receipt from Tenant of a request to assign
or sublet), and in each case such cancellation or termination shall
occur as of the date set forth in Landlord's notice of exercise of such
option, which shall not be less than sixty (60) days nor more than
ninety (90) days following the giving of such notice.
(2) Cancellation. If Landlord exercises Landlord's option to
cancel this Lease or any portion thereof, Tenant shall surrender
possession of the Premises, or the portion thereof which is the subject
of the option, as the case may be, on the date set forth in such notice
in accordance with the provisions of this Lease relating to surrender
of the Premises at the expiration of the Term. If this Lease is
cancelled as to a portion of the Premises only, Base Rent after the
date of cancellation shall be abated on a pro rata basis.
(d) Any agreement by which ▇▇▇▇▇▇ agrees to enter into or execute any
Transfer at the direction of any other party, or assigns its rights in the
income arising from any Transfer to any other party, shall itself constitute a
Transfer hereunder.
(e) Any Transfer or attempted Transfer not in compliance with all of
the terms and conditions set forth above shall be void, and shall be a default
under this Lease.
(f) Notwithstanding any contrary provision of this Lease, Tenant shall
have no right to assign this Lease or sublet all or any portion of the Premises
and any such assignment or sublease shall be void unless on both (i) the date on
which Tenant notifies Landlord of its intention to enter into any assignment or
sublease and (ii) the date on which such assignment or sublease is to take
effect, Tenant is not in default of any of its obligations under this Lease;
provided, however, that Landlord shall retain the right to waive the provisions
of this Section 6.4(f).
(g) The acceptance by the Landlord of the payment of Rent, additional
rent or other charges following an assignment, subletting or other Transfer
prohibited by this Section 6.4 shall not be deemed to be a consent by the
Landlord to any such assignment, subletting or other Transfer, nor shall the
same constitute a waiver of any right or remedy of the Landlord.
6.5 Waiver and Indemnity.
Tenant shall indemnify Landlord and hold it harmless from and against
any cost, claim, action, liability or damage of any kind arising from (i)
Tenant's use and occupancy of the Premises or any activity done or permitted by
Tenant in, on, or about the Premises, (ii) any breach or default by Tenant of
its obligations under this Lease, or (iii) any negligent, tortious, or illegal
act or omission of Tenant, its agents, employees, invitees or contractors. The
foregoing shall not apply to loss or damage which is caused by other tenants in
the Building or by Landlord's negligence or willful misconduct. Tenant shall, at
its expense and with counsel satisfactory to Landlord, defend Landlord in any
action or proceeding arising from any such claim, and shall indemnify Landlord
against all costs and fees of any kind incurred therein. As a material
consideration to Landlord for executing this Lease, ▇▇▇▇▇▇ assumes all risk of
loss, damage or injury to any person or property in, on, or about the Premises
from any cause including, without limitation, theft. Specifically, and without
limitation of the foregoing, Landlord shall not be liable for injury or damage
which may be sustained by the person or property of Tenant, its employees,
invitees, or any other person in or about the Premises, caused by or resulting
from fire, steam, electricity, gas, water or rain which may leak or flow from or
into any part of the Premises, or from the breakage, leakage, obstruction, or
other defects of pipes, sprinklers, wires, appliances, plumbing,
air-conditioning or lighting fixtures, whether such damage or injury results
from conditions arising upon the Premises, any other portion of the Property, or
other sources. Landlord shall not be liable to Tenant or any other person or
entity for any damages arising from any act or omission of any other tenant of
the Building.
Landlord shall indemnify Tenant and hold it harmless from and against
any cost, claim, action, liability or damage of any kind arising from Landlord's
negligence or willful misconduct.
6.6 Tenant's Insurance.
(a) Tenant shall maintain the following insurance throughout the Term:
(i) "All Risk" or Special Form property insurance including, but not limited to,
fire, extended coverage, vandalism and malicious mischief coverage upon all
property owned by ▇▇▇▇▇▇ and located in the Building, in the full replacement
cost thereof; (ii) Commercial General Liability Insurance to include personal
injury, bodily injury, property damage liability (with a broadening
endorsement), premises/operations, blanket contractual liability, in limits not
less than Five Million Dollars ($5,000,000.00) per occurrence, inclusive, with a
deductible not to exceed One Hundred Thousand Dollars ($100,000.00); (iii)
Workers Compensation insurance with limits at least as required by applicable
law; (iv) Employers Liability insurance with limits of at least $1,000,000 each
accident, $1,000,000 each employee, and $1,000,000 policy limit for disease; and
(v) Business Interruption Insurance as presently carried by ▇▇▇▇▇▇. The Landlord
shall have the right from time to time to require additional insurance or
coverages or increase such minimum limits as Landlord may reasonably require,
upon notice to the Tenant.
(b) All policies shall be taken out with insurers acceptable to
Landlord, in form satisfactory to Landlord, and shall (i) include Landlord and
any mortgagee of Landlord as additional insureds, as their interests may appear,
(ii) contain a waiver of any right of subrogation against Landlord, its agents,
employees, and representatives which might arise for any reason, (iii) contain a
cross-liability endorsement, and (iv) contain a provision that any coverage
afforded thereby shall be primary and noncontributing with respect to any
insurance carried by Landlord, and any insurance carried by Landlord shall be
excess and noncontributing. Tenant shall provide certificates of insurance in
form satisfactory to Landlord before the Commencement Date, and shall provide
certificates evidencing renewal at least ten (10) days before the expiration of
any such policy. All policies shall contain an endorsement requiring at least
thirty (30) days' prior written notice to Landlord and any mortgagee of Landlord
prior to any material change, reduction, cancellation or other termination.
(c) Upon termination of this Lease pursuant to any casualty, Tenant
shall retain any proceeds attributable to Tenant's personal property and
Alterations not affixed to the Premises, but Tenant shall immediately pay to
Landlord any insurance proceeds received by Tenant relating to the Leasehold
Improvements and any Alterations affixed to the Premises unless Landlord has
required their removal.
6.7 Right of Entry.
Tenant shall permit Landlord and its agents to examine the Premises at
reasonable times and make any repairs or replacements Landlord deems necessary;
to remove, at Tenant's expense, any Alterations, signs, curtains, blinds or the
like not consented to by Landlord; and to show the Premises to prospective
tenants during the last twelve (12) months of the Term and to prospective
purchasers and mortgagees at all times.
6.8 Payment of Taxes
Tenant shall pay before delinquency all taxes levied against ▇▇▇▇▇▇'s
personal property or trade fixtures in the Premises and any Alterations
installed by Tenant. If any such taxes are levied against Landlord or its
property, or if the assessed value of the Premises is increased by the inclusion
of a value placed on Tenant's property, Landlord may pay such taxes, and Tenant
shall upon demand repay to Landlord the portion of such taxes resulting from
such increase. Tenant may bring suit against the taxing authority to recover the
amount of any such taxes, and Landlord shall cooperate therein. The records of
the City Assessor shall determine the assessed valuation, if available and
sufficiently detailed. If not so available or detailed, the actual cost of
construction shall be used.
6.9 Environmental Compliance.
Tenant shall not cause or allow any hazardous wastes, toxic substances
or toxic or hazardous materials (collectively, "Hazardous Materials") to be
used, generated, stored or disposed of on, under or about, or transported to or
from, the Premises (collectively, "Hazardous Materials Activities") without
first receiving Landlord's written consent, which may be withheld for any reason
and revoked at any time. If Landlord consents to any such Hazardous Materials
Activities, Tenant shall conduct them in strict compliance (at Tenant's expense)
with all applicable Regulations, as hereinafter defined, and using all necessary
and appropriate precautions. Landlord shall not be liable to Tenant for any
Hazardous Materials Activities by Tenant, Tenant's employees, agents,
contractors, licensees or invitees, whether or not consented to by Landlord.
Tenant shall indemnify, defend with counsel acceptable to Landlord and hold
Landlord harmless from and against any claims, damages, costs and liabilities
arising out of Tenant's Hazardous Materials Activities. For purposes hereof,
Hazardous Materials shall include but not be limited to substances defined as
"hazardous substances", "toxic substances", or "hazardous wastes" in the federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, the federal Hazardous Materials Transportation Act, as amended, and the
federal Resource Conservation and Recovery Act, as amended ("RCRA"), or any
other similar state, local or federal law; those substances defined as
"hazardous wastes" in the Massachusetts Hazardous Waste Facility Siting Act, as
amended (Massachusetts General Laws Chapter 21D); those substances defined as
"hazardous materials" or "oil" in Massachusetts General Laws Chapter 21E, as
amended; and as such substances are defined in any regulations adopted and
publications promulgated pursuant to said laws (collectively, "Regulations").
Prior to using, storing or maintaining any Hazardous Materials on or about the
Premises, Tenant shall provide Landlord with a list of the types and quantities
thereof, and shall update such list as necessary for continued accuracy. Tenant
shall also provide Landlord with a copy of any Hazardous Materials inventory
statement required by any applicable Regulations, and any update filed in
accordance with any applicable Regulations. If ▇▇▇▇▇▇'s activities violate or
create a risk of violation of any Regulations, Tenant shall cease such
activities immediately upon notice from Landlord. Tenant shall immediately
notify Landlord both by telephone and in writing of any spill or unauthorized
discharge of Hazardous Materials or of any condition constituting an "imminent
hazard" under RCRA. Landlord, ▇▇▇▇▇▇▇▇'s representatives and employees may enter
the Premises at any time during the Term to inspect Tenant's compliance
herewith.
Landlord shall indemnify and hold Tenant harmless from and against any
claims, damages, costs and liabilities arising out of the presence of any
concentrations of Hazardous Materials on the Property as of the date of this
Lease, which are identified in the ▇▇▇▇▇ & ▇▇▇▇▇▇▇ report for the Property,
dated January, 1997, or the report entitled "Asbestos-Containing Building
Materials Survey and Inspection at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇", prepared by
ATC Environmental, Inc., dated January, 1997.
6.10 Utilities
Tenant shall pay all charges for all separately metered and separately
billed gas, telephone and other utility services used, rendered or supplied upon
or in connection with the Premises and shall indemnify Landlord against any
liability or damage on such account.
Landlord shall install, at its sole cost and expense, a permanent
electric "check meter" measuring the consumption of electricity in the Premises,
which shall be read monthly by Landlord. Tenant shall pay to Landlord, as
additional rent, the costs of the electricity consumed in the Premises, as
reflected by the check meter, within thirty (30) days of billing therefor. In
the event that all or a portion of Tenant's electrical service becomes
separately metered and billed directly by the utility company to Tenant, Tenant
shall pay, as additional rent, all amounts so billed to the utility company when
due. Landlord agrees to use reasonable efforts, as of the date of deregulation
(anticipated to be January 1, 1998) to negotiate the price of electricity and
select the most cost effective electric utility service provider for the
Property.
ARTICLE 7 DEFAULT
7.1 Events of Default.
(a) The occurrence of any one or more of the following events shall
constitute a default hereunder by ▇▇▇▇▇▇:
(i) The failure by Tenant to make any payment of Base Rent or
additional rent or any other payment required hereunder, as and when
due, where such failure shall continue for a period of ten (10) days
after written notice thereof from Landlord to Tenant.
(ii) The failure by Tenant to observe or perform any
of the express or implied covenants or provisions of this
Lease to be observed or performed by Tenant, other than as
specified in clause (i) above, where such failure shall
continue for a period of more than ten (10) days after written
notice thereof from Landlord to Tenant; provided, however,
that if the nature of Tenant's default is such that more than
thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant shall
commence such cure within said thirty-day period and
thereafter diligently prosecute such cure to completion, which
completion shall occur not later than sixty (60) days from the
date of such notice from Landlord.
(iii) The failure by Tenant or any guarantor of any
of Tenant's obligations under this Lease to pay its debts as
they become due, or Tenant or any such guarantor becoming
insolvent, filing or having filed against it a petition under
any chapter of the United States Bankruptcy Code, 11 U.S.C.
Section 101 et seq. (or any similar petition under any
insolvency law of any jurisdiction), proposing any
dissolution, liquidation, composition, financial
reorganization or recapitalization with creditors, making an
assignment or trust mortgage for the benefit of creditors, or
if a receiver, trustee, custodian or similar agent is
appointed or takes possession with respect to any property or
business of Tenant or such guarantor.
(iv) The attachment, execution or other judicial
seizure of all or substantially all of Tenant's assets, or
this leasehold, or any other voluntary or involuntary
encumbrance of ▇▇▇▇▇▇'s leasehold interest hereunder.
(b) In the event of any such default by Tenant, whether or not the Term
shall have begun, in addition to any other remedies available to Landlord at law
or in equity, Landlord shall have the immediate option, or the option at any
time while such default exists and without further notice, to terminate this
Lease and all rights of Tenant hereunder; and Tenant shall then quit and
surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided.
7.2 Damages.
In the event that this Lease is terminated under any of the provisions
contained in Section 7.1 or shall be otherwise terminated for breach of any
obligation of Tenant, Tenant covenants to pay forthwith to Landlord, as
compensation, the excess of the total rent reserved for the residue of the Term
over the rental value of the Premises for said residue of the Term. In
calculating the rent reserved there shall be included, in addition to the Base
Rent and all additional rent, the value of all other considerations agreed to be
paid or performed by ▇▇▇▇▇▇ for said residue (excluding from such considerations
the Tenant's obligation to insure the Premises subsequent to the later of the
termination of the Lease or the date on which Tenant vacates the Premises).
Tenant further covenants as an additional and cumulative obligation after any
such termination to pay punctually to Landlord all the sums and perform all the
obligations which Tenant covenants in this Lease to pay and to perform in the
same manner and to the same extent and at the same time as if this Lease had not
been terminated. In calculating the amounts to be paid by Tenant under the
immediately preceding covenant Tenant shall be credited with any amount paid to
Landlord as compensation as in this Section 7.2 provided and also with the net
proceeds of any rent obtained by Landlord by reletting the Premises, after
deducting all Landlord's reasonable expenses in connection with such reletting,
including, without limitation, all repossession costs, brokerage commissions,
fees for legal services and expenses of preparing the Premises for such
reletting, it being agreed by Tenant that Landlord may (i) relet the Premises or
any part or parts thereof, for a term or terms which may at Landlord's option be
equal to or less than or exceed the period which would otherwise have
constituted the balance of the Term and may grant such concessions and free rent
as Landlord in its sole judgment considers advisable or necessary to relet the
same (provided that concessions and free rent will be amortized over the term of
the reletting for purposes of calculating the credit for reletting proceeds),
and (ii) make such alterations, repairs and decorations in the Premises as
Landlord in its sole judgment considers advisable or necessary to relet the
same, and no action of Landlord in accordance with the foregoing or failure to
relet or to collect rent under reletting shall operate or be construed to
release or reduce Tenant's liability as aforesaid.
In lieu of any other damages or indemnity and in lieu of full recovery
by Landlord of all sums payable under all the foregoing provisions of this
Section 7.2, Landlord may by written notice to Tenant, at any time after this
Lease is terminated under any of the provisions contained in Section 7.1 or is
otherwise terminated for breach of any obligation of Tenant and before such full
recovery, elect to recover, and Tenant shall thereupon pay, as liquidated
damages, an amount equal to the aggregate of the Base Rent and additional rent
accrued under Sections 3.1 and 3.2 in the 12 months ended next prior to such
termination plus the amount of Base Rent and additional rent of any kind accrued
and unpaid at the time of termination and less the amount of any recovery by
Landlord under the foregoing provision of this Section 7.2 up to the time of
payment of such liquidated damages.
Nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove for and obtain in proceedings for bankruptcy or insolvency by
reason of the termination of this Lease, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when, and governing the
proceedings in which, the damages are to be provided, whether or not the amount
be greater, equal to, or less than the amount of the loss or damages referred to
above.
ARTICLE 8 CASUALTY AND TAKING
8.1 Damage by Fire and Other Casualty.
If the Premises or the Building are damaged by fire or other casualty,
Landlord shall repair the damage, provided (a) such repairs can be made within
one hundred eighty days from the date of such damage ("Repair Period") under all
applicable laws and regulations using reasonable diligence, but without payment
of overtime or other premiums, and (b) insurance proceeds are made available to
Landlord in a timely manner for such repairs. In such event, this Lease shall
remain in full force and effect, but rent shall be proportionately abated while
the repairs are made, based on the extent of interference with ▇▇▇▇▇▇'s use of
the Premises (unless the damage was caused by the act or omission of Tenant or
its agents, employees, invitees or contractors).
If such repairs cannot be made within the Repair Period under the
conditions set forth above, Landlord shall so notify Tenant within thirty days
of the date of such damage. Thereupon, either party may terminate this Lease by
written notice given within twenty (20) days, such termination to be effective
thirty (30) days after the notice of termination. If neither party terminates,
Landlord shall repair the damage, and the Lease shall remain in force and
effect, subject to the rent abatement provisions set forth above.
If Landlord fails to commence such repairs within the Repair Period or
thereafter fails to diligently pursue such repairs to completion, subject to
delays of not more than sixty (60) days in the aggregate due to Force Majeure,
Tenant may terminate this Lease by written notice, and such termination will be
effective thirty (30) days after such notice unless Landlord substantially
completes such repairs prior to the end of such thirty (30) day period.
Landlord shall be not be required to repair any damage to the property
of Tenant or any Alterations. Nothing herein shall require Landlord to repair
any casualty occurring during the last six months of the Term.
8.2 Eminent Domain.
If any part of the Premises is taken or appropriated under the power of
eminent domain or conveyed in lieu thereof (hereinafter, "Taken"), which
materially affects Tenant's occupancy of the Premises, either party shall have
the right to terminate this Lease at its option. If any part of the Property
shall be Taken so as to materially affect the normal operation of the Building,
Landlord may terminate this Lease at its option. In either of such events,
▇▇▇▇▇▇▇▇ shall receive subject to the rights of Landlord's first mortgagee (and
Tenant shall assign to Landlord upon demand from Landlord), any income, rent,
award or any interest thereon which may be paid in connection therewith. Tenant
shall have no claim against Landlord for any part of the sums paid by virtue of
such proceedings, whether or not attributable to the value of the unexpired
Term. If a part of the Premises is Taken and neither party elects to terminate
this Lease, but the Premises have been damaged as a consequence thereof,
Landlord shall restore the remaining Premises at its cost. Landlord shall not be
required to repair or restore any damage to Tenant's property or any
Alterations. Thereafter, the rent for the remainder of the Term shall be
proportionately reduced, based on the degree of interference with ▇▇▇▇▇▇'s use
of the Premises. If the temporary use or occupancy of any part of the Premises
is Taken, this Lease shall be unaffected by such taking and Tenant shall
continue to pay all rent payable hereunder; Tenant shall be entitled to receive
that portion of any award which represents compensation for the use of or
occupancy of the Premises, and Landlord shall be entitled to receive that
portion which represents the cost of restoration of the Premises.
ARTICLE 9 RIGHTS OF PARTIES HOLDING PRIOR INTERESTS
9.1 Subordination.
This Lease shall be subject and subordinate to any mortgage now or
hereafter placed on the Lot or Building, or both, or any portion or portions
thereof, and to each advance made or hereafter to be made under any mortgage,
and to all renewals, modifications, increases, consolidations, replacements and
extensions thereof and all substitutions therefor. This Section 9.1 shall be
self-operative and no further instrument of subordination shall be required. In
conformation of such subordination, Tenant shall execute and deliver promptly
any certificate that Landlord or any mortgagee may request. In the event that
any mortgagee or its respective successor in title shall succeed to the interest
of Landlord, then, at the option of such mortgagee or successor, this Lease
shall nevertheless continue in full force and effect and Tenant shall and does
hereby agree to attorn to such mortgagee or successor and to recognize such
mortgagee or successor as its Landlord. Any mortgagee shall have the election to
subordinate its mortgage to this Lease, exercisable by sending a notice of such
election to Tenant, which notice may be recorded at the option of the mortgagee.
Notwithstanding the foregoing, Landlord shall obtain non-disturbance and
attornment agreements for Tenant from any current or future mortgagees.
9.2 Modification, Termination, and Cancellation.
No assignment of the 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, to relieve Tenant of any obligations or
liability under this Lease, shall be valid unless consented to by Landlord's
mortgagees of record, if any. No fixed rent, additional rent, or any other
charge shall be paid more than ten (10) days prior to the due date thereof and
payments made in violation of this provision shall (except to the extent that
such payments are actually received by a mortgagee) be a nullity as against any
mortgagee and Tenant shall be liable for the amount of such payments to such
mortgagee.
9.3 Rights of Mortgagee.
No act or failure to act on the part of Landlord which would entitle
Tenant, under the terms of this Lease or as a matter of law, to be released from
Tenant's obligations hereunder or to terminate this Lease shall result in a
release of such obligations or termination of this Lease unless ▇▇▇▇▇▇ first
gives written notice of and a specific description of Landlord's act or failure
to act to Landlord's mortgagees of record, if any, and such mortgagee fails to
cure such default within thirty (30) days after receipt of such notice. However,
if such cure reasonably requires more than thirty days to effect, such mortgagee
shall have such additional time as is reasonably necessary in the circumstances,
including time to take possession of the Property. This Section shall not impose
any obligation on any such mortgagee.
ARTICLE 10 MISCELLANEOUS
10.1 Financial Statements; Authority.
(a) Tenant represents and warrants that any financial statements
provided by it to Landlord were true, correct and complete when provided, and
that no material adverse change has occurred since that date that would render
them inaccurate or misleading. During the term, ▇▇▇▇▇▇ agrees to provide to
Landlord updated financial statements, in form reasonably acceptable to
Landlord, upon request (but not more frequently than once per quarter.) Tenant
agrees that in the event Tenant's corporate structure is altered through merger,
acquisition or the like, such that Tenant becomes a parent, division or
subsidiary of another corporate entity, any and all financial statements
delivered by Tenant pursuant to this Section will contain financial information
pertaining only to Tenant's operations and not to any such parent, division or
subsidiary.
(b) Tenant represents and warrants that those persons executing this
Lease on ▇▇▇▇▇▇'s behalf are duly authorized to execute and deliver this Lease
on its behalf, and that this Lease is binding upon Tenant in accordance with its
terms. If the Tenant is a corporation, each of the persons executing this
instrument on behalf of the Tenant, hereby covenant and warrant that the Tenant
is a duly existing and valid corporation and that the Tenant is qualified to do
business in Massachusetts. Further, if the Tenant is a corporation, the Tenant
shall deliver to the Landlord, at the time of execution of this Lease, a Clerk's
or Secretary's Certificate in the form attached hereto as Exhibit D (or other
suitable form satisfactory to counsel for the Landlord), as to the due
authorization of the execution of this Lease and incumbency of the signing
officer.
10.2 Notices.
Any notice required or permitted hereunder shall be in writing.
Communications shall be addressed to Landlord at Landlord's Address, with a copy
to Cabot, Cabot & Forbes, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: General
Counsel; and to Tenant at Tenant's Address. Any communication so addressed shall
be deemed duly given (i) when delivered by hand, (ii) when sent by facsimile
transmission, with a confirmation copy by regular mail, (iii) or when sent by
Federal Express (or other guaranteed one day delivery service) or (iv) three
days after being sent by registered or certified mail, return receipt requested.
Either party may change its address by giving notice to the other.
10.3 No Waiver or Oral Modification.
No provision of this Lease shall be deemed waived by Landlord or Tenant
except by a signed written waiver. No consent to any act or waiver of any breach
or default, express or implied, by Landlord or Tenant, shall be construed as a
consent to any other act or waiver of any other breach or default. Landlord's
failure to enforce any covenant or condition of this Lease shall not be deemed a
waiver thereof, and its failure to enforce any of the Rules and Regulations
against Tenant or any other tenant in the Building shall not be deemed a waiver
thereof. The receipt by Landlord of any rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach. This Lease
may not be changed or amended orally, but only by written instrument.
10.4 Acceptance of Partial Payments of Rent; Delivery of Keys.
No acceptance by Landlord of a lesser sum than the Annual Base Rent and
additional rent then due shall constitute a waiver of any claim to the remaining
balance nor 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 in
this Lease provided. 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 surrender of the Premises.
10.5 Cumulative Remedies.
▇▇▇▇▇▇▇▇'s remedies under this Lease are cumulative and not exclusive
of any other remedies to which Landlord may be entitled in case of ▇▇▇▇▇▇'s
breach or threatened breach of this Lease. Landlord shall be entitled to the
remedies of injunction and specific performance with respect to any such breach.
10.6 Partial Invalidity.
If any provision of this Lease, or the application thereof in any
circumstances, shall to any extent be invalid or unenforceable, the remainder of
this Lease shall not be affected thereby, and each provision hereof shall be
valid and enforceable to the fullest extent permitted by law.
10.7 Self-Help.
If ▇▇▇▇▇▇ fails to perform any obligation hereunder, Landlord may enter
the Premises and perform it on ▇▇▇▇▇▇'s behalf. In so doing, Landlord may make
any payment of money or perform any other act. All sums so paid by ▇▇▇▇▇▇▇▇, and
all incidental costs and expenses, shall be considered additional rent under
this Lease and shall be payable to Landlord immediately on demand, together with
interest at the rate of the lesser of three percentage points above the then
prevailing prime rate or reference rate ("Prime Rate") as set by The Chase
Manhattan Bank (USA), N.A. in its main office in New York, New York or the
maximum interest rate permitted by law.
If Landlord fails to perform any obligation hereunder, and such failure
continues for more than ten (10) days after written notice to Landlord, Tenant
may send a second notice to Landlord specifying the nature of such failure and
the action it proposes for Landlord to take to remedy such failure. If Landlord
has not commenced action to remedy such failure within ten (10) days after such
second notice, or thereafter fails to diligently proceed to complete such
action, Tenant may take reasonable action to remedy ▇▇▇▇▇▇▇▇'s failure and
Landlord will reimburse Tenant for the reasonable costs of such action expended
by ▇▇▇▇▇▇, promptly upon receipt of appropriate evidence of completion of the
work and payment by ▇▇▇▇▇▇. In no event will Tenant be permitted to offset or
deduct any amount owing to Tenant under this Section 10.7 against rent or any
other obligation of Tenant hereunder.
10.8 Tenant's Estoppel Certificate
Within twenty (20) days after written request by Landlord, Tenant shall
execute, acknowledge and deliver to Landlord a written statement certifying (a)
that this Lease is unmodified and in full force and effect, or is in full force
and effect as modified and stating the modifications; (b) the amount of Base
Rent and the date to which Base Rent and additional rent have been paid in
advance; (c) the amount of any security deposited with Landlord; and (d) that
Landlord is not in default hereunder or, if ▇▇▇▇▇▇▇▇ is claimed to be in
default, stating the nature of any claimed default, and (e) such other matters
as may be reasonably requested by Landlord. Any such statement may be relied
upon by a purchaser, assignee or lender. If Tenant fails to execute, acknowledge
and deliver such statement within such twenty (20) day period, Landlord may send
Tenant a second request for such statement, which request will provide that
failure to provide the statement will constitute a default under this Lease.
Tenant's failure to execute, acknowledge and deliver such statement within ten
(10) days after such second notice shall be a default under this Lease (for
which no further grace or cure period shall be applicable, notwithstanding
Section 7.1 hereof) and shall also be conclusive upon Tenant that (1) this Lease
is in full force and effect and has not been modified except as represented by
Landlord; (2) there are no uncured defaults in Landlord's performance and Tenant
has no right of offset, counterclaim or deduction against rent; and (3) not more
than one month's Base Rent has been paid in advance.
10.9 Waiver of Subrogation.
Landlord and Tenant each hereby waive all rights of recovery against
the other and against the officers, employees, agents, and representatives of
the other, on account of loss by or damage to the waiving party or its property
or the property of others under its control, to the extent that such loss or
damage is insured against under any insurance policy that either may have in
force at the time of the loss or damage or would have been insured against under
an insurance policy required to be maintained under the provisions of this
Lease. Each party shall notify its insurers that the foregoing waiver is
contained in this Lease.
10.10 All Agreements; No Representations.
This Lease contains all of the agreements of the parties with respect
to the subject matter hereof and supersedes all prior dealings between them with
respect to such subject matter. Each party acknowledges that the other has made
no representations or warranties of any kind except as may be specifically set
forth in this Lease.
10.11 Brokerage.
Tenant represents and warrants that it has not dealt with any real
estate broker or agent in connection with this Lease or its negotiation except
Brokers. ▇▇▇▇▇▇▇▇ agrees that it shall be responsible for any compensation,
commission or other amount due Brokers in connection with this transaction.
Tenant shall indemnify Landlord and hold it harmless from any cost, expense, or
liability (including costs of suit and reasonable attorneys' fees) for any
compensation, commission or fees claimed by any other real estate broker or
agent in connection with this Lease or its negotiation by reason of any act of
Tenant.
10.12 Successors and Assigns
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 obligations
accruing during the period of their respective ownership.
10.13 Submission Not an Option
The submission of this Lease or a summary of some or all of its
provisions for examination does not constitute a reservation of or option for
the Premises or an offer to lease, and it is not effective as a lease or
otherwise until the execution by and delivery to both Landlord and Tenant.
Applicable Law
This Lease shall be construed and enforced in accordance with the laws
of the Commonwealth of Massachusetts, without regard to its choice of law rules.
10.15 Waiver of Jury Trial.
Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other, on or in respect to any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant hereunder,
▇▇▇▇▇▇'s use or occupancy of the Premises, and/or claim of injury or damages.
10.16 Attorneys' Fees.
If either Landlord or Tenant institutes any action to enforce the
provisions of this Lease or to seek a declaration of rights hereunder, the
prevailing party shall be entitled to recover its reasonable attorneys' fees and
court costs as part of any award.
10.17 Surrender.
The voluntary or other surrender of this Lease by ▇▇▇▇▇▇, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, operate as an assignment to it of any or all subleases or
subtenancies.
10.18 Holdover
If Tenant holds over in occupancy of the Premises after the expiration
of the Term, Tenant shall become a tenant at sufferance only, at a rental rate
equal to one and one-half times the Base Rent in effect at the end of the Term,
plus the amount of Tenant's Share of Expenses then in effect, and otherwise
subject to the terms and conditions herein specified, so far as applicable, and
shall be liable for all damages sustained by Landlord on account of such holding
over. This Section shall not operate as a waiver of any right of reentry
provided in this Lease, and Landlord's acceptance of rent after expiration of
the Term or earlier termination of this Lease shall not constitute consent to a
holdover or result in a renewal. If ▇▇▇▇▇▇ fails to surrender the Premises upon
the expiration of the Term or earlier termination despite demand by Landlord to
do so, Tenant shall indemnify and hold Landlord harmless from all loss or
liability, including, without limitation, any claim made by any succeeding
tenant resulting from such failure.
10.19 Late Payment.
Tenant acknowledges that the late payment by Tenant to Landlord of any
sums due under this Lease will cause Landlord to incur costs not contemplated by
this Lease, the exact amount of such costs being extremely difficult and
impractical to fix. Therefore, if any Base Rent or other sum hereunder is not
paid within thirty (30) days of the due date, Tenant shall pay to Landlord, as
additional rent, the sum of three percent (3%) of the overdue amount as a late
charge. The overdue amount, if not received within ten days thereafter, shall
also bear interest, as additional rent, at the lesser of the Prime Rate plus
three percent (3%) or the maximum interest rate permitted by law, calculated
from the date the late charge becomes due until the date of payment to Landlord.
▇▇▇▇▇▇▇▇'s acceptance of any late charge or interest shall not constitute a
waiver of Tenant's default with respect to the overdue amount.
10.20 Time of Essence
Time is of the essence of this Lease. In the event that the time for
performance of any obligation hereunder, except the payment of Base Rent, falls
on a day other than a business day, the time for performance shall be extended
to the next business day. The term "business day" shall mean any day that is not
a Saturday, Sunday or a state or federal holiday on which office businesses in
Boston, Massachusetts are generally closed.
Force Majeure.
If Landlord or Tenant is prevented from or delayed in performing any
act required of it hereunder, and such prevention or delay is caused by strikes,
labor disputes, inability to obtain labor, materials, or equipment, inclement
weather, acts of God, governmental restrictions, regulations, or controls,
judicial orders, enemy or hostile government actions, civil commotion, fire or
other casualty, or other causes beyond such party's reasonable control
(collectively, "Force Majeure"), the performance of such act shall be excused
for a period equal to the period of prevention or delay. A party's financial
inability to perform its obligations shall in no event constitute Force Majeure.
Nothing in this section shall excuse or delay ▇▇▇▇▇▇'s obligation to pay any
rent or other charges due under this Lease.
10.22 Limitation On Liability
In consideration of the benefits accruing hereunder, Tenant hereby
covenants and agrees that, in the event of any actual or alleged failure, breach
or default hereunder by Landlord:
(a) The obligations of Landlord under this Lease do not constitute
personal obligations of the trustees, individual partners, directors, officers
or shareholders of Landlord, Landlord's beneficiary or any constituent partner
of Landlord's beneficiary, and Tenant shall not seek recourse against the
trustees, partners, directors, officers or shareholders of Landlord, Landlord's
beneficiary or any constituent partner of Landlord's beneficiary or any of their
personal assets for satisfaction of any liability with respect to this Lease;
(b) ▇▇▇▇▇▇'s sole and exclusive remedy shall be against the Landlord's
interest in the Property;
(c) Neither Landlord's beneficiary nor any constituent
partner of Landlord's beneficiary
shall be sued, named as a party in any suit or action, or served with process
therein (except if necessary to secure jurisdiction), and neither ▇▇▇▇▇▇▇▇'s
beneficiary nor any constituent partner of Landlord's beneficiary shall be
required to respond to any service of process;
(d) No judgment will be taken against ▇▇▇▇▇▇▇▇'s beneficiary nor any
constituent partner of Landlord's beneficiary, and no writ of execution will be
levied against the assets of Landlord's beneficiary or any such partner;
(e) These covenants and agreements are enforceable both by Landlord and
also by Landlord's beneficiary, any constituent partner of Landlord's
beneficiary and shall bind Tenant and its successors and assigns.
10.23 Recording.
The Tenant agrees not to record this Lease. At the request of either
party, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ agree that at the request of either party, they will
execute a Notice of Lease, in recordable form reasonably acceptable to both
parties.
10.24 Security Deposit
▇▇▇▇▇▇ agrees to deliver into escrow with Old Republic Title Insurance
Company ("Escrow Agent"), within two (2) business days after the execution and
delivery of this Lease by Landlord and Tenant, a certified check (payable to Old
Republic Title Insurance Company) or an irrevocable letter of credit (in a form
approved by Landlord) in the amount set forth in Section 1.1. Escrow Agent will
hold the funds or such letter of credit in escrow, to be delivered to Landlord
upon acquisition of the Property by Landlord. If Landlord does not acquire the
Property by the applicable Target Date and Landlord or Tenant terminates this
Lease in accordance with the provisions of Section 2.2 (b) hereof, the Escrow
Agent will return such funds or such letter of credit to Tenant, promptly after
the effective date of such termination. Any interest earned on funds held in
escrow will be paid to Tenant. The terms of such escrow will be as set out in
the supplemental escrow agreement attached hereto as Exhibit H. In addition, if
Tenant elects to exercise its rights with respect to the First Floor Expansion
Space, Tenant shall deliver to Landlord either (i) a certified check in an
amount equal to six (6) months' Base Rent attributable to the First Floor
Expansion Space, or (ii) if the initial security deposit delivered hereunder is
in the form of a letter of credit, a replacement letter of credit in a form
approved by Landlord in the combined amount of the security deposit set forth in
Section 1.1 and six (6) months' Base Rent attributable to the First Floor
Expansion Space. Such certified check or replacement letter of credit shall be
delivered to Landlord along with ▇▇▇▇▇▇'s notice of its election to lease the
First Floor Expansion Space. The initial security deposit delivered in
connection with the execution of this Lease, and the additional security
delivered in connection with the Tenant's exercise of its rights with respect to
the First Floor Expansion Space are collectively referred to herein as the
"Security Deposit".
Landlord shall hold the Security Deposit, throughout the Lease Term, as
security for the performance by Tenant of all obligations on the part of Tenant
to be kept and performed. Landlord shall have the right from time to time
without prejudice to any other remedy Landlord may have on account thereof, to
apply the Security Deposit, or any part thereof, to Landlord's damages arising
from any default on the part of Tenant. Upon such application, the amount so
applied shall be paid by Tenant to Landlord (or in the case of a letter of
credit, the letter of credit shall be restored) upon demand in order that the
Security Deposit may at all times be equal to the amount set forth in Section
1.1.
Provided Tenant is not then in default of any of its obligations
hereunder, Landlord shall return the Security Deposit, or so much thereof as
shall not have theretofore been applied in accordance with the terms of this
Section 10.24, to Tenant within thirty (30) days following the expiration or
earlier termination of the Lease Term and surrender of possession of the
Premises by Tenant to Landlord. In the event the Security Deposit delivered by
▇▇▇▇▇▇ is in the form of cash paid by a certified check, Landlord shall, unless
otherwise required by law and except as provided in the next sentence, have no
obligation to pay interest on the Security Deposit and shall have the right to
commingle the same with ▇▇▇▇▇▇▇▇'s other funds. ▇▇▇▇▇▇▇▇ agrees that if it
elects to hold the Security Deposit in a separate account, Landlord will pay to
Tenant (not less frequently than annually) any interest earned on the Security
Deposit; if Landlord holds the Security Deposit with its general operating funds
and earns interest on such funds, it will pay to Tenant (not less frequently
than annually) interest on the Security Deposit at the interest rate applicable
to such funds. If Landlord conveys Landlord's interest under this Lease, the
Security Deposit, or any part thereof not previously applied, may be turned over
by Landlord to Landlord's grantee, and, if so turned over, ▇▇▇▇▇▇ agrees to look
solely to such grantee for proper application of the Security Deposit in
accordance with the terms of this Section 10.24, and the return thereof in
accordance herewith. ▇▇▇▇▇▇ agrees that ▇▇▇▇▇▇ will not assign, encumber or
pledge, attempt to assign, encumber or pledge the moneys deposited herein as
security, and that neither Landlord, nor its successors and assigns, shall be
bound by any such assignment, encumbrance or pledge, attempted assignment,
attempted pledge, or attempted encumbrance.
If Tenant elects to deliver an irrevocable letter of credit as its
Security Deposit, such letter of credit shall be in a form reasonably acceptable
to Landlord and shall be drawn on a bank approved in writing by Landlord and
located in eastern Massachusetts. The letter of credit shall be addressed to
Landlord, shall permit partial draws, and shall be payable upon simple demand by
▇▇▇▇▇▇▇▇ accompanied by a sworn statement of an authorized officer or agent of
Landlord stating that the drawing represents amounts due to Landlord from Tenant
under this Lease following an event of default.
Such letter of credit will be issued for a term of not less than twelve
(12) months. Tenant shall furnish to Landlord a replacement letter of credit not
later than thirty (30) days prior to the expiration of the then-current letter
of credit and the final letter of credit shall not expire until thirty (30) days
after the end of the Term of the Lease. Failure by Tenant to deliver any
replacement letter of credit in the time provided shall be an immediate event of
default under this Lease and shall entitle Landlord to immediately draw upon the
letter of credit for the full amount of the Security Deposit. In such case,
Landlord will hold the net proceeds of any such drawing on the letter of credit
as a security deposit under this Section 10.24 (after deducting any amounts then
owed to Landlord hereunder and costs incurred by Landlord in connection with
such drawing).
EXECUTED as a sealed instrument in two or more counterparts on the day
and year first above written.
"Landlord"
CC&F Second Avenue Trust
By:/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
as Trustee
and not
individually
"Tenant"
Raptor Systems, Inc.
By:/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: VP, Treasurer
EXHIBIT A
PREMISES
Attach a copy of the Floor Plan showing the location of the Premises.
EXHIBIT B
PROPERTY DESCRIPTION
EXHIBIT C
NOTICE OF COMMENCEMENT DATE
To: Raptor Systems, Inc. Date: __________
Re: Lease dated ____________, 19__ between [Affiliate of CC&F], Landlord, and
Raptor Systems, Inc., Tenant, concerning the Premises (as defined in the
subject Lease) located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇.
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or confirm
as follows:
1. That the [Phase I Premises, Phase II Premises, Phase III Premises or
First Floor Expansion Space], as such premises are defined in the Lease (the
"Premises") have been accepted herewith by the Tenant as being substantially
complete in accordance with the subject Lease, and that there is no deficiency
in construction. Without limiting the foregoing, ▇▇▇▇▇▇'s execution of this
Notice shall constitute a specific acknowledgment and acceptance of the various
start-up inconveniences that may be associated with the use of the Common Areas
such as certain construction obstacles including scaffolding, delays in the use
of freight elevator service, certain elevators not being available to Tenant,
the passage of work crews using elevators, uneven air-conditioning service, and
other typical conditions incident to recently constructed office buildings.
Further, ▇▇▇▇▇▇'s execution of this Notice shall constitute an acknowledgment,
in light of the practical impossibility of ensuring that every floor slab has
been installed with absolutely no deflection, that all wood floor coverings,
wood paneling, and similar interior Leasehold Improvements have been and/or will
be designed to accommodate the actual floor slab deflection unique to each
particular area of the Premises to be so improved.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the subject Lease, the Commencement
Date with respect to the [Phase I Premises, Phase II Premises, Phase III
Premises or First Floor Expansion Space] is _______________________.
3. That in accordance with the subject Lease, the total actual Rentable
Square Feet in the Premises (including all previous space), as measured by
Landlord is ________ rentable square feet, Tenant's Parking Spaces are ________,
and Tenant's Percentage is ____________.
4. That in accordance with the subject Lease, Base Rent commenced to
accrue on _______________________, in the amount of $_______________.
5. If the Commencement Date with respect to the [Phase I Premises,
Phase II Premises, Phase III Premises or the First Floor Expansion Space] of the
subject Lease is other than the first day of the month, the first billing will
contain a pro rata adjustment. Each billing thereafter shall be for the full
amount of the monthly installment as provided for in said Lease.
6. Rent is due and payable in advance on the first day of each and
every month during the term of said Lease. Your rent checks should be made
payable to CC&F Second Avenue Trust, c/o Cabot, Cabot & Forbes, ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
AGREED AND ACCEPTED
"Tenant"
Raptor Systems, Inc.
By:________________________________
Its __________________________
"Landlord"
CC&F Second Avenue Trust
By:________________________________
As Trustee but not individually
EXHIBIT D
CLERK'S CERTIFICATE
I, [name of clerk], Clerk [Secretary] of [name of corporation], hereby
certify that the following is a true copy of a resolution of the board of
directors of this corporation adopted at a meeting duly called and held on
[date], a quorum being present and acting throughout, and that such resolution
has not been revoked, amended or modified and is in full force and effect:
VOTED: That the President [or other officer] be and is hereby
authorized, singly, to execute and deliver on behalf of this
corporation a lease between _______________________, as landlord , and
this corporation, as tenant, for approximately ____ rentable square
feet of office space in the landlord's building located at
______________________, Massachusetts, upon such terms and conditions
as the signing officer shall determine to be necessary or appropriate.
The signature of the President [or refer to other officer as
applicable] thereon shall conclusively evidence its approval by this
vote. This is to certify further that as of the date hereof
________________________
is the
President [or refer to other officer as applicable] of this corporation.
-----------------------------
Clerk [Secretary]
Dated: _____________, 19__
[SEAL]
EXHIBIT E
[ATTACH PLAN SHOWING ROUTE 128 EXPOSURE AREA]
9
EXHIBIT F
DESCRIPTION OF THE PROJECT
EXHIBIT G
TENANT'S SPECIAL POWER AND HVAC REQUIREMENTS
EXHIBIT H
SUPPLEMENTAL ESCROW AGREEMENT
We, the undersigned, do hereby jointly and severally agree that the
Escrow Agent, Old Republic National Title Insurance Company ("ORNTIC") shall
incur no liability whatsoever in connection with its good faith performance
under this Escrow Agreement, and do hereby jointly and severally release and
waive any claims we may have against ORNTIC, which may result from its
performance in good faith of its wire transfer of funds. ORNTIC shall be liable
only for loss or damage caused directly by its acts of negligence while
performing as Escrow Agent under this Escrow Agreement.
The Escrow Agent shall be entitled to rely upon authenticity of any
signature and the genuineness and validity of any writing received by Escrow
Agent relating to this Escrow Agreement. Escrow Agent may rely upon any oral
identification of a party notifying Escrow Agent or ally as to matters relating
to this Agreement if such oral notification is permitted thereunder. Escrow
Agent is not responsible for the nature, content, validity or enforceability of
any of the escrow documents except for those documents prepared by ORNTIC.
In the event of any disagreement between the parties hereto resulting
in conflicting instructions to, or adverse claims or demands upon the Escrow
Agent with respect to the release of the escrow funds or the escrow documents,
the Escrow Agent may refuse to comply with any such instruction, claim or demand
so long as such disagreement shall continue and in so refusing the Escrow Agent
shall not release the escrow funds or the escrow documents. The Escrow Agent
shall not be, or become liable in any way for its failure or refusal to comply
with any such conflicting instructions or adverse claims or demands and it shall
be entitled to continue to refrain from acting until such conflicting
instructions or adverse claims or demands (a) shall have been adjusted by
agreement and it shall have been notified in writing thereof by the parties
hereto; or (b) shall have been determined in a court of competent final
jurisdiction.
The Escrow Agent may, at its sole discretion, resign by giving thirty
(30) days written notice thereof to the parties hereto. The parties shall
furnish to the Escrow Agent written instructions for the release of the escrow
funds and escrow documents. If the escrow agent shall not have received such
written instructions within thirty (30) days, the Escrow Agent may petition any
court of competent jurisdiction for the appointment of a successor ▇▇▇▇▇▇ Agent
and upon such appointment deliver the escrow funds and escrow documents to such
successor. Costs and fees incurred by the Escrow Agent may, at the option of the
Escrow Agent, be deducted from any funds held pursuant hereto.
The parties hereto do hereby certify that they are aware that the
Federal Deposit Insurance Corporation (FDIC) coverages applies only to a maximum
amount of $100,000.00 for each individual depositor and that they are aware that
ORNTIC assumes no responsibility for, nor will they hold ORNTIC liable for any
loss occurring which arises from the fact that the amount held by the Escrow
Agent in any account may cause the aggregate amount of any individual depositors
accounts to exceed $100,000.00 and that the excess amount not insured by the
Federal Deposit Insurance Corporation. Federal I.D. or Social Security Number
_______________________________ By _____________________________ By
_______________________________ Address ________________________ Title
____________________________ Telephone ______________________ By
_______________________________
Title
----------------------------
OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY/ESCROW AGENT
By _____________________________
Address ________________________
Telephone ______________________
(1) Unless otherwise provided in employment agreement.
For Terminations without cause and without a change of control, severance
includes: Full base salary (excluding unearned bonuses, commissions and
overides) and
participation in related benefits (medical, dental and vision coverage with
payment of employee contribution, auto allowance and reimbursement of
authorized business expenses) for the period of severance.
Employment is deemed to continue for purposes of permitting the executive
to exercise stock options through the severance period (or until the stated
option expiration date, if earlier).
For terminations without cause that occur within 9 months after a change of
control, severance includes: Full base salary and full targeted bonus or
override/commission; and related
benefits (medical, dental and vision coverage without payment of employee
contribution, auto allowance and reimbursement of authorized business
expenses) for the period of severance.
Full accelerated vesting of all unvested options upon termination and
employment is deemed to continue for purposes of permitting the executive
to exercise stock options through the severance period (or until the stated
option expiration date, if earlier).
A termination will be deemed to occur should an acquiring company without
the consent of the individual require relocation of an executive to an
office more than 50 miles from then-current office location, significantly
reduce the functional responsibility of the executive from that immediately
before change of control, or significantly reduce the executive's
compensation package.
▇▇▇▇▇ agrees to indemnify executive for liabilities resulting from the
performance of his duties and responsibilities for AXENT and its
subsidiaries.
Executives must agree to non-hiring and non-compete covenants with AXENT to
receive severance.
"Change of control" is as defined in AXENT's 1998 stock option plan in effect in
August 1998.
Compensation Committee Approval:
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇