▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
LEASE DATED OCTOBER 15, 1996
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in a
certain building (the "Building") known as, and with an address at, ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇.
The parties to this Indenture of Lease hereby agree with each other as
follows:
ARTICLE I
REFERENCE DATA
1.1 Subjects Referred To:
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this
Article:
LANDLORD: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustees of ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust under Declaration of Trust
dated September 28, 1981 filed with the Middlesex
South Registry District as Document No. 616455 as
amended by instruments dated December 10, 1984 and
April 17, 1991 respectively filed with said
Registry District as Document Nos. 675674 and
844541 but not individually.
LANDLORD'S ORIGINAL c/o Boston Properties, Inc.
ADDRESS: ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LANDLORD'S CONSTRUCTION
REPRESENTATIVE: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
TENANT: Moldflow Pty. LTD an Australian corporation registered to do
business in Connecticut.
TENANT'S ORIGINAL Two Corporate Drive, Suite 232
ADDRESS: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TENANT'S CONSTRUCTION
REPRESENTATIVE: ▇▇▇▇ ▇▇▇▇▇▇
SPECIAL ALLOWANCE: As defined in Section 3.1.1
SCHEDULED TERM
COMMENCEMENT DATE: November 1, 1996
COMMENCEMENT DATE: As defined in Sections 2.4 and 3.2
OUTSIDE COMPLETION DATE: December 1, 1996.
ORIGINAL TERM: Sixty (60) calendar months (plus the partial month, if any,
immediately following the Commencement Date), unless
extended or sooner terminated as provided in this Lease.
EXTENSION OPTION: One (1) period of five (5) years as provided in and on the
terms set forth in Section 2.4.1 hereof.
TERM OR LEASE TERM: All references in this Lease to the Term or Lease Term shall
mean the Original Term and if extended pursuant to Section 2.4.1,
the Original Term as extended by the exercise of the applicable
extension options unless otherwise specifically provided in this
Lease.
THE SITE: That certain parcel of land known as and numbered ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇,
being more particularly described in Exhibit A attached hereto.
THE BUILDING: The Building known as and numbered ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇,
-▇-
▇▇▇▇▇▇▇▇▇▇▇▇▇. The Building is appropriately labeled on Exhibit A-1
attached hereto and hereby made a part hereof.
THE COMPLEX: The Building together with all surface parking areas, the
Site and all improvements (including landscaping)
thereon and thereto.
TENANT'S SPACE: A portion of the first floor of the Building in accordance
with the floor plan attached hereto as Exhibit D
and incorporated herein by reference.
NUMBER OF PARKING SPACES: 26 spaces.
ANNUAL FIXED RENT: (a) During the Original Term of this Lease at the annual
rate of $185,650.00 (being the product of (i)
$23.50 and (ii) the "Rentable Floor Area of
Tenant's Space" (hereinafter defined in this
Section 1.1).
(b) During the extension option period (if exercised), as
determined pursuant to Section 2.4.1.
OPERATING EXPENSES: As provided in Section 2.6 hereof.
REAL ESTATE TAXES: As provided in Section 2.7 hereof.
TENANT ELECTRICITY: Initially as provided in Section 2.5 subject to adjustment
as provided in Section 2.8 hereof.
ADDITIONAL RENT: All charges and other sums payable by Tenant as set forth in this
Lease, in addition to Annual Fixed Rent.
RENTABLE FLOOR AREA 7,900 square feet.
OF TENANT'S SPACE
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(SOMETIMES ALSO
CALLED RENTABLE FLOOR
AREA OF THE PREMISES):
TOTAL RENTABLE FLOOR 122,328 square feet.
AREA OF THE BUILDING:
PERMITTED USES: General office purposes.
INITIAL MINIMUM $2,000,000.00 combined single limit
LIMITS OF TENANT'S per occurrence on a per location basis.
COMMERCIAL GENERAL
LIABILITY INSURANCE:
RECOGNIZED BROKER: ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
SECURITY DEPOSIT: $46,412.50
1.2 Exhibits. There are incorporated as part of this Lease:
EXHIBIT A Description of Site
EXHIBIT A-1 Site Plan
EXHIBIT B Tenant's Construction Plan
EXHIBIT C Landlord's Services
EXHIBIT D Floor Plan
EXHIBIT E Form of Commencement Date
Agreement
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1.3 Table of Articles and Sections
ARTICLE I-REFERENCE DATA
1.1 Subjects Referred to
1.2 Exhibits
1.3 Table of Articles and Sections
ARTICLE II-THE BUILDINGS, PREMISES, TERM AND RENT
2.1 The Premises
2.1.1 Relocation of Tenant's Space
2.2 Rights To Use Common Facilities
2.2.1 Tenant's Parking
2.3 Landlord's Reservations
2.4 Original Term
2.4.1 Extension Option
2.5 Monthly Fixed Rent Payments
2.6 Adjustment for Operating Expenses
2.7 Adjustment for Real Estate Taxes
2.8 Adjustment for Tenant Electricity
ARTICLE III-CONSTRUCTION
3.1 Tenant's Plans and Tenant Plan Excess Costs
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3.1.1 Special Allowance
3.2 Landlord's and Tenant's Work; Delays
3.3 Alterations and Additions
3.4 General Provisions Applicable to Construction
ARTICLE IV-LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 Landlord's Covenants
4.1.1 Services Furnished by Landlord
4.1.2 Additional Services Available to Tenant
4.1.3 Roof, Exterior Wall, Floor Slab and Common Facility
Repairs
4.1.4 Door Signs
4.2 Interruptions and Delays in Services and Repairs, etc.
ARTICLE V-TENANT'S COVENANTS
5.1 Payments
5.2 Repair and Yield Up
5.3 Use
5.4 Obstructions; Items Visible From Exterior; Rules and
Regulations
5.5 Safety Appliances; Licenses
5.6 Assignment; Sublease
5.7 Indemnity; Insurance
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5.8 Personal Property at Tenant's Risk
5.9 Right of Entry
5.10 Floor Load; Prevention of Vibration and Noise
5.11 Personal Property Taxes
5.12 Compliance with Laws
5.13 Payment of Litigation Expenses
ARTICLE VI-CASUALTY AND TAKING
6.1 Fire and Casualty-Termination or Restoration; Rent Adjustment
6.2 Uninsured Casualty
6.3 Eminent Domain-Termination or Restoration
6.4 Eminent Domain Damages Reserved
ARTICLE VII-DEFAULT
7.1 Tenant's Default
7.2 Landlord's Default
ARTICLE VIII-MISCELLANEOUS PROVISIONS
8.1 Extra Hazardous Use
8.2 Waiver
8.3 Cumulative Remedies
8.4 Quiet Enjoyment
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8.5 Notice To Mortgagee and Ground Lessor
8.6 Assignment of Rents
8.7 Surrender
8.8 Brokerage
8.9 Invalidity of Particular Provisions
8.10 Provisions Binding, Etc.
8.11 Recording
8.12 Notices
8.13 When Lease Becomes Binding
8.14 Section Headings
8.15 Rights of Mortgagee
8.16 Status Report and Financial Statements
8.17 Self-Help
8.18 Holding Over
8.19 Non-Subrogation
8.20 Security Deposit
8.21 Late Payment
8.22 Governing Law
8.23 Submission to Jurisdiction
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ARTICLE II
BUILDING, PREMISES, TERM AND RENT
2.1 Landlord hereby demises and leases to Tenant, and Tenant hereby hires
and accepts from Landlord, Tenant's Space in the Building excluding
exterior faces of exterior walls, the common stairways and stairwells,
elevators and elevator ▇▇▇▇▇, fan rooms, electric and telephone
closets, janitor closets, and pipes, ducts, conduits, wires and
appurtenant fixtures serving exclusively, or in common, other parts of
the Building, and if Tenant's Space includes less than the entire
rentable area of any floor, excluding the common corridors, elevator
lobbies and toilets located on such floor.
Tenant's Space with such exclusions is hereinafter referred to as
the "Premises". The term "Building" means the Building identified on
the first page, and which is the subject of this Lease; the term
"Site" means all, and also any part of the Land described in
Exhibit A, plus any additions or reductions thereto resulting from
the change of any abutting street line and all parking areas and
structures. The term "Property" means the Building and the Site.
2.1.1 Tenant hereby agrees with Landlord that upon the request of Landlord,
Landlord shall have the right to relocate Tenant's Space within the
Building one time during the Lease Term. Upon such relocation,
Tenant's Space shall be relocated to premises on the first, second, or
third floor of the Building at Landlord's sole discretion. Landlord,
at its sole cost and expense, shall perform the partitioning of the
relocated Tenant's Space, and shall improve, alter and finish the
relocated Tenant's Space to substantially the same condition of the
former Tenant's Space. Landlord also shall pay for Tenant's reasonable
out of pocket moving costs in relocating, including, costs to reinstall
the telecommunication and computer lines and cabling in the relocated
Tenant's Space. The relocated Tenant's Space shall be complete
(excluding punch list items and long lead items, as further defined in
Section 3.2) before Tenant shall be required to vacate the former
Tenant's Space. Upon any such relocation, Tenant's Space may be
increased or decreased by not more than one hundred fifty (150) square
feet of Rentable Floor Area in total, and Tenant agrees to enter into
an appropriate lease amendment reflecting the relocation of Tenant's
Space and the adjustment to the Rentable Floor Area (as defined in
Section 1.1 of this Lease), if any. Further, upon adjustment to the
Rentable Floor Area, if any, the Annual Fixed Rent defined in
Section 1.1 of this Lease shall be at the rate defined therein but
shall be calculated on the basis of the adjusted Rentable Floor Area
of Tenant's Space.
2.2 Tenant shall have, as appurtenant to the Premises, the non-exclusive
right to use in common with others, subject to reasonable rules of
general applicability to tenants of the
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Building from time to time made by Landlord of which Tenant is given
notice (a) the common lobbies, corridors, stairways, elevators and
loading area of the Building, and the pipes, ducts, conduits, wires
and appurtenant meters and equipment serving the Premises in common
with others, (b) common walkways and driveways necessary for access
to the Building, and (c) if the Premises include less than the entire
rentable floor area of any floor, the common toilets, corridors and
elevator lobby of such floor.
2.2.1 In addition, Tenant shall have the right to use the Number of Parking
Spaces (referred to in Section 1.1) of the parking area, in common
with use by other tenants from time to time of the Complex; provided,
however, Landlord shall not be obligated to furnish stalls or spaces
in any parking area specifically designated for Tenant's use.
Tenant covenants and agrees that it and all persons claiming by,
through and under it, shall at all times abide by all reasonable
rules and regulations promulgated by Landlord with respect to the
use of the parking areas on the Site. The parking privileges
granted herein are non-transferrable except to a permitted assignee
or subtenant as provided in Section 5.6 through Section 5.6.6.
Further, Landlord assumes no responsibility whatsoever for loss or
damage due to fire, theft or otherwise to any automobile(s) parked
on the Site or to any personal property therein, however caused, and
Tenant covenants and agrees, upon request from Landlord from time to
time, to notify its officers, employees, agents and invitees of such
limitation of liability. Tenant acknowledges and agrees that a
license only is hereby granted, and no bailment is intended or shall
be created.
2.3 Landlord reserves the right from time to time, without unreasonable
interference with Tenant's use: (a) to install, use, maintain, repair,
replace and relocate for service to the Premises and other parts of the
Building, or either, pipes, ducts, conduits, wires and appurtenant
fixtures, wherever located in the Premises or Building, and (b) to
alter or relocate any other common facility, provided that
substitutions are substantially equivalent or better. Installations,
replacements and relocations referred to in clause (a) above shall be
located so far as practicable in the central core area of the Building,
above ceiling surfaces, below floor surfaces or within perimeter walls
of the Premises so that the same are not visible within the Premises.
2.4 Tenant shall have and hold the Premises for a period commencing on the
earlier of (a) that date on which the Premises are ready for occupancy
as in Section 3.2 provided, or (b) that date on which Tenant commences
occupancy of any portion of the Premises for the Permitted Uses, and
continuing for the Term unless sooner terminated as provided in Article
VI or Article VII or unless extended as provided in Section 2.4.1.
As soon as may be convenient after the date has been determined on
which the Term commences as aforesaid, Landlord and Tenant agree to
join with each other in the
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execution of a written Declaration, in the form of Exhibit E, in which
the date on which the Term commences as aforesaid and the Term of this
Lease shall be stated. If Tenant shall fail to execute such
Declaration, the Commencement Date and Lease Term shall be as
reasonably determined by Landlord in accordance with the terms of this
Lease.
2.4.1 (A) Provided that at the time of exercise of the option to extend and
at the commencement date of the extension option period (i) there
exists no Event of Default (defined in Section 7.1), (ii) this Lease
is still in full force and effect, and (iii) Tenant has neither
assigned this Lease nor sublet in excess of fifty percent (50%) of
the Rentable Floor Area of the Premises in the aggregate (except for
an assignment or subletting permitted under Section 5.6.1 hereof),
Tenant shall have the right to extend the Term hereof upon all the
same terms, conditions, covenants and agreements herein contained
(except for the Annual Fixed Rent which shall be adjusted during the
option period as hereinbelow set forth) for one (1) period of five
(5) years as hereinafter set forth. The option period is sometimes
herein referred to as the "Extended Term".
(B) If Tenant desires to exercise the option to extend the Term, then
Tenant shall give notice to Landlord, not earlier than twelve (12)
months nor later than nine (9) months prior to the expiration of the
Term, hereunder of Tenant's request for Landlord's quotation of the
annual fair market rent for the Premises as of the commencement date of
the extension period, such quotation to be based on the use of the
Premises in its then condition as first class office space utilizing
properties of a similar character within the Boston West Suburban
market (including premises within the Complex if at the time such
quotation is requested such premises shall be available for rent)
(hereinafter called the "Annual Market Rent"). Within thirty (30) days
after Landlord's receipt of Tenant's notice requesting such a
quotation, Landlord shall notify Tenant of Landlord's quotation of the
Annual Market Rent. Within twenty (20) days after receipt by Tenant of
Landlord's quotation of the Annual Market Rent, Tenant shall have the
right to extend the Term by written notice to Landlord within said last
mentioned 20-day period upon all of the same terms, conditions,
covenants and agreements contained in this Lease, except that the
annual fixed rent for the option period shall be equal to the Annual
Market Rent per square foot as quoted by Landlord for the option period
multiplied by the Rentable Floor Area of the Premises; provided,
however, that in no event shall the annual fixed rent payable during
the option period be less than the annual fixed rent for the last year
of the Term of this Lease and further that the only extension option
shall be that set forth in this Section 2.4.1. Upon the giving of such
notice, this Lease and the Term hereof shall be extended for the option
period, without the necessity for the execution of any additional
documents (except that Landlord and Tenant agree to enter into an
instrument in writing setting forth the fixed rent); and in such event
all references herein to the Term or the term of this Lease shall be
construed as referring to the Term, as so extended, unless the
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context clearly otherwise requires. Notwithstanding anything herein
contained to the contrary, in no event shall the Lease Term hereof be
extended for more than five (5) years after the expiration of the
Original Term hereof.
2.5 Tenant agrees to pay to Landlord, or as directed by Landlord, at
Landlord's Original Address specified in Section 1.1 hereof, or at such
other place as Landlord shall from time to time designate by notice,
(1) (a) on the Commencement Date (defined in Section 1.1 hereof) and
thereafter monthly, in advance, on the first day of each and every
calendar month during the Original Term, a sum equal to one twelfth
(1/12th) of the applicable Annual Fixed Rent (sometimes hereinafter
referred to as "fixed rent") and (1) (b) on the Commencement Date and
thereafter monthly, in advance, on the first day of each and every
calendar month during the Original Term, a sum equal to one twelfth
(1/12th) of $0.85 per annum for each square foot of Rentable Floor Area
of Tenant's Space for tenant electricity subject to escalation as
provided in Section 2.8 and (2) on the first day of each and every
calendar month during the extension option period (if exercised), a sum
equal to (a) one twelfth (1/12th) of the applicable annual fixed rent
as determined in Section 2.4.1 for the extension option period plus (b)
then applicable monthly electricity charges (subject to escalation for
electricity as provided in Section 2.8 hereof). Until notice of some
other designation is given, fixed rent and all other charges for which
provision is herein made shall be paid by remittance to or for the
order of Boston Properties, Inc., Agents, at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and all remittances received by Boston
Properties, Inc., as Agents as aforesaid, or by any subsequently
designated recipient, shall be treated as payment to Landlord.
Annual Fixed Rent for any partial month shall be paid by Tenant to
Landlord at such rate on a pro rata basis, and, if the Commencement
Date is a day other than the first day of a calendar month, the first
payment which Tenant shall make to Landlord shall be a payment equal to
a proportionate part of such monthly Annual Fixed Rent for the partial
month from the Commencement Date to the first day of the succeeding
calendar month.
Other charges payable by Tenant on a monthly basis, as hereinafter
provided, likewise shall be prorated, and the first payment on account
thereof shall be determined in similar fashion but shall commence on
the Commencement Date; and other provisions of this Lease calling for
monthly payments shall be read as incorporating this undertaking by
Tenant.
The Annual Fixed Rent and all other charges for which provision is
herein made shall be paid by Tenant to Landlord, without offset,
deduction or abatement except as otherwise specifically set forth in
this Lease.
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2.6 "Landlord's Operating Expenses" means the cost of operation of the
Building and the Site which shall exclude: costs of special services
rendered to tenants (including Tenant) for which a separate charge is
made; brokerage commissions related to the leasing of space in the
Building; the cost of any item or service to the extent to which
Landlord is actually reimbursed or compensated by insurance, any tenant
or any third party; the cost of any capital expansion made to the
Building or the Site after the date of this Lease; capital expenditures
(except as provided hereinbelow in this Section 2.6); legal fees or
other expenses incurred in connection with negotiating and enforcing
leases with tenants in the Building; expenses for renovating,
decorating or other tenant improvement work which Landlord performs in
connection with leasing in the Building; costs incurred in performing
work or furnishing services for any tenant (including Tenant), whether
at such tenant's or Landlord's expense to the extent that such work or
service is in excess of such work or service that Landlord is obligated
to furnish to Tenant at Landlord's expense (e.g., if Landlord agrees to
provide extra cleaning to another tenant, the cost thereof would be
excluded since Landlord is not obligated to furnish extra cleaning to
Tenant); the cost of any service or materials provided by any
subsidiaries or affiliates of Landlord, to the extent such costs exceed
the reasonable cost for such service or materials absent such
relationship in buildings similar to the Building in the vicinity of
the Building; interest on any debt, debt amortization or ground rent
for any mortgage or ground lease of the Building or Site; salaries and
other compensation paid to employees above the level of building
manager; advertising and promotional expenses for obtaining tenants for
the Building; fines or penalties incurred by Landlord due to violations
by Landlord of any applicable governmental law; acquisition costs of
sculptures, paintings or other art work for the Building, the cost of
removal or remediation of "Hazardous Materials" (as defined in Section
5.3) in the Building or on the Site required by "Hazardous Materials
Laws" (as defined in Section 5.3) but shall include, without
limitation, the following: premiums for insurance carried with respect
to the Building and the Site (including, without limitation, liability
insurance, insurance against loss in case of fire or casualty and
insurance of monthly installments of fixed rent and any Additional Rent
which may be due under this Lease and other leases of space in the
Building for not more than 12 months in the case of both fixed rent and
Additional Rent and if there be any first mortgage of the Property,
including such insurance as may be required by the holder of such first
mortgage); compensation and all fringe benefits, workmen's compensation
insurance premiums and payroll taxes paid to, for or with respect to
all persons engaged in the operating, maintaining or cleaning of the
Building or Site (provided that Landlord shall prorate any such
expenses for any person whose time is not spent solely in the operation
of the Building or the Site) water, sewer, electric, gas, oil and
telephone charges (excluding utility charges separately chargeable to
tenants for additional or special services); cost of building and
cleaning supplies and equipment; cost of maintenance, cleaning and
repairs (other than repairs not properly chargeable against income or
reimbursed from contractors
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under guarantees); cost of snow removal and care of landscaping;
payments under service contracts with independent contractors;
management fees at reasonable rates consistent with the
type of occupancy and the service rendered; and all other reasonable
and necessary expenses paid in connection with the operation, cleaning
and maintenance of the Building and the Site and properly chargeable
against income, provided, however, there shall be included an annual
charge for (a) depreciation for capital expenditures made by Landlord
(i) to reduce operating expenses if Landlord shall have reasonably
determined that the annual reduction in operating expenses shall exceed
depreciation therefor or (ii) to comply with applicable laws, rules,
regulations, requirements, statutes, ordinances, by-laws and court
decisions of all public authorities which are enacted after the date of
this Lease (herein collectively called "Legal Requirements"); plus (b)
in the case of both (i) and (ii) an interest factor, reasonably
determined by Landlord, as being the interest rate then charged for
long term mortgages by institutional lenders on like properties within
the locality in which the Building is located; depreciation in the case
of both (i) and (ii) shall be determined by dividing the original cost
of such capital expenditure by the number of years of useful life of
the capital item acquired and the useful life shall be reasonably
determined by Landlord in accordance with generally accepted accounting
principles and practices in effect at the time of acquisition of the
capital item.
"Operating Expenses Allocable to the Premises" shall mean the same
proportion of Landlord's Operating Expenses for and pertaining to the
Building and the Site as the Rentable Floor Area of Tenant's Space
bears to the Total Rentable Floor Area of the Building.
"Base Operating Expenses" shall mean Landlord's Operating Expenses for
calendar year 1997 (that is, the period beginning January 1, 1997 and
ending December 31, 1997).
"Base Operating Expenses Allocable to the Premises" shall mean the same
proportion of Base Operating Expenses as the Rentable Floor Area of
Tenant's Space bears to the Total Rentable Floor Area of the Building.
If with respect to any calendar year falling within the Term, or
fraction of a calendar year falling within the Term at the beginning or
end thereof, the Operating Expenses Allocable to the Premises for a
full calendar year exceed Base Operating Expenses Allocable to the
Premises or for any such fraction of a calendar year exceed the
corresponding fraction of Base Operating Expenses Allocable to the
Premises (such amount being hereinafter sometimes referred to as the
"Operating Cost Excess") then Tenant shall pay to Landlord, as
Additional Rent, the amount of such excess. Such payments shall be made
at the times and in the manner hereinafter provided in this Section
2.6. (The Base Operating
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Expenses Allocable to the Premises do not include the $0.85 for tenant
electricity to be paid by Tenant together with Annual Fixed Rent and
for which provision is made in Section 2.5 hereof, separate provision
being made in Section 2.8 of this Lease for Tenant's share of
increases in electricity costs.)
Not later than ninety (90) days after the end of the first calendar
year or fraction thereof ending December 31 and of each succeeding
calendar year during the Term or fraction thereof at the end of the
Term, Landlord shall render Tenant a statement in reasonable detail and
according to generally acceptable accounting practices used in the real
estate industry certified by a representative of Landlord, showing for
the preceding calendar year or fraction thereof, as the case may be,
Base Operating Expenses, Landlord's Operating Expenses and Operating
Expenses Allocable to the Premises. Said statement to be rendered to
Tenant shall also show for the preceding year or fraction thereof as
the case may be the amounts of operating expenses already paid by
Tenant as Additional Rent on account of the operating expenses and the
amount of the Operating Cost Excess remaining due from, or overpaid by,
Tenant for the year or other period covered by the statement. Within
thirty (30) days after the date of delivery of such statement, Tenant
shall pay to Landlord the balance of the amounts, if any, required to
be paid pursuant to the above provisions of this Section 2.6 with
respect to the preceding year or fraction thereof, or Landlord shall
credit any amounts overpaid by Tenant against (i) monthly installments
of fixed rent next thereafter coming due or (ii) any sums then due from
Tenant to Landlord under this Lease (or refund such portion of the
overpayment as aforesaid if the Term has ended and Tenant has no
further obligation to Landlord). At the request of Tenant, Landlord
shall make available for Tenant's review, at Tenant's expense, and at a
time and place reasonably determined by Landlord, the records Landlord
used to prepare such statement. Tenant shall hold such books and
records in confidence and not disclose the same to any other party,
including, without limitation, any other tenant in the Building.
In addition, Tenant shall make payments monthly on account of Tenant's
share of increases in operating expenses anticipated for the then
current year at the time and in the fashion herein provided for the
payment of fixed rent. The amount to be paid to Landlord shall be an
amount reasonably estimated annually by Landlord to be sufficient to
cover, in the aggregate, a sum equal to the Operating Cost Excess for
each calendar year during the Term.
Notwithstanding the foregoing provisions, no decrease in Landlord's
Operating Expenses shall result in a reduction of the amount otherwise
payable by Tenant if and to the extent said decrease is attributable to
vacancies in the Building rather than to any other causes.
-15-
In the event that on the average less than ninety-five percent (95%) of
the Rentable Floor Area of the Building is leased during any calendar
year during the Lease Term (including, without limitation, calendar
year 1997 for purposes of calculating Base Operating Expenses),
Landlord's Operating Expenses for such calendar year shall be
determined by Landlord to be an amount equal to the Landlord's
Operating Expenses which would normally be expected to have been
charged had ninety-five percent (95%) of the Rentable Floor Area of the
Building been leased during such calendar year.
2.7 If with respect to any full Tax Year or fraction of a Tax Year falling
within the Term, Landlord's Tax Expenses Allocable to the Premises (as
hereinafter defined) for a full Tax Year exceed Base Taxes Allocable to
the Premises or for any such fraction of a Tax Year exceed the
corresponding fraction of Base Taxes Allocable to the Premises (such
amount being hereinafter sometimes referred to as the "Tax Excess")
then, on or before the thirtieth (30th) day following receipt by Tenant
of the certified statement referred to below in this Section 2.7,
Tenant shall pay to Landlord, as Additional Rent, the amount of the Tax
Excess. In addition, payments by Tenant on account of the Tax Excess
anticipated for the then current year shall be made monthly at the time
and in the fashion herein provided for the payment of fixed rent. The
amount so to be paid to Landlord shall be an amount reasonably
estimated by Landlord to be sufficient to provide Landlord, in the
aggregate, a sum equal to the Tax Excess at least ten (10) days before
the day on which such payments by Landlord would become delinquent. Not
later than ninety (90) days after Landlord's Tax Expenses Allocable to
the Premises are determined for the first such Tax Year or fraction
thereof and for each succeeding Tax Year or fraction thereof during the
Term, Landlord shall render Tenant a statement in reasonable detail
certified by a representative of Landlord showing for the preceding
year or fraction thereof, as the case may be, real estate taxes on the
Building and the Site and abatements and refunds of any taxes and
assessments. Expenditures for legal fees and for other expenses
incurred in obtaining the tax refund or abatement may be charged
against the tax refund or abatement before the adjustments are made for
the Tax Year.
To the extent that real estate taxes shall be payable to the taxing
authority in installments with respect to periods less than a Tax Year,
the foregoing statement shall be rendered and payments made on account
of such installments. Notwithstanding the foregoing provisions, no
decrease in Landlord's Tax Expenses with respect to any Tax Year shall
result in a reduction of the amount otherwise payable by Tenant if and
to the extent said decrease is attributable to vacancies in the
Building or partial completion of the Building rather than to any other
causes.
Terms used herein are defined as follows:
-16-
(i) "Tax Year" means the twelve-month period beginning
July 1 each year during the Term or if the
appropriate governmental tax fiscal period shall
begin on any date other than July 1, such other date.
(ii) "Landlord's Tax Expenses Allocable to the Premises"
shall mean the same proportion of Landlord's Tax
Expenses for and pertaining to the Building and the
Site as the Rentable Floor Area of Tenant's Space
bears to 95% of the Total Rentable Floor Area of the
Building.
(iii) "Landlord's Tax Expenses" with respect to any Tax
Year means the aggregate real estate taxes on the
Building and Site with respect to that Tax Year,
reduced by any abatement receipts with respect to
that Tax Year.
(iv) "Base Taxes" means Landlord's Tax Expenses
(hereinbefore defined) for fiscal tax year 1996 (that
is, the period beginning July 1, 1995 and ending June
30, 1996).
(v) "Base Taxes Allocable to the Premises" means the same
proportion of Base Taxes as the Rentable Floor Area
of Tenant's Space bears to 95% of the Total Rentable
Floor Area of the Building.
(vi) "Real estate taxes" means all taxes and special
assessments of every kind and nature assessed by
any governmental authority on the Building or Site
which the Landlord shall become obligated to pay
because of or in connection with the ownership,
leasing and operation of the Site, the Building and
the Property (including, without limitation, if
applicable the excise prescribed by Mass Gen Laws
Chapter 121A, Section 10 and amounts in excess
thereof paid to the Town of Lexington pursuant to
agreement between Landlord and the Town) and
reasonable expenses of any proceedings for
abatement of taxes. The amount of special taxes
or special assessments to be included shall be
limited to the amount of the installment (plus any
interest, other than penalty interest, payable
thereon) of such special tax or special assessment
required to be paid during the year in respect of
which such taxes are being determined. There
shall be excluded from such taxes all income,
estate, succession, inheritance and transfer
taxes; provided, however, that if at any time
during the Term the present system of ad valorem
taxation of real property shall be changed so that
in lieu of, or in addition to, the whole or any
part of the ad valorem tax on real property there
shall be assessed on Landlord a capital levy or
other
-17-
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ TAX ESCALATION
FOR THE PERIOD ENDING FEBRUARY 28, 1998
Tenant: MOLDFLOW PTY, LIMITED Square Footage: 7,900
JULY 1, 1997 TO FEBRUARY 28, 1998
---------------------------------
Total FY 1998 Real Estate Costs: 178,978.16
Less Tenant Real Estate Tax Base: (157,961.27)
-----------
Real Estate Expense Excess: 21,016.89
Tenant's Proportionate Share: (1) 1,359.43
Real Estate Expenses Due For The Period Occupied
July 1997 - February 1998 (243 / 243 days): 1,359.43
Less Amounts Billed: 0.00
-----------
TOTAL FY1998 REAL ESTATE ESCALATION DUE
LANDLORD/(TENANT) 1,359.43
==========
(1) Tenant's Proportionate Share based on square footage of 122,135.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ TAX ESCALATION
FOR THE PERIOD ENDING JUNE 30, 1998
Tenant: MOLDFLOW PTY, LIMITED Square Footage: 7,900
MARCH 1, 1998 THROUGH JUNE 30, 1998
-----------------------------------
Total FY 1998 Real Estate Costs remaining: 89,489.08
Less Tenant Real Estate Tax Base: (78,980.63)
----------
Real Estate Expense Excess: 10,508.45
Tenant's Proportionate Share: (1) 679.71
Real Estate Expenses Due For The Period Occupied
March 1998 - June 1998 (122/122 days): 679.71
169.93
NEW MONTHLY PAYMENT DUE LANDLORD: ==========
MAKE PAYMENTS TO FISCAL YEAR 1998 REAL ESTATE TAX ▇▇▇▇
TOWN OF LEXINGTON COMMONWEALTH OF MASSACHUSETTS ▇▇▇▇ NUMBER 000062
COLLECTOR OF TAXES TOWN OF LEXINGTON
P.O. BOX 614 OFFICE OF THE COLLECTOR OF TAXES
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Based on assessment as of January 1, 1997 your
Real Estate Tax for the fiscal year beginning
OFFICE HOURS July 1, 1997 and ending June 30, 1998 on the
8:30 a.m. - 4:30 p.m. Real Estate described below is as follows:
MONDAY - FRIDAY
ASSESSED OWNERS
AS OF JAN 1, 1997 ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ TRUST Property Location ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
Map 0080 Parcel 00010C
TAX RATE RESIDENTIAL COMMERCIAL INDUSTRIAL Reference Deed Book 951 Page 42
PER $1000 13.43 25.51 25.51 Area 652,093.000 Sq. Ft.
Amount Due By: 02/02/98 72,693.15
TOTAL VALUE 10,524,000
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ TRUST
8 ARLINGTON ST Payment must be received in the Tax Collector's
BOSTON, MA 02116-3406 Office on or before the due date to avoid
penalty
TAXPAYER'S COPY - RETAIN FOR YOUR RECORDS
15501000062000726931500000000009802136
This form approved by the Commissioner of Revenue
▇▇▇▇ No 00062
BETTERMENTS AND LIENS Real Estate Tax FY97 268,467.2X
Total Betterment & Liens
Exemption / Deferral
Total Due FY97 268,457.2X
1st Prelim: Due 08/01/97 61,540.4X
2nd Prelim: Due 11/03/97 61,540.47
3rd Quarter Tax Due 02/02/98 72,693.15
4th Quarter Tax Due 05/01/98 72,693.14
Payments 123,030.95
Interest Due As Of 02/02/98
3rd Quarter Tax Due 02/02/98 72,693.15
TOTAL BETTERMENTS AND LIENS Amount Due Now 72,693.15
See Reverse Side For Important Information
Interest at the rate of 14% per annum will See reverse side of ▇▇▇▇ for important tax information.
accrue on overdue payments from the due If you have sold your property please forward this ▇▇▇▇
date until payment is made. to the new owner as soon as possible. Request for change
of mailing address must be sent in writing to:
* This ▇▇▇▇ reflects payments Board of Assessors, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
received as of 12/11/97 ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Detach Here Detach Here
tax on the gross rents received with respect
to the Site or Building or Property, or a federal,
state, county, municipal, or other local income,
franchise, excise or similar tax, assessment, levy
or charge (distinct from any now in effect in the
jurisdiction in which the Property is located)
measured by or based, in whole or in part, upon
any such gross rents, then any and all of such
taxes, assessments, levies or charges, to the
extent so measured or based, shall be deemed to be
included within the term "real estate taxes" but
only to the extent that the same would be payable
if the Site and Building were the only property of
Landlord.
2.8 If with respect to any calendar year falling within the Term or
fraction of a calendar year falling within the Term at the beginning or
end thereof, the cost of furnishing electricity to the Building and the
Site which in no event shall exceed the amount billed for such
electricity by the utility company providing the same, including common
areas and facilities and space occupied by tenants, (but expressly
excluding utility charges separately chargeable to tenants for
additional or special services) for a full calendar year exceeds $0.85
per square foot of Rentable Floor Area of the Building, or for any such
fraction of a calendar year exceeds the corresponding fraction of $0.85
per square foot of Rentable Floor Area of the Building, then Tenant
shall pay to Landlord, as Additional Rent, on or before the thirtieth
(30th) day following receipt by Tenant of the statement referred to
below in this Section 2.8, its proportionate share of the amount of
such excess (i.e. the same proportion of such excess as the Rentable
Floor Area of Tenant's Space bears to the Total Rentable Floor Area of
the Building). Payments by Tenant on account of such excess shall be
made monthly at the time and in the fashion herein provided for the
payment of Annual Fixed Rent. The amount so to be paid to Landlord
shall be an amount from time to time reasonably estimated by Landlord
to be sufficient to cover, in the aggregate, a sum equal to such excess
for each calendar year during the Term.
Not later than ninety (90) days after the end of the first calendar
year or fraction thereof ending December 31 and of each succeeding
calendar year during the Term or fraction thereof at the end of the
Term, Landlord shall render Tenant a reasonably detailed accounting
certified by a representative of Landlord showing for the preceding
calendar year, or fraction thereof, as the case may be, the costs of
furnishing electricity to the Building. Said statement to be rendered
to Tenant also shall show for the preceding year or fraction thereof,
as the case may be, the amount already paid by Tenant on account of
electricity, and the amount remaining due from, or overpaid by, Tenant
for the year or other period covered by the statement. Within thirty
(30) days after the date of the delivery of such statement, Tenant
shall pay to Landlord the balance of the amounts, if any required to be
paid pursuant to the above provisions of this Section 2.8 with respect
to the preceding year, or fraction thereof, or Landlord shall credit
any amounts due from
-18-
it to Tenant pursuant to the above provisions of this Section 2.8
against monthly installments of Annual Fixed Rent or Additional
Rent next thereafter coming due unless the Lease Term has
expired and Tenant has no other or further obligations to Landlord, in
which case Landlord shall promptly refund such amount to Tenant.
ARTICLE III
CONSTRUCTION
3.1 Landlord shall perform the work shown on Exhibit B annexed hereto. In
addition, Landlord represents that as of the Commencement Date, the
heating, ventilating and air conditioning system installed by Landlord
servicing the Premises shall be in good working order and condition.
However, Landlord shall have no responsibility for the installation or
connection of Tenant's computer, telephone or other communications
equipment, systems or wiring.
3.1.1 Landlord shall provide Tenant with a special allowance in the amount
of $86,900.00 to be applied towards the cost of the work to be
performed by Landlord shown on Exhibit B attached hereto and the
architect's fee in connection with the preparation of the plans
described on Exhibit B. Landlord shall obtain Tenant's consent
prior to performing any work which has a cost in excess of the
special allowance and Tenant shall pay Landlord, as Additional Rent,
any cost of performing such work in excess of said special allowance
within thirty (30) days after being billed therefor. In the event
that the cost of the work shown on Exhibit B is less than the
special allowance, such excess shall be applied against Annual Fixed
Rent or Additional Rent next due pursuant to this Lease. Within one
hundred and twenty (120) days after the Commencement Date, Landlord
agrees to provide Tenant with a written report with respect to the
air balance of the heating, ventilating and air conditioning system
servicing the Premises.
3.2 Landlord agrees to use due diligence to complete the work described in
Section 3.1 on or before the Scheduled Term Commencement Date. Landlord
shall not be required to install any improvements which are not in
conformity with the plans and specifications for the Building. In case
of delays due to governmental regulation, unusual scarcity of or
inability to obtain labor or materials, labor difficulties, casualty or
other causes reasonably beyond Landlord's control (collectively,
"Landlord's Force Majeure"), the Scheduled Term Commencement Date shall
be extended for the period of such delays. The Premises shall be deemed
ready for occupancy on the date on which (a) the work described in
Section 3.1, together with common facilities for access and service to
the Premises, has been substantially completed except for (i) items of
work and adjustment of
-19-
equipment and fixtures which are not necessary to make the Premises
tenantable for office uses and which can be completed after occupancy
thereof has been taken without causing substantial interference with
Tenant's use of the Premises (i.e. so-called "punch list" items) and
(ii) items of work for which there is a long lead time in obtaining
the materials therefor or which are specially or specifically
manufactured, produced or milled for the work in or to the Premises
and require additional time for receipt or installation, provided
that Landlord has promptly notified Tenant of such items of work
having such characteristics after Landlord becomes aware of same
("long lead" items) and, (b) a certificate of occupancy, temporary or
permanent, has been approved for issuance by applicable governmental
authority, to the extent required by law permitting occupancy of the
Premises by Tenant. Landlord shall complete as soon as conditions
practically permit the punch list items and the long lead items and
Tenant shall not use the Premises in such manner as will increase the
cost of completion. Landlord shall permit Tenant access for installing
furnishings and wiring for Tenant's telephone and telecommunications
equipment in portions of the Premises when it can be done without
material interference with remaining work.
If, however, Landlord shall have failed to substantially complete the
work to be performed by Landlord in accordance with Section 3.1
(excluding punch list items and long lead items) on or before the
Outside Completion Date (which date shall be extended automatically for
such periods of time as Landlord is prevented from proceeding with or
completing the same by reason of Landlord's Force Majeure or any act or
failure to act of Tenant which interferes with Landlord's construction
of the Premises, without limiting Landlord's other rights on account
thereof), Tenant shall have the right to terminate this Lease by giving
notice to Landlord of Tenant's desire to do so within the time period
from the Outside Completion Date (as so extended) until the date which
is thirty (30) days subsequent to the Outside Completion Date (as so
extended); and, upon the giving of such notice, the Term of this Lease
shall cease and come to an end without further liability or obligation
on the part of either party unless, within thirty (30) days after
Landlord's receipt of Tenant's notice Landlord substantially completes
the work to be performed by Landlord under Section 3.1 (except for
punch list items and long lead items) and such right of termination
shall be Tenant's sole and exclusive remedy at law or in equity or
otherwise for Landlord's failure so to complete such work within such
time.
Tenant agrees that no delay by it, or anyone employed by it, in
performing work to prepare the Premises for occupancy (including,
without limitation, the work in installing telephones and other
communications equipment or systems) shall delay commencement of the
Term or the obligation to pay rent, regardless of the reason for such
delay or whether or not it is within the control of Tenant or any such
employee.
-20-
3.3 This Section 3.3 shall apply before and during the Term. Tenant shall
not make alterations and additions to Tenant's space except in
accordance with plans and specifications therefor first approved by
Landlord, which approval shall not be unreasonably withheld. Landlord
shall not be deemed unreasonable for withholding approval of any
alterations or additions which (a) involve or might affect any
structural or exterior element of the Building, any area or element
outside of the Premises, or any facility serving any area of the
Building outside of the Premises, or (b) will delay completion of the
Premises or Building, or (c) will require unusual expense to readapt
the Premises to normal office use on Lease termination or increase the
cost of construction or of insurance or taxes on the Building or of the
services called for by Section 4.1 unless Tenant first gives assurance
acceptable to Landlord for payment of such increased cost and that such
readaptation will be made prior to such termination without expense to
Landlord. Landlord's review and approval of any such plans and
specifications and consent to perform work described therein shall not
be deemed an agreement by Landlord that such plans, specifications and
work conform with applicable Legal Requirements and requirements of
insurers of the Building (herein called "Insurance Requirements") nor
deemed a waiver of Tenant's obligations under this Lease with respect
to applicable Legal Requirements and Insurance Requirements nor impose
any liability or obligation upon Landlord with respect to the
completeness, design sufficiency or compliance of such plans,
specifications and work with applicable Legal Requirements and
Insurance Requirements. Except for the work shown on Exhibit B and for
any additions or alterations which Tenant requests to remain in the
Premises in Tenant's notice seeking Landlord's consent for the
installation thereof (which notice shall specifically refer to this
Section 3.3) and for which Landlord agrees in writing may remain, all
alterations and additions shall be part of the Building unless and
until Landlord shall specify the same for removal pursuant to Section
5.2. All of Tenant's alterations and additions and installation of
furnishings shall be coordinated with any work being performed by
Landlord and in such manner as to maintain harmonious labor relations
and not to damage the Building or Site or interfere with construction
or operation of the Building and other improvements to the Site and,
except for installation of furnishings, shall be performed by
Landlord's general contractor or by contractors or workmen first
approved by Landlord. Except for work by Landlord's general contractor,
Tenant, before its work is started, shall secure all licenses and
permits necessary therefor; deliver to Landlord a statement of the
names of all its contractors and subcontractors and the estimated cost
of all labor and material to be furnished by them and security
satisfactory to Landlord protecting Landlord against liens arising out
of the furnishing of such labor and material; and cause each contractor
to carry workmen's compensation insurance in statutory amounts covering
all the contractor's and subcontractor's employees and commercial
general liability insurance or comprehensive general liability
insurance with a broad form comprehensive liability endorsement with
such limits as Landlord may reasonably require, but in no event less
than $2,000,000.00
-21-
combined single limit per occurrence on a per location basis (all such
insurance to be written in companies approved by Landlord and naming
and insuring Landlord and Landlord's managing agent as additional
insureds and insuring Tenant as well as the contractors), and to
deliver to Landlord certificates of all such insurance. Tenant agrees
to pay promptly when due the entire cost of any work done on the
Premises by Tenant, its agents, employees, or independent contractors,
and not to cause or permit any liens for labor or materials performed
or furnished in connection therewith to attach to the Premises or the
Building or the Site and immediately to discharge any such liens which
may so attach. Tenant shall pay, as Additional Rent, 100% of any real
estate taxes on the Complex which shall, at any time after
commencement of the Term, result from any alteration, addition or
improvement to the Premises made by Tenant.
3.3.1 Notwithstanding the terms of Section 3.3, Tenant shall have the
right, without obtaining the prior consent of Landlord, to make
alterations, additions or improvements to the Premises where:
(i) the same are within the interior of the Premises
within the Building, and do not affect the exterior
of the Premises and the Building (including no signs
on windows);
(ii) the same do not affect the roof, any structural
element of the Building, the mechanical, electrical,
plumbing, heating, ventilating, air-conditioning and
fire protection systems of the Building;
(iii) the cumulative sum of the costs of said alterations,
additions or improvements made by Tenant during the
Lease Term shall not exceed $5,000.00 in cost;
(iv) Tenant shall comply with the provisions of this Lease
and if such work increases the cost of insurance or
taxes or of services, Tenant shall pay for any such
increase in cost;
provided, however, that Tenant shall, within fifteen (15) days after
the making of such changes, send to Landlord plans and specifications
describing the same in reasonable detail and provided further that
Landlord, by notice to Tenant given at least thirty (30) days prior to
the expiration or earlier termination of the Lease Term, may require
Tenant to restore the Premises to its condition prior to such
alteration, addition or improvement at the expiration or earlier
termination of the Lease Term.
-22-
3.4 All construction work required or permitted by this Lease shall be done
in a good and workmanlike manner and in compliance with all applicable
Legal Requirements and Insurance Requirements now or hereafter in
force. Each party may inspect the work of the other at reasonable times
and shall promptly give notice of observed defects. Each party
authorizes the other to rely in connection with design and construction
upon approval and other actions on the party's behalf by any
Construction Representative of the party named in Article I or any
person hereafter designated in substitution or addition by notice to
the party relying. Except as otherwise provided in Article IV, the work
required of Landlord pursuant to this Article III shall be deemed
approved by Tenant when Tenant commences occupancy of the Premises for
the Permitted Uses, except for items which are then uncompleted
(including punch list items and long lead items) and as to which Tenant
shall have given notice to Landlord within thirty (30) days after such
date.
ARTICLE IV
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 Landlord covenants:
4.1.1 To furnish services, utilities, facilities and supplies set forth in
Exhibit C equal to those customarily provided by landlords in high
quality buildings in the Boston West Suburban Market subject to
escalation reimbursement in accordance with Section 2.6.
4.1.2 To furnish, at Tenant's expense, reasonable additional Building
operation services which are usual and customary in similar office
buildings in the Boston West Suburban Market upon reasonable advance
request of Tenant at reasonable and equitable rates from time to time
established by Landlord.
4.1.3 Subject to the escalation provisions of Section 2.6 and except as
otherwise provided in Article VI, (i) to make such repairs to the
roof, exterior walls, floor slabs and common areas and facilities
as may be necessary to keep them in serviceable condition and
(ii) to maintain the Building (exclusive of Tenant's responsibilities
under this Lease) in a first class manner comparable to the
maintenance of similar properties in the Boston West Suburban Market.
4.1.4 To provide and install, at Landlord's expense, letters or numerals on
(i) the entrance doors to the Premises (ii) the tenant directory in the
lobby of the Building and (iii), at Landlord's option from time to time
and subject to receipt of any required permits or approvals, the
existing monument sign facing ▇▇▇▇▇▇▇▇ Avenue, to identify Tenant's
-23-
official 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.
4.1.5 Subject to escalation reimbursement in accordance with Section 2.6, to
maintain during the Term of this Lease (a) commercial general
liability insurance insuring Landlord with respect to the Building in
an amount not less than $2,000,000 and insurance against loss or
damage to the Building covered by "all risk" type insurance coverage,
which insurance shall be in an amount at least equal the replacement
cost of the Building. Any and all of such insurance (i) may be
maintained under a blanket policy affecting other premises of
Landlord and/or its affiliated business organizations and (ii) may
be written with deductibles as determined by Landlord. Nothing herein
shall limit Landlord's right to maintain such other insurance as
provided in Section 2.6 hereof.
4.2 In exercising any of its rights to enter the Premises or to repair the
Premises or any portion of the Building, Landlord will use reasonable
efforts not to unreasonably interfere with Tenant's business during
such entry. Notwithstanding the foregoing sentence, Landlord shall not
be liable to Tenant for any compensation or reduction of rent by
reason of inconvenience or annoyance or for loss of business arising
from the necessity of Landlord or its agents entering the Premises
for any of the purposes in this Lease authorized, or for repairing
the Premises or any portion of the Building however the necessity may
occur. In case Landlord is prevented or delayed from making any
repairs, alterations or improvements, or furnishing any services or
performing any other covenant or duty to be performed on Landlord's
part, by reason of any cause reasonably beyond Landlord's control,
including without limitation the causes set forth in Section 3.2
hereof as being reasonably beyond Landlord's control, Landlord shall
not be liable to Tenant therefor, nor, except as expressly otherwise
provided in Article VI, 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. In the
event that the electricity service to the Premises shall be shut down
for more than five (5) full and consecutive business days, but only
as a result of causes which are covered by Landlord's loss of rentals
insurance, then, Tenant shall be entitled to an abatement of Annual
Fixed Rent equal to the "Insurance Amount" (hereinafter defined).
The "Insurance Amount" shall be an amount equal to the payment
actually received by Landlord (but ONLY allocable to and on account
of the Premises) for such shut down of electricity service to the
Premises from Landlord's insurance carrier providing such loss of
rents insurance less the amount of any deductible contained in such
loss of rents insurance coverage.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary
repairs have been completed;
-24-
provided, however, that in each instance of stoppage, Landlord shall
exercise reasonable diligence to eliminate the cause thereof. Except
in case of emergency repairs, Landlord will give Tenant reasonable
advance notice of any contemplated stoppage and will use reasonable
efforts to avoid unnecessary inconvenience to Tenant by reason thereof.
ARTICLE V
TENANT'S COVENANTS
Tenant covenants during the term and such further time as Tenant
occupies any part of the Premises:
5.1 To pay when due all fixed rent and Additional Rent and all charges for
utility services rendered to the Premises (except as otherwise
provided in Exhibit C) and, further, as Additional Rent, all charges
for additional services rendered pursuant to Section 4.1.2.
5.2 Except as otherwise provided in Article VI and Section 4.1.3, to keep
the Premises in good order, repair and condition, reasonable wear and
tear and damage from fire or other casualty only excepted, and all
glass in windows (except glass in exterior walls unless the damage
thereto is attributable to Tenant's negligence or misuse) and doors of
the Premises whole and in good condition with glass of the same type
and quality as that injured or broken, damage by fire or taking under
the power of eminent domain only excepted, and at the expiration or
termination of this Lease peaceably to yield up the Premises all
construction, work, improvements, and all alterations and additions
thereto in good order, repair and condition, reasonable wear and tear
and damage from fire or to other casualty only excepted, first removing
all goods and effects of Tenant and, to the extent specified by
Landlord by notice to Tenant given at least ten (10) days before such
expiration or termination (unless otherwise specified by Landlord as
set forth in Section 3.3), the wiring for Tenant's computer, telephone
and other communication systems and equipment and all alterations and
additions made by Tenant and all partitions, and repairing any damage
caused by such removal and restoring the Premises and leaving them
clean and neat. Tenant shall not permit or commit any waste, and
Tenant shall be responsible for the cost of repairs which may be made
necessary by reason of damage to common areas in the Building or to the
Site caused by Tenant, Tenant's independent contractors, Tenant's
employees or Tenant's invitees.
5.3 From the commencement of the Term, to use and occupy the Premises for
the Permitted Uses only, and not to injure or deface the Premises,
Building, the Site or any other part of the Complex nor to permit in
the Premises or on the Site any auction sale, vending
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machine, or inflammable fluids or chemicals, or nuisance, or the
emission from the Premises of any objectionable noise or odor, nor
to use or devote the Premises or any part thereof for any purpose
other than the Permitted Uses, nor for any use thereof which is
inconsistent with maintaining the Building as a first class office
building in the quality of its maintenance, use and occupancy, or
which is improper, offensive, contrary to law or ordinance or liable
to render necessary any alteration or addition to the Building.
Further, (i) Tenant shall not, nor shall Tenant permit its employees,
invitees, agents, independent contractors, contractors, assignees or
subtenants to, keep, maintain, store or dispose of (into the sewage
or waste disposal system or otherwise) or engage in any activity
which might produce or generate any substance which is or may
hereafter be classified as a hazardous material, waste or substance
(collectively "Hazardous Materials"), under federal, state or local
laws, rules and regulations, including, without limitation, 42 U.S.C.
Section 6901 et seq., 42 U.S.C. Section 9601 et seq., 42 U.S.C.
Section 2601 et seq., 49 U.S.C. Section 1802 et seq. and
Massachusetts General Laws, Chapter 21E and the rules and regulations
promulgated under any of the foregoing, as such laws, rules and
regulations may be amended from time to time (collectively "Hazardous
Materials Laws"), (ii) Tenant shall immediately notify Landlord of
any incident in, on or about the Premises, the Building or the Site
that would require the filing of a notice under any Hazardous
Materials Laws, (iii) Tenant shall comply and shall cause its
employees, invitees, agents, independent contractors, contractors,
assignees and subtenants to comply with each of the foregoing and (iv)
Landlord shall have the right to make such inspections (including
testing) as Landlord shall elect from time to time to determine that
Tenant is complying with the foregoing. Notwithstanding the foregoing,
Tenant may use normal amounts and types of substances typically used
for office uses, provided that Tenant uses such substances in the
manner which they are normally used, and in compliance with all
Hazardous Materials Laws and other applicable laws, ordinances,
bylaws, rules and regulations, and Tenant obtains and complies with
all permits required by Hazardous Materials Laws or any other laws,
ordinances, bylaws, rules or regulations prior to the use or presence
of any such substances in the Premises.
(B) Landlord represents to Tenant that to the best of Landlord's
actual knowledge as of the date of this Lease, based upon and except
as provided in the Report on Oil and Hazardous Material Site
Evaluation prepared by Dames & ▇▇▇▇▇ and dated August 29, 1996, and
the Preliminary Asbestos Survey prepared by ▇▇▇▇▇▇ Associates, Inc.
and dated April 26, 1990 and Waste Shipment Manifest Numbers 008549
and 008514 and letters from Environmental Remediation Services to
Dec-Tam Corporation dated May 13, 1996, May 15, 1996, May 16, 1996,
May 17, 1996 and May 20, 1996, copies of which have been provided to
Tenant, there is no asbestos or Hazardous Materials in the Premises
which are required to be removed or remediated by Hazardous Materials
Laws.
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5.4 Not to obstruct in any manner any portion of the Building not hereby
leased or any portion thereof or of the Site used by Tenant in common
with others; not without prior consent of Landlord to permit the
painting or placing of any signs, curtains, blinds, shades, awnings,
aerials or flagpoles, or the like, visible from outside the Premises;
and to comply with all reasonable Rules and Regulations now or
hereafter made by Landlord of general applicability to all tenants in
the Building, of which Tenant has been given notice, for the care and
use of the Building and Site and their facilities and approaches;
Landlord shall not be liable to Tenant for the failure of other
occupants of the Building to conform to such Rules and Regulations.
5.5 To keep the Premises equipped with all safety appliances required by
any public authority because of any use made by Tenant other than
normal office use, and to procure all licenses and permits so required
because of such use and, if requested by Landlord, to do any work so
required because of such use, it being understood that the foregoing
provisions shall not be construed to broaden in any way Tenant's
Permitted Uses.
5.6 Except as otherwise expressly provided herein, Tenant covenants and
agrees that it shall not assign, mortgage, pledge, hypothecate or
otherwise transfer this Lease and/or Tenant's interest in this Lease
or sublet (which term, without limitation, shall include granting of
concessions, licenses or the like) the whole or any part of the
Premises. Any assignment, mortgage, pledge, hypothecation, transfer or
subletting not expressly permitted in or consented to by Landlord
under Sections 5.6.1-5.6.6 shall be void, ab initio; shall be of no
force and effect; and shall confer no rights on or in favor of third
parties. In addition, Landlord shall be entitled to seek specific
performance of or other equitable relief with respect to the
provisions hereof.
5.6.1 Notwithstanding the provisions of Section 5.6 above and the
provisions of Section 5.6.2, 5.6.3 and 5.6.5 below, Tenant shall
have the right to assign this Lease or to sublet the Premises (in
whole or in part) to (i) any parent or subsidiary corporation of
Tenant or Moldflow, Inc. (ii) to any corporation into which Tenant
or Moldflow, Inc. may be converted or with which they may merge or be
consolidated or (iii) to any entity which acquires substantially all
of the assets or corporate stock of Tenant, provided that the entity
to which this Lease is so assigned or which so sublets the Premises
has a credit worthiness (e.g. assets on a pro forma basis using
generally accepted accounting principles consistently applied and
using the most recent financial statements) which in Landlord's
reasonable determination is sufficient to perform the obligations
of Tenant under this Lease. Any such assignment or subletting shall
be subject to the provisions of Section 5.6.4 and Section 5.6.6 below.
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5.6.2 Notwithstanding the provisions of Section 5.6 above, in the event
Tenant desires to assign this Lease or to sublet the Premises in
whole but not in part (no partial subletting being permitted other
than as provided in Section 5.6.1), Tenant shall notify Landlord
thereof in writing and Landlord shall have the right at its sole
option, to be exercised within thirty (30) days after receipt of
Tenant's notice, to terminate this Lease as of a date specified in
a notice to Tenant, which date shall not be earlier than sixty (60)
days nor later than one hundred and twenty (120) days after
Landlord's notice to Tenant; provided, however, that upon the
termination date as set forth in Landlord's notice, all obligations
relating to the period after such termination date (but not those
relating to the period before such termination date) shall cease and
promptly upon being billed therefor by Landlord, Tenant shall make
final payment of all rent and Additional Rent due from Tenant through
the termination date.
In the event that Landlord shall not exercise its termination rights
as aforesaid, or shall fail to give any or timely notice, the
provisions of Sections 5.6.3-5.6.6 shall be applicable. This Section
5.6.2 shall not be applicable to an assignment or sublease pursuant
to Section 5.6.1.
5.6.3 Notwithstanding the provisions of Section 5.6 above, BUT subject to
the provisions of this Section 5.6.3 and the provisions of Sections
5.6.4, 5.6.5 and 5.6.6 below, in the event that Landlord shall not
have exercised the termination right as set forth in Section 5.6.2,
then for a period of one hundred twenty (120) days after the receipt
of Tenant's notice referred to in Section 5.6.2, Tenant shall have the
right to assign this Lease or sublet the whole (but not part) of the
Premises in accordance with Tenant's notice to Landlord given as
provided in Section 5.6.4 provided that, in each instance, Tenant
first obtains the express prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed. Landlord
shall not be deemed to be unreasonably withholding its consent to
such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is not of a
character consistent with the operation of a first
class office building (by way of example Landlord
shall not be deemed to be unreasonably withholding
its consent to an assignment or subleasing to any
governmental agency), or
(b) the proposed assignee or subtenant is not of good
character and reputation, or
(c) the proposed assignee or subtenant does not possess
adequate financial capability to perform the Tenant
obligations as and when due or required, or
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(d) the assignee or subtenant proposes to use the
Premises (or part thereof) for a purpose other than
the purpose for which the Premises may be used as
stated in Section 1.1 hereof, or
(e) the character of the business to be conducted or the
proposed use of the Premises by the proposed
subtenant or assignee shall (i) be likely to increase
Landlord's Operating Expenses beyond that which
Landlord now incurs for use by Tenant; (ii) be likely
to increase the burden on elevators or other Building
systems or equipment over the burden prior to such
proposed subletting or assignment; or (iii) violate
or be likely to violate any provisions or
restrictions contained herein relating to the use or
occupancy of the Premises, or
(f) there shall be existing an Event of Default (defined in
Section 7.1).
5.6.4 Tenant shall give Landlord notice of any proposed sublease or
assignment, and said notice shall specify the provisions of the
proposed assignment or subletting, including (a) the name and
address of the proposed assignee or subtenant, (b) in the case
of a proposed assignment or subletting pursuant to Section 5.6.2,
such information as to the proposed assignee's or proposed
subtenant's net worth and financial capability and standing as may
reasonably be required for Landlord to make the determination
referred to in Section 5.6.3 above (provided, however, that
Landlord shall hold such information confidential having the right to
release same to its officers, accountants, attorneys and mortgage
lenders on a confidential basis), (c) all of the terms and provisions
upon which the proposed assignment or subletting is to be made,
(d) in the case of a proposed assignment or subletting pursuant to
Section 5.6.2, all other information necessary to make the
determination referred to in Section 5.6.3 above and (e) in the case
of a proposed assignment or subletting pursuant to Section 5.6.1
above, such information as may be reasonably required by Landlord to
determine that such proposed assignment or subletting complies with
the requirements of said Section 5.6.1. No partial subletting shall
be permitted except as provided in Section 5.6.1.
If Landlord shall consent to the proposed assignment or subletting, as
the case may be, then, in such event, Tenant may thereafter sublease
(the whole but not part of the Premises) or assign pursuant to Tenant's
notice, as given hereunder; provided, however, that if such assignment
or sublease shall not be executed and delivered to Landlord within
ninety (90) days after the date of Landlord's consent, the consent
shall be deemed null and void and the provisions of Section 5.6.2
shall be applicable.
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5.6.5 In addition, in the case of any assignment or subleasing as to which
Landlord may consent (other than an assignment or subletting permitted
under Section 5.6.1 hereof) such consent shall be upon the express and
further condition, covenant and agreement, and Tenant hereby covenants
and agrees that, in addition to the Annual Fixed Rent, Additional Rent
and other charges to be paid pursuant to this Lease, fifty percent
(50%) of the "Assignment/Sublease Profits" (hereinafter defined), if
any, shall be paid to Landlord.
The "Assignment/Sublease Profits" shall be the excess, if any, of (a)
the "Assignment/Sublease Net Revenues" as hereinafter defined over (b)
the Annual Fixed Rent and Additional Rent and other charges provided
in this Lease. The "Assignment/Sublease Net Revenues" shall be the
fixed rent, Additional Rent and all other charges and sums payable
either initially or over the term of the sublease or assignment PLUS
all other profits and increases to be derived by Tenant as a result
of such subletting or assignment, less the reasonable costs of Tenant
incurred in such subleasing or assignment (the definition of which
shall include but not necessarily be limited to rent concessions,
brokerage commissions and alteration allowances) amortized over the
term of the sublease or assignment.
All payments of the Assignment/Sublease Profits due Landlord shall be
made within ten (10) days of receipt of same by Tenant.
5.6.6 (A) It shall be a condition of the validity of any assignment or
subletting of right under Section 5.6.1 above, or consented to under
Section 5.6.3 above, that the assignee or sublessee agrees directly
with Landlord, in form reasonably satisfactory to Landlord, to be
bound by all the obligations of the Tenant hereunder, including,
without limitation, the obligation to pay the rent and other amounts
provided for under this Lease to the extent of the payments which such
assignee or subtenant is obligated to make to Tenant pursuant to such
sublease or assignment including the provisions of Sections 5.6
through 5.6.6 hereof, but such assignment or subletting shall not
relieve the Tenant named herein of any of the obligations of the
Tenant hereunder, Tenant shall remain fully and primarily liable
therefor and the liability of Tenant and such assignee (or subtenant,
as the case may be) shall be joint and several. Further, and
notwithstanding the foregoing, the provisions hereof shall not
constitute a recognition of the assignment or the assignee thereunder
or the sublease or the subtenant thereunder, as the case may be, and
at Landlord's option, upon the termination of the Lease, the
assignment or sublease shall be terminated.
(B) As Additional Rent, Tenant shall reimburse Landlord promptly for
reasonable out of pocket legal and other expenses incurred by Landlord
in connection with any request
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by Tenant for consent to assignment or subletting in an amount not to
exceed $1,000.00 for each request.
(C) If this Lease be assigned, or if the Premises or any part thereof
be sublet or occupied by anyone other than Tenant, Landlord may upon
prior notice to Tenant, at any time and from time to time, collect
rent and other charges from the assignee, sublessee or occupant and
apply the net amount collected to the rent and other charges herein
reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of this covenant, or a waiver of the
provisions of Sections 5.6 through 5.6.6 hereof, or the acceptance of
the assignee, sublessee or occupant as a tenant or a release of
Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained, the Tenant herein named to remain
primarily liable under this Lease.
(D) The consent by Landlord to an assignment or subletting under any
of the provisions of Sections 5.6.1 or 5.6.3 shall in no way be
construed to relieve Tenant from obtaining the express consent in
writing to Landlord to any further assignment or subletting.
5.7 To defend with counsel first approved by Landlord (which approval shall
not be unreasonably withheld or delayed), save harmless, and indemnify
Landlord from any liability for injury, loss, accident or damage to any
person or property, and from any claims, actions, proceedings and
expenses and costs in connection therewith (including without
limitation reasonable counsel fees) (i) arising from or claimed to have
arisen from (a) the omission, fault, willful act, negligence or other
misconduct of Tenant or Tenant's contractors, licensees, invitees,
agents, servants, independent contractors or employees or (b) any use
made or thing done or occurring on the Premises not due to the
omission, fault, willful act, negligence or other misconduct of
Landlord, or (ii) resulting from the failure of Tenant to perform and
discharge its covenants and obligations under this Lease; to maintain
commercial general liability insurance or comprehensive general
liability insurance written on an occurrence basis with a broad form
comprehensive liability endorsement covering the Premises insuring
Landlord and Landlord's managing agent (and such persons as are in
privity of estate with Landlord and Landlord's managing agent as may be
set out in notice from time to time) as additional insureds as well as
Tenant with limits which shall, at the commencement of the Term, be at
least equal to those stated in Section 1.1 and from time to time during
the Term shall be for such higher limits, if any, as are customarily
carried in Greater Boston with respect to similar properties or which
may reasonably be required by Landlord, and workmen's compensation
insurance with statutory limits covering all of Tenant's employees
working in the Premises, and to deposit with Landlord on or before the
Commencement Date and concurrent with all renewals thereof,
certificates for such insurance bearing the
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endorsement that the policies will not be canceled until after thirty
(30) days' written notice to Landlord. All insurance required to be
maintained by Tenant pursuant to this Lease shall be maintained with
responsible companies qualified to do business, and in good standing,
in the Commonwealth of Massachusetts and which have a rating of at
least "A-" and are within a financial size category of not less than
"Class VIII" in the most current Best's Key Rating Guide or such
similar rating as may be reasonably selected by Landlord if such
Guide is no longer published.
5.8 That all of the furnishings, fixtures, equipment, effects and property
of every kind, nature and description of Tenant and of all persons
claiming by, through or under Tenant which, during the continuance of
this Lease or any occupancy of the Premises by Tenant or anyone
claiming under Tenant, may be on the Premises or elsewhere in the
Building or on the Site, shall be at the sole risk and hazard of
Tenant, and if the whole or any part thereof shall be destroyed or
damaged by fire, water or otherwise, or by the leakage or bursting of
water pipes, or other pipes, by theft or from any other cause, no part
of said loss or damage is to be charged to or be borne by Landlord,
except that Landlord shall in no event be indemnified or held harmless
or exonerated from any liability to Tenant or to any other person, for
any injury, loss, damage or liability to the extent such indemnity,
hold harmless or exoneration is prohibited by law. Further, Tenant, at
Tenant's expense, shall maintain at all times during the Term of this
Lease insurance against loss or damage covered by the so-called "all
risk" type insurance coverage with respect to Tenant's fixtures,
equipment, goods, wares and merchandise, tenant improvements made by or
paid for by Tenant, and other property of Tenant (collectively
"Tenant's Property"). Such insurance shall be in an amount at least
equal to the full replacement cost of Tenant's Property.
5.9 To permit Landlord and its agents to examine the Premises at reasonable
times and, if Landlord shall so elect, to make any repairs or
replacements Landlord may deem necessary; to remove, at Tenant's
expense, any alterations, addition, signs, curtains, blinds, shades,
awnings, aerials, flagpoles, or the like not consented to in writing;
and to show the Premises to prospective tenants during the nine (9)
months preceding expiration of the Term and to prospective purchasers
and mortgagees at all reasonable times. Upon reasonable prior written
or verbal notice, except in the event of an emergency, Landlord shall
make reasonable efforts not to unreasonably interfere with Tenant's
business during any entry to the Premises pursuant to this Section 5.9.
5.10 Not to place a load upon the Premises exceeding an average rate of 100
pounds of live load per square foot of floor area (partitions shall be
considered as part of the live load); and not to move any safe, vault
or other heavy equipment in, about or out of the Premises except in
such manner and at such time as Landlord shall in each instance
authorize;
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Tenant's business machines and mechanical equipment which
cause vibration or noise that may be transmitted to the Building
structure or to any other space in the Building shall be so installed,
maintained and used by Tenant so as to eliminate such vibration or
noise.
5.11 To pay promptly when due all taxes which may be imposed upon
Tenant's Property in the Premises to whomever assessed.
5.12 To comply with all applicable Legal Requirements now or hereafter in
force which shall impose a duty on Landlord or Tenant relating to or as
a result of the use or occupancy of the Premises; provided that Tenant
shall not be required to make any alterations or additions to the
structure, roof, exterior and load bearing walls, foundation,
structural floor slabs, common areas and other structural elements of
the Building unless the same are required by such Legal Requirements as
a result of or in connection with Tenant's use or occupancy of the
Premises beyond normal use of space of this kind. Tenant shall promptly
pay all fines, penalties and damages that may arise out of or be
imposed because of its failure to comply with the provisions of this
Section 5.12. Tenant shall not be responsible for the compliance of the
common areas with the Federal Americans with Disabilities Act (the
"ADA") except for compliance required because of Tenants use or
occupancy of the Premises beyond normal use of space of this kind or
because of improvements in the Premises performed by or for Tenant.
5.13 To pay as Additional Rent all reasonable costs, counsel and other fees
incurred by Landlord in connection with the successful enforcement by
Landlord of any obligations of Tenant under this Lease.
ARTICLE VI
CASUALTY AND TAKING
6.1 In case during the Lease Term the Building or the Site are damaged by
fire or other casualty and such fire or casualty damage cannot, in the
ordinary course, reasonably be expected to be repaired within one
hundred fifty (150) days from the time that repair work would commence,
Landlord may, at its election, terminate this Lease by notice given to
Tenant within sixty (60) days after the date of such fire or other
casualty, specifying the effective date of termination. The effective
date of termination specified by Landlord shall not be less than thirty
(30) days nor more than forty-five (45) days after the date of notice
of such termination.
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In case during the last year of the Lease Term, the Premises are
damaged by fire or other casualty and such fire or casualty damage
cannot, in the ordinary course, reasonably be expected to be repaired
within one hundred fifty (150) days (and/or as to special work or work
which requires long lead time then if such work cannot reasonably be
expected to be repaired within such additional time as is reasonable
under the circumstances given the nature of the work) from the time
that repair work would commence, Tenant may, at its election, terminate
this Lease by notice given to Landlord within sixty (60) days after the
date of such fire or other casualty, specifying the effective date of
termination. The effective date of termination specified by Tenant
shall be not less than thirty (30) days nor more than forty-five (45)
days after the date of notice of such termination.
Unless terminated pursuant to the foregoing provisions, this Lease
shall remain in full force and effect following any such damage
subject, however, to the following provisions.
If the Building or the Site or any part thereof are damaged by fire or
other casualty and this Lease is not so terminated, or Landlord or
Tenant have no right to terminate this Lease, and in any such case the
holder of any mortgage which includes the Building as a part of the
mortgaged premises or any ground lessor of any ground lease which
includes the Site as part of the demised premises allows the net
insurance proceeds to be applied to the restoration of the Building
(and/or the Site), Landlord shall, promptly after such damage and the
determination of the net amount of insurance proceeds available, use
due diligence to restore the Premises and the Building in the event of
damage thereto (excluding Tenant's Property) into substantially the
same condition they were in prior to the damage and a just proportion
of the Annual Fixed Rent, Tenant's share of Operating Costs and
Tenant's share of real estate taxes shall be abated according to the
nature and extent of the injury to the Premises, until the Premises
shall have been restored by Landlord substantially into such condition
except for punch list items and long lead items. Notwithstanding
anything herein contained to the contrary, Landlord shall not be
obligated to expend for such repair and restoration any amount in
excess of the net insurance proceeds. If such net insurance proceeds
are not allowed by such mortgagee or ground lessor to be applied to, or
are insufficient for, the restoration of the Building and if Landlord
does not otherwise elect to restore the Building, then Landlord shall
give prompt notice to Tenant terminating this Lease, the effective date
of which termination shall not be less than sixty (60) days after the
date of notice of such termination.
If such restoration is not completed within ten (10) months from the
date of the fire or casualty, such period to be subject, however, to
extension where the delay in completion of such work is due to causes
beyond Landlord's reasonable control (but in no event beyond sixteen
(16) months from the date of the fire or casualty), Tenant shall have
the
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right to terminate this Lease at any time after the expiration of
such ten-month period (as extended), which right shall continue until
the restoration is substantially completed. Such termination shall be
effective as of the thirtieth (30th) day after the date of receipt by
Landlord of Tenant's notice, with the same force and effect as if such
date were the date originally established as the expiration date hereof
unless, within thirty (30) days after Landlord's receipt of Tenant's
notice, such restoration is substantially completed, in which case
Tenant's notice of termination shall be of no force and effect and this
Lease and the Lease Term shall continue in full force and effect.
6.2 Notwithstanding anything to the contrary contained in this Lease, if
the Building or the Premises shall be substantially damaged by fire or
casualty as the result of a risk not covered by the forms of casualty
insurance at the time maintained by Landlord and such fire or casualty
damage cannot, in the ordinary course, reasonably be expected to be
repaired within ninety (90) days from the time that repair work would
commence, Landlord may, at its election, terminate the Term of this
Lease by notice to the Tenant given within thirty (30) days after such
loss. If Landlord shall give such notice, then this Lease shall
terminate as of the date of such notice with the same force and effect
as if such date were the date originally established as the expiration
date hereof.
6.3 If the entire Building, or such portion of the Premises as to render
the balance (if reconstructed to the maximum extent practicable in the
circumstances) unsuitable for Tenant's purposes, shall be taken by
condemnation or right of eminent domain, Landlord or Tenant shall have
the right to terminate this Lease by notice to the other of its desire
to do so, provided that such notice is given not later than thirty (30)
days after Tenant has been deprived of possession. If either party
shall give such notice, then this Lease shall terminate as of the date
of such notice with the same force and effect as if such date were the
date originally established as the expiration date hereof.
Further, if so much of the Building shall be so taken that continued
operation of the Building would be uneconomic as a result of the
taking, Landlord shall have the right to terminate this Lease by giving
notice to Tenant of Landlord's desire to do so not later than thirty
(30) days after Tenant has been deprived of possession of the Premises
(or such portion thereof as may be taken). If Landlord shall give such
notice, then this Lease shall terminate as of the date of such notice
with the same force and effect as if such date were the date originally
established as the expiration date hereof.
Should any part of the Premises be so taken or condemned during the
Lease Term hereof, and should this Lease not be terminated in
accordance with the foregoing provisions, and the holder of any
mortgage which includes the Premises as part of the mortgaged premises
or any ground lessor of any ground lease which includes the Site as
part of the
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demised premises allows the net condemnation proceeds to be
applied to the restoration of the Building, Landlord agrees, after the
determination of the net amount of condemnation proceeds available to
Landlord, to use due diligence to put what may remain of the Premises
into proper condition for use and occupation as nearly like the
condition of the Premises prior to such taking as shall be practicable
(excluding Tenant's Property). Notwithstanding the foregoing, Landlord
shall not be obligated to expend for such repair and restoration any
amount in excess of the net condemnation proceeds.
If the Premises shall be affected by any exercise of the power of
eminent domain, then the Annual Fixed Rent, Tenant's share of operating
costs and Tenant's share of real estate taxes shall be justly and
equitably abated and reduced according to the nature and extent of the
loss of use thereof suffered by Tenant; and in case of a taking which
permanently reduces the Rentable Floor Area of the Premises, a just
proportion of the Annual Fixed Rent, Tenant's share of operating costs
and Tenant's share of real estate taxes shall be abated for the
remainder of the Lease Term.
6.4 Landlord shall have and hereby reserves to itself any and all rights to
receive awards made for damages to the Premises, the Building, the
Complex and the Site and the leasehold hereby created, or any one or
more of them, accruing by reason of exercise of eminent domain or by
reason of anything lawfully done in pursuance of public or other
authority. Tenant hereby grants, releases and assigns to Landlord all
Tenant's rights to such awards, and covenants to execute and deliver
such further assignments and assurances thereof as Landlord may from
time to time request, and if Tenant shall fail to execute and deliver
the same within fifteen (15) days after notice from Landlord, Tenant
hereby covenants and agrees that Landlord shall be irrevocably
designated and appointed as its attorney-in-fact to execute and deliver
in Tenant's name and behalf all such further assignments thereof which
conform with the provisions hereof.
Nothing contained herein shall be construed to prevent Tenant from
prosecuting in any condemnation proceeding a claim for the value of any
of Tenant's usual trade fixtures installed in the Premises by Tenant at
Tenant's expense and for relocation and moving expenses, provided that
such action and any resulting award shall not affect or diminish the
amount of compensation otherwise recoverable by Landlord from the
taking authority.
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ARTICLE VII
DEFAULT
7.1 (a) If at any time subsequent to the date of this Lease any one or more
of the following events (herein sometimes called an "Event of Default")
shall occur:
(i) Tenant shall fail to pay the fixed rent, Additional
Rent or other charges for which provision is made
herein on or before the date on which the same become
due and payable, and the same continues for five (5)
days after notice from Landlord thereof, or
(ii) Landlord having rightfully given the notice specified
in subdivision (a) above twice in any calendar year,
Tenant shall thereafter in the same calendar year
fail to pay the fixed rent, Additional Rent or other
charges on or before the date on which the same
become due and payable, or,
(iii) Tenant shall neglect or fail to perform or observe
any other covenant herein contained on Tenant's part
to be performed or observed and Tenant shall fail to
remedy the same within thirty (30) days after notice
to Tenant specifying such neglect or failure, or if
such failure is of such a nature that Tenant cannot
reasonably remedy the same within such thirty (30)
day period, Tenant shall fail to commence promptly to
remedy the same and to prosecute such remedy to
completion with diligence and continuity; or
(iv) Tenant's leasehold interest in the Premises shall be
taken on execution or by other process of law
directed against Tenant; or
(v) Tenant shall make an assignment for the benefit of
creditors or shall file a voluntary petition in
bankruptcy or shall be adjudicated bankrupt or
insolvent, or shall file any petition or answer
seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar
relief for itself under any present or future
Federal, State or other statute, law or regulation
for the relief of debtors, or shall seek or consent
to or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or of all or any
substantial part of its properties, or shall admit
in writing its inability to pay its debts generally
as they become due; or
(vi) A petition shall be filed against Tenant in
bankruptcy or under any other law seeking any
reorganization, arrangement, composition,
readjustment,
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liquidation, dissolution, or similar relief under any
present or future Federal, State or other statute,
law or regulation and shall remain undismissed or
unstayed for an aggregate of sixty (60) days
(whether or not consecutive), or if any debtor in
possession (whether or not Tenant) trustee, receiver
or liquidator of Tenant or of all or any substantial
part of its properties or of the Premises shall be
appointed without the consent or acquiescence of
Tenant and such appointment shall remain unvacated
or unstayed for an aggregate of sixty (60) days
(whether or not consecutive)--
then, and in any of said cases (notwithstanding any license of a former
breach of covenant or waiver of the benefit hereof or consent in a
former instance), Landlord lawfully may, immediately or at any time
thereafter, and without demand or further notice terminate this Lease
by notice to Tenant, specifying a date not less than ten (10) days
after the giving of such notice on which this Lease shall terminate,
and this Lease shall come to an end on the date specified therein as
fully and completely as if such date were the date herein originally
fixed for the expiration of the Lease Term (Tenant hereby waiving any
rights of redemption), and Tenant will then quit and surrender the
Premises to Landlord, but Tenant shall remain liable as hereinafter
provided.
(b) If This Lease shall have been terminated as provided in this
Article, then Landlord may, without notice, re-enter the Premises,
either by force, summary proceedings, ejectment or otherwise, and
remove and dispossess Tenant and all other persons and any and all
property from the same, as if this Lease had not been made, and Tenant
hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to that end.
(c) In the event that this Lease is terminated under any of the
provisions contained in Section 7.1 (a) or shall be otherwise
terminated by breach of any obligation of Tenant, Tenant covenants and
agrees forthwith to pay and be liable for, on the days originally fixed
herein for the payment thereof, amounts equal to the several
installments of rent and other charges reserved as they would, under
the terms of this Lease, become due if this Lease had not been
terminated or if Landlord had not entered or re-entered, as aforesaid,
and whether the Premises be relet or remain vacant, in whole or in
part, or relet for a period less than the remainder of the Term, and
for the whole thereof, but in the event the Premises be relet by
Landlord, Tenant shall be entitled to a credit in the net amount of
rent and other charges received by Landlord in reletting, after
deduction of all expenses incurred in reletting the Premises
(including, without limitation, remodeling costs, brokerage fees and
the like), and in collecting the rent in connection therewith, in the
following manner:
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Amounts received by Landlord after reletting shall first be applied
against such Landlord's expenses, until the same are recovered, and
until such recovery, Tenant shall pay, as of each day when a payment
would fall due under this Lease, the amount which Tenant is obligated
to pay under the terms of this Lease (Tenant's liability prior to any
such reletting and such recovery not in any way to be diminished as a
result of the fact that such reletting might be for a rent higher than
the rent provided for in this Lease); when and if such expenses have
been completely recovered, the amounts received from reletting by
Landlord as have not previously been applied shall be credited against
Tenant's obligations as of each day when a payment would fall due under
this Lease, and only the net amount thereof shall be payable by Tenant.
Further, amounts received by Landlord from such reletting for any
period shall be credited only against obligations of Tenant allocable
to such period, and shall not be credited against obligations of Tenant
hereunder accruing subsequent or prior to such period; nor shall any
credit of any kind be due for any period after the date when the term
of this Lease is scheduled to expire according to its terms.
(d)(i) At any time after such termination and whether or not Landlord
shall have collected any damages as aforesaid, Tenant shall pay to
Landlord as liquidated final damages and in lieu of all other damages
beyond the date of notice from Landlord to Tenant, at Landlord's
election, such a sum as at the time of the giving of such notice
represents the amount of the excess, if any, of the total rent and
other benefits which would have accrued to Landlord under this Lease
from the date of such notice for what would be the then unexpired Lease
Term if the Lease terms had been fully complied with by Tenant over and
above the then cash rental value (in advance) of the Premises for the
balance of the Lease Term.
(d)(ii) For the purposes of this Article, if Landlord elects to require
Tenant to pay damages in accordance with the immediately preceding
paragraph, the total rent shall be computed by assuming that Tenant's
share of excess taxes, Tenant's share of excess operating costs and
Tenant's share of excess electrical costs would be, for the balance of
the unexpired Term from the date of such notice, the amount thereof (if
any) for the immediately preceding annual period payable by Tenant to
Landlord.
(e) In case of any Event of Default, re-entry, dispossession by summary
proceedings or otherwise, Landlord may (i) re-let the Premises or any
part or parts thereof, either in the name of Landlord or otherwise, for
a term or terms which may at Landlord's option be equal to or less than
or exceed the period which would otherwise have constituted the balance
of the Term of this Lease and may grant commercially reasonable
concessions or free rent to the extent that Landlord considers
advisable or necessary to re-let the same and (ii) may make such
alterations, repairs and decorations in the Premises as Landlord in
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its sole judgment considers advisable or necessary for the purpose of
reletting the Premises; and the making of such alterations, repairs and
decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be liable
in any way whatsoever for failure to re-let the Premises, or, in the
event that the Premises are re-let, for failure to collect the rent
under re-letting. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event
of Tenant being evicted or dispossessed, or in the event of Landlord
obtaining possession of the Premises, by reason of the violation by
Tenant of any of the covenants and conditions of this Lease.
(f) The specified remedies to which Landlord may resort hereunder are
not intended to be exclusive of any remedies or means of redress to
which Landlord may at any time be entitled lawfully, and Landlord may
invoke any remedy (including the remedy of specific performance)
allowed at law or in equity as if specific remedies were not herein
provided for. Further, nothing contained in this Lease shall limit or
prejudice the right of Landlord to prove 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 proved, whether or not the amount be greater, equal
to, or less than the amount of the loss or damages referred to above.
7.2 Landlord shall in no event be in default in the performance of any of
Landlord's obligations hereunder unless and until Landlord shall have
failed to perform such obligations within thirty (30) days, or such
additional time as is reasonably required to correct any such default,
after notice by Tenant to Landlord properly specifying wherein Landlord
has failed to perform any such obligation.
ARTICLE VIII
8.1 Tenant covenants and agrees that Tenant will not do or permit anything
to be done in or upon the Premises, or bring in anything or keep
anything therein, which shall invalidate or increase the rate of
insurance on the Premises or on the Building above the standard rate
applicable to premises being occupied for the use to which Tenant has
agreed to devote the Premises; and Tenant further agrees that, in the
event that Tenant shall do any of the foregoing, Tenant will promptly
pay to Landlord, on demand, any such increase resulting therefrom,
which shall be due and payable as Additional Rent thereunder.
8.2 Failure on the part of Landlord or Tenant to complain of any action or
non-action on the part of the other, no matter how long the same may
continue, shall never be a waiver by
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Tenant or Landlord, respectively, of any of its rights hereunder.
Further, no waiver at any time of any of the provisions hereof by
Landlord or Tenant shall be construed as a waiver of any of the other
provisions hereof, and a waiver at any time of any of the provisions
hereof shall not be construed as a waiver at any subsequent time of
the same provisions. The consent or approval of Landlord or Tenant to
or of any action by the other requiring such consent or approval shall
not be construed to waive or render unnecessary Landlord's or Tenant's
consent or approval to or of subsequent similar act by the other.
No payment by Tenant, or acceptance by Landlord, of a lesser amount
than shall be due from Tenant to Landlord shall be treated otherwise
than as a payment on account. The acceptance by Landlord of a check for
a lesser amount with an endorsement or statement thereon, or upon any
letter accompanying such check, that such lesser amount is payment in
full, shall be given no effect, and Landlord may accept such check
without prejudice to any other rights or remedies which Landlord may
have against Tenant.
8.3 The specific remedies to which Landlord may resort under the terms of
this Lease are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which such party may be lawfully
entitled in case of any breach or threatened breach by Tenant of any
provisions of this Lease. In addition to the other remedies provided in
this Lease, Landlord shall be entitled to the restraint by injunction
of the violation or attempted or threatened violation of any of the
covenants, conditions or provisions of this Lease or to a decree
compelling specific performance of any such covenants, conditions or
provisions.
8.4 Tenant, subject to the terms and provisions of this Lease on payment of
the rent and observing, keeping and performing all of the terms and
provisions of this Lease on Tenant's part to be observed, kept and
performed, shall lawfully, peaceably and quietly have, hold, occupy and
enjoy the Premises during the Term, without hindrance or ejection by
any persons lawfully claiming under Landlord to have title to the
Premises superior to Tenant; the foregoing covenant of quiet enjoyment
is in lieu of any other covenant, express or implied; and it is
understood and agreed that this covenant and any and all other
covenants of Landlord contained in this Lease shall be binding upon
Landlord and Landlord's successors only with respect to breaches
occurring during Landlord's or Landlord's successors' respective
ownership of Landlord's interest hereunder, as the case may be.
Further, Tenant specifically agrees to look solely to Landlord's then
equity interest in the Building at the time owned, or in which Landlord
holds an interest as ground lessee, for recovery of any judgment from
Landlord; it being specifically agreed that neither Landlord (original
or successor), nor any partner in or of Landlord, nor any beneficiary
of
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any Trust of which any person holding Landlord's interest is
Trustee, shall ever be personally liable for any such judgment, or for
the payment of any monetary obligation to Tenant. The provision
contained in the foregoing sentence is not intended to, and shall not,
limit any right that Tenant might otherwise have to obtain injunctive
relief against Landlord or Landlord's successors in interest, or any
action not involving the personal liability of Landlord (original or
successor), any partner in or of Landlord, any successor Trustee to the
persons named herein as Landlord, or any beneficiary of any Trust of
which any person holding Landlord's interest is Trustee, to respond in
monetary damages from Landlord's assets other than Landlord's equity
interest aforesaid in the Building. In no event shall Landlord ever be
liable to Tenant for any indirect or consequential damages suffered by
Tenant from whatever cause.
8.5 After receiving notice from any person, firm or other entity that it
holds a mortgage which includes the Premises as part of the mortgaged
premises, or that it is the ground lessor under a lease with Landlord,
as ground lessee, which includes the Premises as a part of the demised
premises, no notice from Tenant to Landlord shall be effective unless
and until a copy of the same is given to such holder or ground lessor,
and the curing of any of Landlord's defaults by such holder or ground
lessor within a reasonable time thereafter (including a reasonable time
to obtain possession of the premises if the mortgagee or ground lessor
elects to do so) shall be treated as performance by Landlord. For the
purposes of this Section 8.5 or Section 8.15, the term "mortgage"
includes a mortgage on a leasehold interest of Landlord (but not one on
Tenant's leasehold interest).
8.6 With reference to any assignment by Landlord or Landlord's interest in
this Lease, or the rents payable hereunder, conditional in nature or
otherwise, which assignment is made to the holder of a mortgage or
ground lease on property which includes the Premises, Tenant agrees:
(a) That the execution thereof by Landlord, and the
acceptance thereof by the holder of such mortgage or
the ground lessor, shall never be treated as an
assumption by such holder or ground lessor of any of
the obligations of Landlord hereunder, unless such
holder, or ground lessor, shall, by notice sent to
Tenant, specifically otherwise elect; and
(b) That, except as aforesaid, such holder or ground
lessor shall be treated as having assumed Landlord's
obligations hereunder only upon foreclosure of such
holder's mortgage and the taking of possession of the
Premises, or, in the case of a ground lessor, the
assumption of Landlord's position hereunder by such
ground lessor.
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In no event shall the acquisition of title to the
Building and the land on which the same is located by
a purchaser which, simultaneously therewith, leases
the entire Building or such land back to the seller
thereof be treated as an assumption by such
purchaser-lessor, by operation of law or otherwise,
of Landlord's obligations hereunder, but Tenant shall
look solely to such seller-lessee, and its successors
from time to time in title, for performance of
Landlord's obligations hereunder subject to the
provisions of Section 8.4 hereof. In any such event,
this Lease shall be subject and subordinate to the
lease to such purchaser provided that such purchaser
agrees to recognize the right of Tenant to use and
occupy the Premises upon the payment of rent and
other charges payable by Tenant under this Lease and
the performance by Tenant of Tenant's obligations
under this Lease and provided that Tenant agrees to
attorn to such purchaser. For all purposes, such
seller-lessee, and its successors in title, shall be
the landlord hereunder unless and until Landlord's
position shall have been assumed by such
purchaser-lessor.
8.7 No act or thing done by Landlord during the Lease Term shall be deemed
an acceptance of a surrender of the Premises, and no agreement to
accept such surrender shall be valid, unless in writing signed by
Landlord. No employee of Landlord or of Landlord's agents shall have
any power to accept the keys of the Premises prior to the termination
of this Lease. The delivery of keys to any employee of Landlord or of
Landlord's agents shall not operate as a termination of the Lease or a
surrender of the Premises.
8.8 (A) Tenant warrants and represents that Tenant has not dealt with any
broker, finder or other agent in connection with the consummation of
this Lease other than the Recognized Brokers, if any, designated in
Section 1.1 hereof; and in the event any claim is made against the
Landlord relative to dealings by Tenant with brokers, finders or other
agents other than the Recognized Brokers, if any, designated in Section
1.1 hereof, Tenant shall defend the claim against Landlord with counsel
of Tenant's selection first approved by Landlord (which approval will
not be unreasonably withheld) and save harmless and indemnify Landlord
on account of loss, cost or damage which may arise by reason of such
claim.
(B) Landlord warrants and represents that Landlord has not dealt with
any broker, finder or other agent in connection with the consummation
of this Lease other than the Recognized Brokers, if any, designated in
Section 1.1 hereof; and in the event any claim is made against the
Tenant relative to dealings by Landlord with brokers, finders or other
agents other than the Recognized Brokers, if any, designated in Section
1.1 hereof, Landlord shall defend the claim against Tenant with counsel
of Landlord's selection and
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save harmless and indemnify Tenant on account of loss, cost or
damage which may arise by reason of such claim. Landlord agrees
that it shall be solely responsible for the payment of brokerage
commissions to the Recognized Brokers, if any, designated in
Section 1.1 hereof.
8.9 If any term or provision of this Lease, or the application thereof to
any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and
be enforced to the fullest extent permitted by law.
8.10 The obligations of this Lease shall run with the land, and except as
herein otherwise provided, the terms hereof shall be binding upon and
shall inure to the benefit of the successors and assigns, respectively,
of Landlord and Tenant and, if Tenant shall be an individual, upon and
to his heirs, executors, administrators, successors and assigns. Each
term and each provision of this Lease to be performed by Tenant shall
be construed to be both a covenant and a condition. The reference
contained to successors and assigns of Tenant is not intended to
constitute a consent to subletting or assignment by Tenant.
8.11 Tenant agrees not to record the within Lease, but each party hereto
agrees, on the request of the other, to execute a so-called Notice of
Lease or short form lease in form recordable and complying with
applicable law and reasonably satisfactory to both Landlord's and
Tenant's attorneys. In no event shall such document set forth rent or
other charges payable by Tenant under this Lease; and any such document
shall expressly state that it is executed pursuant to the provisions
contained in this Lease, and is not intended to vary the terms and
conditions of this Lease.
8.12 Whenever, by the terms of this Lease, notice shall or may be given
either to Landlord or to Tenant, such notice shall be in writing and
shall be sent by registered or certified mail or by recognized
overnight courier service postage prepaid:
If intended for Landlord, addressed to Landlord at the address
set forth on the first page of this Lease (or to such other
address or addresses as may from time to time hereafter be
designated by Landlord by like notice) with a copy to
Landlord, Attention: General Counsel.
If intended for Tenant, addressed to Tenant at the address set
forth on the second page of this Lease except that from and
after the Commencement Date the address of Tenant shall be the
Premises with a copy to ▇▇▇▇▇▇ & Dodge LLP, ▇▇▇ ▇▇▇▇▇▇
-▇▇-
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esquire (or to such other address or addresses as
may from time to time hereafter be designated by Tenant by
like notice).
Except as otherwise provided herein, all such notices shall be
effective when received; provided, that (i) if receipt is refused,
notice shall be effective upon the first occasion that such receipt is
refused or (ii) if the notice is unable to be delivered due to a change
of address of which no notice was given, notice shall be effective upon
the date such delivery was attempted.
Where provision is made for the attention of an individual or
department, the notice shall be effective only if the wrapper in which
such notice is sent is addressed to the attention of such individual or
department.
Time is of the essence with respect to any and all notices and periods
for giving notice or taking any action thereto under this Lease.
8.13 Employees or agents of Landlord have no authority to make or agree to
make a lease or any other agreement or undertaking in connection
herewith. The submission of this document for examination and
negotiation does not constitute an offer to lease, or a reservation of,
or option for, the Premises, and this document shall become effective
and binding only upon the execution and delivery hereof by both
Landlord and Tenant. All negotiations, considerations, representations
and understandings between Landlord and Tenant are incorporated herein
and may be modified or altered only by written agreement between
Landlord and Tenant, and no act or omission of any employee or agent of
Landlord shall alter, change or modify any of the provisions hereof.
8.14 The titles of the Articles throughout this Lease are for convenience
and reference only, and the words contained therein shall in no way be
held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this Lease.
8.15 This Lease shall be subject and subordinate to any mortgage now or
hereafter on the Site or the Building, or both, and to each advance
made or hereafter to be made under any mortgage, and to all renewals,
modifications, consolidations, replacements and extensions thereof and
all substitutions therefor provided that the holder of such mortgage
agrees to recognize the rights of Tenant under this Lease (including
the right to use and occupy the Premises) upon the payment of rent and
other charges payable by Tenant under this Lease and the performance by
Tenant of Tenant's obligations hereunder in which event Tenant shall
agree to attorn to such holder and its successors as landlord. In
confirmation of such subordination and recognition, Tenant shall
execute and deliver promptly such
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instruments of subordination and recognition as such mortgagee may
reasonably request. Tenant hereby appoints such mortgagee (from
time to time) as Tenant's attorney-in-fact to execute such
subordination upon default of Tenant in complying with such mortgagee's
(from time to time) request. In the event that any mortgagee or its
respective successor in title shall succeed to the interest of
Landlord, then, 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. If any holder of a mortgage which includes the
Premises, executed and recorded prior to the date of this Lease, shall
so elect, this Lease and the rights of Tenant hereunder, shall be
superior in right to the rights of such holder, with the same force
and effect as if this Lease had been executed, delivered and recorded,
or a statutory Notice hereof recorded, prior to the execution,
delivery and recording of any such mortgage. The election of any
such holder shall become effective upon either notice from such holder
to Tenant in the same fashion as notices from Landlord to Tenant are
to be given hereunder or by the recording in the appropriate registry
or recorder's office of an instrument in which such holder
subordinates its rights under such mortgage to this Lease.
8.16 Recognizing that Landlord may find it necessary to establish to third
parties, such as accountants, banks, potential or existing mortgagees,
potential purchasers or the like, the then current status of
performance hereunder, Tenant, on the request of Landlord made from
time to time, will promptly furnish to Landlord, or any existing or
potential holder of any mortgage encumbering the Premises, the
Building, the Site and/or the Complex or any potential purchaser of the
Premises, the Building, the Site and/or the Complex, (each an
"Interested Party"), a statement of the status of any matter pertaining
to this Lease, including, without limitation, acknowledgments that (or
the extent to which) each party is in compliance with its obligations
under the terms of this Lease. In addition, Tenant shall deliver to
Landlord, or any Interested Party designated by Landlord, financial
statements of Tenant and any guarantor of Tenant's obligations under
this Lease, as reasonably requested by Landlord, including, but not
limited to financial statements for the past three (3) years. Any such
status statement or financial statement delivered by Tenant pursuant to
this Section 8.16 may be relied upon by any Interested Party.
8.17 If Tenant shall at any time default in the performance of any
obligation under this Lease and such failure continues beyond the
expiration of any applicable notice, grace or cure period, Landlord
shall have the right, but shall not be obligated, to enter upon the
Premises and to perform such obligation notwithstanding the fact that
no specific provision for such substituted performance by Landlord is
made in this Lease with respect to such default. In performing such
obligation, Landlord may make any payment of money or perform any other
act. All sums so paid by Landlord (together with interest at the rate
of one and one-half percentage points over the then prevailing prime
rate in
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Boston as set by The First National Bank of Boston) and all
costs and expenses in connection with the performance of any such act
by Landlord, shall be deemed to be Additional Rent under this Lease and
shall be payable to Landlord immediately on demand. Landlord may
exercise the foregoing rights without waiving any other of its rights
or releasing Tenant from any of its obligations under this Lease.
8.18 Any holding over by Tenant after the expiration of the term of this
Lease shall be treated as a tenancy at sufferance at one and one-half
(1 1/2) the rents and other charges herein (prorated on a daily basis)
and shall otherwise be on the terms and conditions set forth in this
Lease, as far as applicable; provided, however, that neither the
foregoing nor any other term or provision of this Lease shall be deemed
to permit Tenant to retain possession of the Premises or hold over in
the Premises after the expiration or earlier termination of the Lease
Term.
8.19 Any insurance carried (or required to be carried) by either party with
respect to the Premises or property therein or occurrences thereon
shall, if it can be so written without additional premium or with an
additional premium which the other party agrees to pay, include a
clause or endorsement denying to the insurer rights of subrogation
against the other party to the extent rights have been waived by the
insured prior to occurrence of injury or loss. Each party,
notwithstanding any provisions of this Lease to the contrary, hereby
waives any rights of recovery against the other for injury or loss due
to hazards covered by such insurance to the extent of the
indemnification received thereunder.
8.20 If, in Section 1.1 hereof, a security deposit is specified, Tenant
agrees that the same will be paid upon execution and delivery of this
Lease, and that Landlord shall hold the same, throughout the term of
this Lease (including any extension thereof), 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 such deposit, or any part thereof, to Landlord's
damages arising from any default on the part of Tenant. If Landlord so
applies all or any portion of such deposit, Tenant shall within seven
(7) days after notice from Landlord deliver cash to Landlord in an
amount sufficient to restore such deposit to the full amount stated in
Section 1.1. Tenant not then being in default and having performed all
of its obligations under this Lease, including the payment of all
Annual Fixed Rent, Landlord shall return the deposit, or so much
thereof as shall not have theretofore been applied in accordance with
the terms of this Section 8.20 plus any interest earned thereon, to
Tenant on the expiration or earlier termination of the term of this
Lease and the surrender of possession of the Premises by Tenant to
Landlord in the condition required by this Lease at such time. While
Landlord holds such deposit, Landlord shall hold the same in an
interest bearing account and shall have the right to commingle the same
with
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Landlord's other funds. If Landlord conveys Landlord's interest
under this Lease, the deposit, or any part thereof not previously
applied, shall be turned over by Landlord to Landlord's grantee, and,
once so turned over, Tenant agrees to look solely to such grantee for
proper application of the deposit in accordance with the terms of this
Section 8.20, and the return thereof in accordance herewith.
Neither the holder of any mortgage nor the lessor in any ground lease
on property which includes the Premises shall ever be responsible to
Tenant for the return or application of any such deposit, whether or
not it succeeds to the position of Landlord hereunder, unless such
deposit shall have been received in hand by such holder or ground
lessor.
8.21 If Landlord shall not have received any payment or installment of rent
on or before the date (the "Due Date") on which the same first becomes
payable under this Lease, the amount of such payment or installment
shall bear interest from the Due Date through and including the date
such payment or installment is received by Landlord, at a rate equal to
the lesser of (i) the rate announced by The First National Bank of
Boston from time to time as its prime or base rate (or if such rate is
no longer available, a comparable rate reasonably selected by
Landlord), plus two percent (2%), or (ii) the maximum applicable legal
rate, if any. Such interest shall be deemed Additional Rent and shall
be paid by Tenant to Landlord upon demand.
8.22 This Lease shall be governed exclusively by the provisions hereof and
by the law of the Commonwealth of Massachusetts, as the same may from
time to time exist.
8.23 Tenant hereby irrevocably and unconditionally (a) submits to personal
jurisdiction in the Commonwealth of Massachusetts over any suit, action
or proceeding arising out of or relating to this Lease, and (b) waives
any and all personal rights under the laws of any state to object to
jurisdiction with respect to such suit, action or proceeding within the
Commonwealth of Massachusetts or venue in any particular forum within
the Commonwealth of Massachusetts. Tenant hereby appoints ▇▇▇▇▇▇▇
▇▇▇▇▇▇ at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ as its authorized
agent for service of process and agrees that methods of service of
process shall be, either, as determined by Landlord in Landlord's sole
discretion, (i) as provided for under applicable law or (ii) by
certified mail, return receipt requested to such authorized agent.
Nothing contained herein, however, shall prevent Landlord from
bringing any suit, action or proceeding or exercising any rights
against Tenant, in the Commonwealth of Massachusetts, or other
jurisdiction in which Tenant is located, all at Landlord's election,
and against any property of Tenant, in any other state. Initiating
such suit, action or proceeding or taking such action in any state
shall in no event constitute a waiver of the agreement contained
herein that the laws of the Commonwealth of Massachusetts shall govern
the rights and obligations of Tenant and Landlord or the
-48-
submission herein made by Tenant to personal jurisdiction within the
Commonwealth of Massachusetts.
EXECUTED as a sealed instrument in two or more counterparts each of
which shall be deemed to be an original.
LANDLORD:
WITNESS: By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, AS TRUSTEE OF
/s/ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ TRUST FOR
------------------------------ HIMSELF AND CO-TRUSTEE BUT NOT
INDIVIDUALLY
TENANT:
MOLDFLOW PTY. LTD
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name ▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title PRESIDENT (OR VICE PRESIDENT)
-----------------------------
HERETO DULY AUTHORIZED
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Title CHAIRMAN
-----------------------------
(OR ASSISTANT TREASURER)
HERETO DULY AUTHORIZED
(CORPORATE SEAL)
-49-
EXHIBIT A
That certain parcel of land situate in Lexington in the County of
Middlesex and Commonwealth of Massachusetts, described as follows:
SOUTHEASTERLY by ▇▇▇▇▇▇▇▇ Avenue, two hundred thirty-seven and
47/100 feet;
SOUTHEASTERLY by a curving line forming the junction of said
▇▇▇▇▇▇▇▇ Avenue and ▇▇▇▇▇▇▇▇ Place, as shown on plan
hereinafter mentioned, thirty-nine and 27/100 feet;
SOUTHWESTERLY five hundred thirty-two and 23/100 feet, and
SOUTHWESTERLY, SOUTHERLY and SOUTHEASTERLY one hundred ninety and
25/100 feet, by said ▇▇▇▇▇▇▇▇ Place;
SOUTHERLY by lot 9 on said plan, three hundred seventy-four
and 57/100 feet;
SOUTHWESTERLY three hundred sixty-seven and 65/100 feet;
NORTHWESTERLY thirty-one and 12/100 feet, and
NORTHWESTERLY again, eight hundred ninety and 63/100 feet, by land
now or formerly of The United States of America;
NORTHEASTERLY by said United States of America land and by land
now or formerly of ▇▇▇▇ ▇. O('Connor et al, nine
hundred thirty-three and 87/100 feet.
Said parcel is shown as lot 10 on said plan, (Plan No.31330D).
All of said boundaries are determined by the Court to be located as shown
on a subdivision plan, as approved by the Court, filed in the Land Registration
Office, a copy of which is filed in the Registry of Deeds for the South Registry
District of Middlesex County in Registration Book 835, Page 146, with
Certificate 141096.
The above described land is subject to and has the benefit of the ditches
as approximately shown on said plan at date of original decree, (May 17, 1963).
So much of the above described land as is included within the area marked
"Tennessee Gas Transmission Company Easement 30' wide" is subject to the
easements set forth in a taking by the Northeastern Gas Transmission Company,
dated July 13, 1951 and duly recorded in Book 7772, Page 162.
The above described land is subject to an Avigation Easement set forth in
a Declaration of Taking by the United States of America dated February 12, 1954
recorded with the Middlesex South District Registry of Deeds in Book 8219, Page
421 and more particularly shown as "Avigation Easement A-130E-1" on Plan No.
31330-D (referred to above).
The above described land is subject to an Order by the Town of Lexington
for construction of water main in ▇▇▇▇▇▇▇▇ Avenue, Document No. 461902 as
affected by Certificate for Dissolving Betterments filed as Document No. 499500.
The above described land is subject to a Grant of Easement from ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ et al Trs. to the Town of Lexington to construct and maintain sewer in
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇.
The above described land is subject to a grant of Easement over 20 feet
wide drain easement (i) for the benefit of lot 9 in common with others entitled
thereto, set forth in Document 511666 and (ii) set forth in Document No. 479843
for the benefit of lot 7 shown on plan recorded with said Document No. 479843.
The above described land is subject to a Taking of easement by the Town of
Lexington in ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇.
The above described land is subject to and has the benefit of a Grant of
Easement and Reservation from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ et al Trs. to the Town of
Lexington for conservation purposes, Document No. 616453.
The above described land is subject to and has the benefit of the
following:
A. Order of Conditions issued by the Town of Lexington
Conservation Commission filed as Document No. 616456 as
extended by Extension Permits issued by said Conservation
Commission filed as Document Nos. 627154, 635069, 655552 and
669180.
B. Decision of the Town of Lexington Board of Appeals filed as
Document No. 616457.
-2-
C. Decision of the Town of Lexington Board of Appeals filed as
Document No. 616458.
D. Decision of the Town of Lexington Board of Appeals filed as
Document No. 616459.
E. Decision of the Town of Lexington Board of Appeals filed as
Document No. 634489.
F. Decision of the Town of Lexington Board of Appeals filed as
Document No. 646344.
G. Decision of the Town of Lexington Board of Appeals filed as
Document No. 646345.
H. Decision of the Town of Lexington Board of Appeals filed as
Document No. 646346.
The above described land is subject to an Easement granted to Boston
Edison Company filed as Document No. 672152.
The above described land is subject to such other easements, agreements
and matters of record, if any, insofar as in force and applicable.
-3-
EXHIBIT A-1
Site Plan
[GRAPHIC]
SITE PLAN
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
[ILLEGIBLE]