Exhibit 10.7
WALTHAM WESTON CORPORATE CENTER
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
LEASE DATED January 14, 2002
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: STONY BROOK ASSOCIATES LLC, a
Delaware limited liability company
LANDLORD'S ORIGINAL c/o Boston Properties Limited
ADDRESS: Partnership
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
LANDLORD'S CONSTRUCTION ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
REPRESENTATIVE:
TENANT: OASIS SEMICONDUCTOR, INC., a
Delaware corporation
TENANT'S ORIGINAL ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
ADDRESS: ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TENANT'S CONSTRUCTION ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
REPRESENTATIVE:
SCHEDULED TERM COMMENCEMENT DATE: March 4, 2002
COMMENCEMENT DATE:
COMMENCEMENT DATE: As defined in Sections 2.4 and
3.2.
OUTSIDE COMPLETION DATE: June 1, 2002
TERM (SOMETIMES CALLED Seventy-two (72) calendar months
THE "ORIGINAL TERM"): (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 8.20 hereof
(sometimes called the "Extended
Term").
LEASE TERM: The total of the Original Term
and, if elected, the Extended
Term.
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
parking areas, decks and
structures and the Site.
TENANT'S SPACE: A portion of the first (1st) floor
of the Building in accordance with
the floor plan annexed hereto as
Exhibit D and incorporated herein
by reference.
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NUMBER OF Twenty-nine (29)
PARKING SPACES:
ANNUAL FIXED RENT: (a) For the period commencing on
the Commencement Date and ending
on the last day of the
twenty-fourth (24th) full calendar
month of the Original Term of this
Lease at the annual rate of
$235,296.00 (being the product of
(i) $32.00 and (ii) the "Rentable
Floor Area of Tenant's Space"
(hereinafter defined in this
Section 1.1)).
(b) For the period commencing on
the first day of the twenty-fifth
(25th) full calendar month of the
Original Term of this Lease and
ending on the last day of the
forty-eighth (48th) full calendar
month of the Original Term of this
Lease at the annual rate of
$246,325.50 (being the product of
(i) $33.50 and (ii) the Rentable
Floor Area of Tenant's Space).
(c) For the period commencing on
the first day of the forty-ninth
(49th) full calendar month of the
Original Term of this Lease and
ending on the last day of the
seventy-second (72nd) full
calendar month of the Original
Term of this Lease at the annual
rate of $275,355.00 (being the
product of (i) $35.00 and (ii) the
Rentable Floor Area of Tenant's
Space).
(d) During the Extended Term (if
exercised), as determined pursuant
to Section 8.20.
TENANT ELECTRICITY: Initially as provided in
Section 2.5 subject to adjustment
as provided in Section 2.8.
ADDITIONAL RENT: All charges and other sums payable
by Tenant as set forth in this
Lease, in addition to Annual Fixed
Rent.
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RENTABLE FLOOR AREA OF 7,353 square feet, determined
TENANT'S SPACE in accordance with the measurement
(SOMETIMES ALSO method described in Exhibit A-2
CALLED RENTABLE FLOOR attached hereto.
AREA OF THE PREMISES):
TOTAL RENTABLE FLOOR 304,000 square feet.
AREA OF THE BUILDING:
PERMITTED USE: General office purposes, together
with ancillary (i) laboratory use
for developing, constructing and
testing silicon chip boards and
(ii) repackaging and shipping of
semiconductor chips manufactured
off-site (the "Ancillary Uses"),
provided, however, that (x) such
Ancillary Uses are permitted under
the Zoning Ordinance for the City
of Waltham as from time to time in
effect and (y) no more than 500
square feet of rentable floor area
of the Premises are devoted
thereto at any given time.
INITIAL MINIMUM $3,000,000.00 combined single
LIMITS OF TENANT'S limit per occurrence on a per
COMMERCIAL GENERAL location basis.
LIABILITY INSURANCE:
BROKER: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company
SECURITY DEPOSIT: $78,432.00 (subject to reduction
as provided in Section 8.21)
1.2 EXHIBITS. There are incorporated as part of this Lease:
EXHIBIT A Description of Site
EXHIBIT A-1 Site Plan of Complex
EXHIBIT A-2 Measurement Method
EXHIBIT B Plan of Landlord's Work
EXHIBIT C Landlord's Services
EXHIBIT D Floor Plan
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EXHIBIT E Form of Commencement Date
Agreement
EXHIBIT F Broker Determination
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-BUILDING, 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 Habendum
2.5 Fixed Rent Payments
2.6 Operating Expenses
2.7 Real Estate Taxes
2.8 Tenant Electricity
ARTICLE III-CONDITION OF PREMISES; ALTERATIONS
3.1 Substantial Completion
3.2 Delays
3.3 General Provisions Applicable to Construction
3.4 Tenant Plan Excess Costs
3.5 Alterations
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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 Directory and Door Signs
4.1.5 Compliance with Laws
4.2 Interruptions and Delays in Services and Repairs, etc.
4.3 Landlord's Insurance
4.4 Landlord's Indemnity
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
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
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ARTICLE VI-CASUALTY AND TAKING
6.0 Landlord's Restoration Estimate
6.1 Damage Resulting from Casualty
6.2 Uninsured Casualty
6.3 Rights of Termination for Taking
6.4 Award
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
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
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8.16 Status Reports and Financial Statements
8.17 Self-Help
8.18 Holding Over
8.19 Non-Subrogation
8.20 Extension Option
8.21 Security Deposit
8.22 Late Payment
8.23 Extension Option
8.24 Security Deposit
8.25 Late Payment
8.26 Tenant's Payments
8.27 Waiver of Trial by Jury
8.28 Governing Law
8.29 Indirect or Consequential Damages
ARTICLE II
BUILDING, PREMISES, TERM AND RENT
2.1 THE PREMISES. 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, freight elevator vestibules, 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 acquisition of
adjacent property by Landlord or from the change of any abutting street
line and all parking areas and structures. The term "Property" means the
Building and the Site.
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2.1.1 RELOCATION OF TENANT'S SPACE. (A) In the event that at any time during
the Lease Term Landlord shall enter into a lease with a third party for
premises within the Building consisting of at least 200,000 square feet
of rentable floor area, Tenant shall at Landlord's request relocate from
the Premises then demised to Tenant under this Lease (the "Original
Premises") to other premises (the "Relocated Premises") within the
Building and upon such relocation the Relocated Premises shall become
the premises demised under this Lease and wherever the term "Premises"
is used herein the same thereafter shall mean and refer to the Relocated
Premises. The Relocated Premises shall be in an area of the Building as
designated by Landlord, provided that a minimum of fifty percent (50%)
of the window line of the Relocated Premises shall be on the
south-facing elevation of the Building. Upon any such relocation
contemplated by this subsection (A), Tenant shall enter into an
amendment to this Lease confirming such relocation, but the failure to
enter into such amendment shall not affect in any manner the relocation
of the Premises demised under this Lease from the Original Premises to
the Relocated Premises.
(B) (i) In the event that at any time prior to January 1, 2003 Landlord
shall enter into a lease with a third party for premises within the
Building consisting of at least 250,000 square feet of rentable floor
area, Landlord shall provide Tenant with no less than six (6) months'
prior written notice ("Landlord's Relocation Notice") that Landlord
intends to relocate Tenant from the Original Premises to other Class A
premises (as determined in accordance with prevailing industry standards
in the Boston West Suburban Market) consisting of no less than 7,000 and
no more than 8,000 square feet of rentable floor area and having an
exterior window line (the "New Premises") in any designated building
owned by Landlord or its affiliates in the Town of Lexington or the City
of Waltham,
Massachusetts. Landlord's Relocation Notice shall specify an
effective date for Tenant to be relocated to the New Premises (the
"Effective Date"), which such date shall be no earlier than March 1,
2003. Tenant shall have the option, to be exercised within thirty (30)
days after its receipt of Landlord's Relocation Notice to either (x)
accept the New Premises or (y) terminate this Lease effective at any
time, at Tenant's election, after Tenant's receipt of Landlord's
Relocation Notice (provided, however, that (i) such effective date of
termination (i) shall in no event be later than the Effective Date set
forth in Landlord's Relocation Notice and (ii) shall not be prior to
March 1, 2003 unless Tenant so chooses).
(ii) If Tenant shall accept the New Premises, Tenant shall
relocate from the Original Premises to the New Premises on or before the
Effective Date specified in Landlord's Relocation Notice. Tenant shall
enter into a new lease with the owner of the Building which the New
Premises are located (the "New Lease"), which such lease shall be on all
the terms and conditions set forth in this Lease (with such changes as
are necessary to reflect the fact that the New Premises are located in a
different Building); provided, however that the annual fixed rent for
the New Premises shall be the lesser of (x) the prevailing market rent
for premises in the building in which the New Premises are located
(which such prevailing market rent shall be determined in the manner set
forth in Exhibit F attached hereto) and (y) the Annual Fixed Rent then
payable by Tenant under this Lease (it being understood and agreed that
in the event that the applicable rental rate is determined pursuant to
subsection (y) and the rentable floor area of the New Premises is
greater than that of the Original Premises, Tenant shall only be
required to pay rent for
9
the New Premises based on the rentable floor area of the Original
Premises). Upon the full execution of the New Lease and the commencement
thereof, this Lease shall be terminated and of no further force and
effect.
If Tenant shall elect to terminate this Lease instead of accepting the
New Premises, Landlord shall pay to Tenant on the Effective Date a
termination fee equal to four (4) months of the Annual Fixed Rent at the
rate then payable by Tenant under this Lease (the "Termination
Payment"), which such payment shall be Landlord's sole obligation to
Tenant in connection with the termination of this Lease. Tenant shall
quit and vacate the Premises on or prior to the Effective Date and
surrender the same to Landlord in the condition required by the
applicable provisions of this Lease. Notwithstanding the payment by
Landlord of the Termination Payment, Tenant shall remain liable to
Landlord for all Annual Fixed Rent and Additional Rent accruing through
the Effective Date.
(A) In the event of a relocation pursuant to subsection (A) or (B)
above, Landlord, at its sole cost and expense, shall place the Relocated
Premises or the New Premises, as the case may be, into substantially
equivalent condition to that in which the Original Premises were in
prior to such relocation, and Landlord shall also reimburse Tenant for
Tenant's out-of-pocket moving and relocation (phone, computer, etc.
installation and change-over) expenses in so relocating to the Relocated
Premises or the New Premises (including, in the case of New Premises,
costs of stationary, business cards, promotional materials and similar
business materials, if any, including Tenant's address), upon billing
therefor from Tenant, which billing shall include reasonable evidence
thereof in the form of paid invoices, receipts and the like. Tenant
shall not be required to vacate the Original Premises and to relocate to
the Relocated Premises or the New Premises until the Relocated Premises
or the New Premises shall be substantially complete, subject to punch
list items and items of long-lead time.
2.2 RIGHTS TO USE COMMON FACILITIES. Subject to Landlord's right to change
or alter any of the following in Landlord's discretion as herein
provided, 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 Building from time to
time made by Landlord of which Tenant is given reasonable prior notice
(a) the common lobbies, corridors, stairways, elevators and loading
platform 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. Notwithstanding anything to the contrary herein,
Landlord has no obligation to allow any particular telecommunication
service provider to have access to the Building or to the Premises
except as may be required by applicable law. If Landlord permits such
access, Landlord may condition such access upon the payment to Landlord
by the service provider of fees assessed by Landlord in its sole
discretion.
2.2.1 TENANT'S PARKING. In addition, Tenant shall have the right to use in the
parking area, without charge during the Original Term (except as set
forth in Section 2.6 below), twenty-four (24) hours per day, seven (7)
days per week, the Number of Parking Spaces
10
(referred to in Section 1.1) for the parking of automobiles, in common
with use by other tenants from time to time of the Complex, provided,
however, that Landlord shall not be obligated to furnish stalls or
spaces on the Site 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 and made known to Tenant with
respect to the use of the parking areas on the Site. The parking
privileges granted herein are non-transferable except to a permitted
assignee or subtenant as provided in Section 5.6 through Section 5.6.5.
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, unless
caused by the gross negligence or willful misconduct of Landlord, its
agents, servants or employees, 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'S RESERVATIONS. 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. Landlord shall provide Tenant with
reasonable prior notice (except in event of an emergency) of any such
installation, replacement or relocation affecting the Premises and shall
use reasonable efforts to schedule the making thereof so as to minimize
to the extent practicable, the interference with Tenant's business
operations.
2.4 HABENDUM. 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 3.1 provided, or (b) that date on
which Tenant commences occupancy of any portion of the Premises for the
Permitted Uses (as applicable, the "Commencement Date"), and continuing
for the Lease Term unless sooner terminated as provided in Article VI or
Article VII or unless extended as provided in Section 8.20.
As soon as may be convenient after the date has been determined on which
the Original Term commences as aforesaid, Landlord and Tenant agree to
join with each other in the execution of a written Declaration, in the
form of Exhibit E, in which the date on which the Original Term
commences as aforesaid and the Original Term of this Lease shall be
stated. If Tenant fails to execute such Declaration, the Commencement
Date and Original Term shall be as reasonably determined by Landlord in
accordance with the terms of this Lease.
2.5 FIXED RENT PAYMENTS. Tenant agrees to pay to Landlord, or as directed by
Landlord, at the address specified in this Section 2.5, or at such other
place as Landlord
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shall from time to time designate by not less than thirty (30) days
advance written 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 Annual Fixed Rent (sometimes hereinafter
referred to as "fixed rent") and (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 $.85 per annum for each square foot of Rentable Floor Area
of Tenant's Space for tenant electricity subject to adjustment as
provided in Section 2.8 and (2) on the first day of each and every
calendar month during the Extended Term (if exercised), a sum equal to
(a) one twelfth (1/12th) of the annual fixed rent as determined in
Section 8.20 for the Extended Term plus (b) then applicable monthly
electricity charges (subject to adjustment 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
Limited Partnership at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
and all remittances received by Boston Properties Limited Partnership,
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
of Annual Fixed Rent 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.
Additional Rent 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.
2.6 OPERATING EXPENSES. "Landlord's Operating Expenses" means the customary
and reasonable costs 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, 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, worker's compensation
insurance premiums and
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payroll taxes paid to, for or with respect to all persons to the extent
engaged in the operating, maintaining or cleaning of the Building or
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 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 comparable to management fees for similar buildings in the
Waltham,
Massachusetts area; 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 (a) depreciation for capital
expenditures made by Landlord (i) to reduce Landlord's Operating
Expenses if Landlord shall have reasonably determined that the annual
reduction in Landlord's Operating Expenses shall exceed depreciation
therefor or (ii) except as set forth in Section 4.1.5 below, to comply
with applicable laws, rules, regulations, requirements, statutes,
ordinances, by-laws and court decisions of all public authorities which
are now in force or hereafter become applicable to the Building or the
Site; 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.
Notwithstanding anything to the contrary set forth in this Lease,
Landlord's Operating Expenses shall not include: leasing commissions;
rent concessions to other occupants of the Building or the Site; tenant
improvement costs for other occupants of the Building or the Site; or
capital expenditures except to the extent expressly provided above.
"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 2002 (that is the period beginning January 1, 2002 and
ending December 31, 2002).
"Base Operating Expenses Allocable to the Premises" shall mean the same
proportion of Base 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.
If with respect to any calendar year falling within the Lease Term, or
fraction of a calendar year falling within the Lease Term at the
beginning or end thereof, the Operating Expenses Allocable to the
Premises for a full calendar year exceed Base
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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, 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. (Base Operating Expenses Allocable to the Premises do not include
the $.85 for tenant electricity to be paid by Tenant at the time of
payment of 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 adjustments to electricity costs.)
Not later than one hundred and twenty (120) days after the end of the
first calendar year or fraction thereof ending December 31 and of each
succeeding calendar year during the Lease Term or fraction thereof at
the end of the Lease Term, Landlord shall render Tenant a statement in
reasonable detail and according to usual accounting practices certified
by a representative of Landlord, showing for the preceding calendar year
or fraction thereof, as the case may be, 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, and the amount of operating expenses
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 due from it to
Tenant pursuant to the above provisions of this Section 2.6 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 Lease Term has ended
and Tenant has no further obligation to Landlord).
In addition, Tenant shall make payments monthly on account of the excess
of Operating Expenses Allocable to the Premises over Base Operating
Expenses Allocable to the Premises 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 Tenant's share of such increases in operating
expenses for each calendar year during the Lease Term, but in no event
shall such monthly payments for estimated costs be more than one hundred
five percent (105%) of the actual excess of Operating Expenses Allocable
to the Premises over Base Operating Expenses Allocable to the Premises
for the immediately preceding calendar year.
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 Buildings rather than to any other causes.
In the event that on 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 2002
for purposes of calculating Base Operating Expenses), Landlord's
Operating Expenses for such calendar year shall be
14
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.
Upon no less than five (5) business days prior notice to Landlord,
Tenant, at Tenant's expense, may examine Landlord's books and records
regarding such statement at any reasonable time specified by Landlord
during Landlord's business hours at a place designated by Landlord, but
Landlord need not retain such books or records for more than three (3)
years after the close of the applicable calendar year. 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.
2.7 REAL ESTATE TAXES. 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 $4.00 per
square foot of Rentable Floor Area of Tenant's Space, or for any such
fraction of a Tax Year exceed the corresponding fraction of $4.00 per
square foot of Rentable Floor Area of Tenant's Space, then Tenant shall
pay to Landlord, as Additional Rent, the amount of such excess.
Notwithstanding the foregoing, it is understood and agreed that Tenant
shall not be responsible for any payments on account of Landlord's Tax
Expenses Allocable to the Premises in excess of the $4.00 amount set
forth above until January 1, 2004. 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 Lease 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 for the preceding year or any
prior years. Reasonable 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. 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 real estate taxes already paid by Tenant as Additional
Rent, and the amount of real estate taxes 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 the
foregoing 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 2.7 with respect to the preceding year or fraction thereof,
or Landlord shall credit any amounts due from it to Tenant pursuant to
the provisions of this Section 2.7 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
over-payment as aforesaid if the Lease Term has ended and Tenant has no
further obligation to Landlord).
In addition, payments by Tenant on account of increases in real estate
taxes 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
15
aggregate, a sum equal to Tenant's share of such increases, at least ten
(10) days before the day on which such payments by Landlord would become
delinquent.
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. Landlord shall consider paying real estate taxes
over the longest period of time permitted without the payment of any
penalty or interest, to the extent such payment terms are deemed to be
consistent with Landlord's customary financial management practices.
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:
(i) "Tax Year" means the twelve-month period beginning July 1
each year during the Lease 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 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 or refund receipts with respect to that Tax
Year.
(iv) "Real estate taxes" means all taxes and special
assessments of every kind and nature and user fees and
other like fees 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
Massachusetts General
Laws Chapter 121A, Section 10 and amounts in excess
thereof paid to the City of Waltham pursuant to agreement
between Landlord and the City) 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, excise, gift, franchise, income, gross
receipt, profit, succession, inheritance and transfer
taxes; provided, however, that if at any time during the
Lease Term the present system of ad valorem taxation of
real property shall be changed so that in lieu of the
whole or any part of the ad valorem tax on real
16
property, there shall be assessed on Landlord a capital
levy or other 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 Buildings were
the only property of Landlord.
2.8 TENANT ELECTRICITY. 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 equitable share of
the cost of electricity furnished to tenants in the Building (but
expressly excluding utility charges separately chargeable to other
tenants). Tenant shall pay an initial base amount of $.85 per square
foot of the Rentable Floor Area of Tenant's Space per year, as provided
for in Section 2.5 hereof. The base 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 Tenant's
equitable share of electricity costs for each calendar year during the
Term. If the Landlord shall reasonably determine that the cost of the
electricity furnished to the Tenant at the Premises exceeds the amount
being paid under Sections 2.5 and 2.8, then the Landlord may charge the
Tenant for such excess and the Tenant shall promptly pay the same upon
billing therefor.
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 Lease Term or fraction thereof at the end of the Lease
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 tenants in the Building, net of payments
received for utility charges separately chargeable to other tenants.
Said statement to be rendered to Tenant (x) shall include copies of all
relevant utility bills and (y) 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 delivery of such
statement, Tenant shall pay to Landlord, as Additional Rent, the balance
of the amounts, if any, in excess of the monthly payments made by Tenant
with respect to the preceding year or fraction thereof, or Landlord
shall credit any overpayments made by Tenant with respect to the
preceding year or fraction thereof against (i) monthly installments of
electricity costs 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 Lease Term has ended and Tenant has no
further obligation to Landlord).
17
ARTICLE III
CONDITION OF PREMISES; ALTERATIONS
3.1 SUBSTANTIAL COMPLETION.
(A) Landlord shall perform, at Landlord's sole cost, the work shown
on the plans (the "Plans") listed on Exhibit B annexed hereto
("Landlord's Work"); provided, however, that the Landlord shall have no
responsibility for the installation or connection of Tenant's computer,
telephone, other communication equipment, systems or wiring. To the
extent that Tenant requests any additional items of work beyond those
items described in Exhibit B and Exhibit B-1, Tenant shall be
responsible for all costs associated therewith (such costs being
hereinafter referred to as "Tenant Plan Excess Costs").
(A) Subject to 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 or attributable to Tenant's action or inaction (collectively
"Landlord's Force Majeure") Landlord shall use reasonable speed and
diligence in the performance of Landlord's Work, but Tenant shall have
no claim against Landlord for failure so to complete construction of
Landlord's Work in the Premises, except for the right to terminate this
Lease, without further liability to either party, in accordance with the
provisions hereinafter specified in Section 3.2.
The Premises shall be treated as having been substantially completed and
be deemed ready for Tenant's occupancy on the later of:
(a) The date on which Tenant has been notified in writing that
Landlord's Work, together with common facilities for access and
services to the Premises, has been completed (or would have been
completed except for Tenant Delay) except for items of work and
adjustment of equipment and fixtures which can be completed
after occupancy has been taken without causing substantial
interference with Tenant's use of the Premises (i.e. so-called
"punch list" items) and immaterial 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 ("long lead" items), or
(b) The date when Tenant has been notified in writing that
permission has been obtained from the applicable governmental
authority, to the extent required by law, for occupancy by
Tenant of the Premises for the Permitted Use.
Landlord shall complete as soon as conditions practically permit all
punch list and long-lead items, and Tenant shall cooperate with Landlord
in providing access as may be required to complete such punch list and
long-lead items in a normal manner. Landlord shall permit Tenant access
for installing Tenant's trade fixtures and installing or connecting
Tenant's computer, telephone, other communication equipment, systems or
wiring in portions of the Premises prior to substantial completion when
it can be done
18
without material interference with remaining work or with the
maintenance of harmonious labor relations. In the event of any dispute
as to the date on which Landlord's Work has been completed as described
in subsection 3.1(B)(a) above, the reasonable determination of
Landlord's architect as to such date shall be deemed conclusive and
binding on both Landlord and Tenant.
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 failure to timely pay Tenant Plan Excess Costs
under Section 3.4 below and the work in installing Tenant's trade
fixtures) (collectively a "Tenant Delay") shall delay commencement of
the Original 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, and Landlord's Work shall be deemed
completed as of the date when the same would have been substantially
completed except for Tenant Delay, as determined by Landlord in the
reasonable exercise of its good faith business judgment. Nothing
contained in this paragraph shall limit or qualify or prejudice any
other covenants, agreements, terms, provisions and conditions contained
in this Lease.
3.2 DELAYS.
(A) Notwithstanding anything contained in this Lease to the contrary, if
Landlord shall have failed to substantially complete the Landlord's Work
in the Premises described in the Plans (excluding punch list items and
long lead items) on or before the Scheduled Term Commencement Date set
forth in Section 1.1 above (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 (i) Landlord's Force Majeure or (ii)
any Tenant Delays, without limiting Landlord's other rights on account
thereof), the Annual Fixed Rent and payments on account of Operating
Expenses Allocable to the Premises and Landlord's Tax Expenses Allocable
to the Premises shall be abated by one day for each day beyond the
Scheduled Term Commencement Date (as so extended) that substantial
completion is delayed.
(A) If Landlord shall have failed substantially to complete
Landlord's Work in the Premises described in the Plans on or before the
Outside Completion Date as defined in Section 1.1 hereof (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 as defined in Section 3.1, but no longer than
one hundred eighty (180) days) Tenant shall have the right to terminate
this Lease by giving notice to Landlord of Tenant's desire to do so
before such completion and 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, this Lease shall cease and come to an
end without further liability or obligation on the part of either party
(also specifically terminating Tenant's liability and obligation under
that letter agreement with Landlord dated on or about November 26, 2001,
with respect to indemnity for design work costs); and such right of
termination shall be Tenant's sole and exclusive remedy for Landlord's
failure so to complete Landlord's Work within such time. Each day of
Tenant Delay shall be deemed
19
conclusively to cause an equivalent day of delay by Landlord in
substantially completing Landlord's Work pursuant to Section 3.1, and
thereby automatically extend for each such equivalent day of delay the
date of the Outside Completion Date.
3.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION.
All construction work required or permitted by this Lease shall be done
in a good and workmanlike manner and in compliance with all applicable
laws, ordinances, rules, regulations, statutes, by-laws, court
decisions, and orders and requirements of all public authorities ("Legal
Requirements") and all requirements of insurers of the Building
("Insurance Requirements"). All of Tenant's work shall be coordinated
with any work being performed by or for Landlord and in such manner as
to maintain harmonious labor relations. 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
Section 1.1 or any person hereafter designated in substitution or
addition by notice to the party relying. Except as otherwise provided in
Article IV, any 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 Use, except for items which are then
uncompleted (including punch list items and long lead items) and as to
which Tenant shall have given Landlord notice prior to such date.
3.4 TENANT PLAN EXCESS COSTS. To the extent, if any, that there are Tenant
Plan Excess Costs, Tenant shall pay Landlord, as Additional Rent, fifty
percent (50%) of the Tenant Plan Excess Costs prior to the commencement
of Landlord's Work, and Tenant shall reimburse Landlord, as Additional
Rent, within ten (10) days after the billing therefor by Landlord, from
time to time during the performance of Landlord's Work, on account of
the reminder of the Tenant Plan Excess Costs an amount equal to the
product of (i) the cost of Landlord's Work performed during the period
described in such ▇▇▇▇, multiplied by (ii) a fraction, the numerator of
which is the amount of the remainder of the Tenant Plan Excess Costs and
the denominator of which is the total estimated cost of Landlord's Work,
with any remaining Tenant Plan Excess Costs being due upon the
substantial completion of Landlord's Work.
3.5 ALTERATIONS. 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,
conditioned or delayed. However, Landlord's determination of matters
relating to aesthetic issues relating to alterations, additions or
improvements which are clearly visible outside the Premises shall be in
Landlord's sole discretion. Without limiting such standard Landlord
shall not be deemed unreasonable for withholding approval of any
alterations or additions which (a) in Landlord's opinion might adversely
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) involve or affect the exterior
design, size, height, or other exterior dimensions of the Building or
(c) will require unusual expense to readapt the Premises to normal
office use on Lease termination or expiration or
20
materially 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 or expiration without expense to Landlord, (d) enlarge the
Rentable Floor Area of the Premises, or (e) are inconsistent, in
Landlord's reasonable judgment, with alterations satisfying Landlord's
reasonable standards for new alterations in the Building. 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 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. All
alterations and additions shall be part of the Building unless Landlord
shall specify, at the time approval of Tenant's plans is granted, that
the same shall be removed 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
Buildings or Site or interfere with construction or operation of the
Buildings 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
combined single limit per occurrence on a per location basis (all such
insurance to be written in companies approved by Landlord in its
reasonable discretion 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 Buildings or the Site and immediately to discharge
or bond over any such liens which may so attach. Tenant shall pay, as
Additional Rent, 100% of any real estate taxes on the Complex during the
Lease Term which shall, at any time after commencement of the Lease
Term, result from any alteration, addition or improvement to the
Premises made by Tenant.
21
ARTICLE IV
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 LANDLORD COVENANTS:
4.1.1 SERVICES FURNISHED BY LANDLORD. 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 ADDITIONAL SERVICES AVAILABLE TO TENANT. 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. Tenant agrees to pay to Landlord, as Additional
Rent, the cost of any such additional Building services requested by Tenant and
for the cost of any additions, alterations, improvements or other work performed
by Landlord in the Premises at the request of Tenant within thirty (30) days
after being billed therefor.
4.1.3 ROOF, EXTERIOR WALL, FLOOR SLAB AND COMMON FACILITY REPAIRS. Except for
(a) normal and reasonable wear and use and (b) damage caused by fire and
casualty and by eminent domain, and except as otherwise provided in Article VI
and subject to the escalation provisions of Section 2.6, (i) to make such
repairs to the roof, exterior walls, structural portions, foundations, 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 DIRECTORY AND DOOR SIGNS. To provide and install, at Landlord's expense,
letters or numerals in the Building directory in the main lobby and on the doors
of the Premises to identify Tenant's official name; all such letters and
numerals shall be in the building standard graphics and no others shall be used
or permitted on such signage.
4.1.5 COMPLIANCE WITH LAWS. Landlord at Landlord's expense, shall be
responsible for the common areas of the Building complying on the Commencement
Date and thereafter with applicable Legal Requirements (including, without
limitation, the requirements of the Federal Americans With Disabilities Act (the
"ADA") and the
Massachusetts Architectural Access Board (the "MAAB")), in effect
on the Commencement Date; provided, however, that notwithstanding the foregoing,
Tenant at Tenant's expense, shall be responsible for (i) any additions,
alterations or improvements performed by or at the request of Tenant or any
assignee of subtenant of Tenant complying with applicable Legal Requirements
(including, without limitation, the ADA and the requirements of the MAAB) and
(ii) compliance with applicable Legal Requirements (including, without
limitation, the ADA and the requirements of the MAAB) required because of
"Tenant's Specific Use of the Premises" (as defined below) or any such tenant
improvements. The term "Tenant's Specific Use of the Premises" as used in this
Lease shall not refer to the general office use of the Premises, but shall refer
to the specific products and operations Tenant and any
22
assignee and subtenant of Tenant use in the Premises and the manner in which
Tenant and any assignee and subtenant of Tenant use such products and conduct
such operations.
4.2 INTERRUPTIONS AND DELAYS IN SERVICES AND REPAIRS, ETC. 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.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs
have been completed; provided, however, that in each instance of
stoppage, 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.
In the event that the electrical, heating, ventilating, air
conditioning, or all elevator service to the Premises shall be shut down
for more than thirty (30) consecutive business days, and Tenant is
reasonably unable to use the Premises for the conduct of its business
operations on account of such failure, then Tenant shall be entitled to
an abatement of Annual Fixed Rent and Additional Rent for Landlord's
Operating Expenses and Landlord's Tax Expenses based on the portion of
the Premises which Tenant is thus prevented from using. Notwithstanding
anything herein contained to the contrary, in no event shall any of the
events referred to in this Section give rise to a claim in Tenant's
favor that such failure constitutes actual or constructive, total or
partial, eviction from the Premises.
4.3 LANDLORD'S INSURANCE. Landlord shall carry at all times during the Lease
Term (i) commercial general liability insurance with respect to the
Building in an amount not less than $5,000,000.00 combined single limit
per occurrence, (ii) insurance against loss or damage with respect to
the Building covered by the so-called "all risk" type insurance coverage
in an amount equal to at least the replacement value of the Building.
Landlord may also maintain such other insurance as may from time to time
be required by a mortgagee holding a mortgage lien on the Building.
Further, Landlord may also maintain such insurance against loss of
annual fixed rent and additional rent and such other risks and perils as
Landlord deems proper. Any and all such insurance (i) may be maintained
under a blanket policy affecting other properties of Landlord and/or its
affiliated business
23
organizations, (ii) may be written with deductibles as determined by
Landlord and (iii) shall be subject to escalation reimbursement in
accordance with Section 2.6.
4.4 LANDLORD'S INDEMNITY. Subject to the limitations of Section 8.4 hereof,
to the maximum extent this agreement is effective according to law and
to the extent not resulting from any act, omission, fault, negligence or
misconduct of Tenant or its contractors, agents, licensees, invitees,
servants or employees, Landlord agrees to indemnify and save harmless
Tenant from and against any claim arising from any injury to any person
occurring in the Premises, in the Building or on the Site after the date
that possession of the Premises is first delivered to Tenant and until
the expiration or earlier termination of the Lease Term, to the extent
such injury results from the gross negligence of Landlord or Landlord's
employees provided, however that in no event shall the aforesaid
indemnity render Landlord responsible or liable for any loss or damage
to fixtures or personal property of Tenant; and provided, further, that
the provisions of this Section shall not be applicable (i) to the holder
of any mortgage now or hereafter on the Site or the Building (whether or
not such holder shall be a mortgagee in possession of or shall have
exercised any rights under a conditional, collateral or other assignment
of leases and/or rents respecting, the Site and/or Building) or (ii) any
person acquiring title as a result of, or subsequent to, a foreclosure
of any such mortgage or a deed in lieu of foreclosure, except to the
extent of liability insurance maintained by the foregoing.
ARTICLE V
TENANT'S COVENANTS
Tenant covenants during the Lease Term and such further time as Tenant
occupies any part of the Premises:
5.1 PAYMENTS. 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, as further Additional Rent, all
charges for additional services rendered pursuant to Section 4.1.2.
5.2 REPAIR AND YIELD UP. Except as otherwise provided in Article VI and
Section 4.1.3 to keep the non-structural, interior portions of the
Premises in good order, repair and condition, reasonable wear and tear
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 by casualty or taking only excepted, first removing
all goods and effects of Tenant and, to the extent specified by Landlord
by notice to Tenant given pursuant to Section 3.5 hereof, 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
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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,
to the Site or to the other building caused by Tenant, Tenant's agents,
contractors, employees, sublessees, licensees, concessionaires or
invitees.
5.3 USE. Continuously from the commencement of the Lease Term to use and
occupy the Premises for the Permitted Use only, and not to injure or
deface the Premises, the Building, the Site or any other part of the
Complex nor to permit in the Premises or on the Site any auction sale,
vending machine, or inflammable fluids or chemicals, or nuisance, or the
emission from the Premises of any objectionable noise or odor, and not
to use or devote the Premises or any part thereof for any purpose other
than the Permitted Uses, nor any use thereof which is inconsistent with
the maintenance of the Building as an office building of the first class
in the quality of its maintenance, use and occupancy, or which is
contrary to law or ordinance or liable to invalidate or increase the
premiums for any insurance on the Building or its contents 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 now, or which at the time of
such production or generation is hereafter, 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 known to Tenant in, on or about the Premises, or otherwise
caused by Tenant 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 anything to the contrary contained herein, in
no event shall Tenant have any liability under this Lease with respect
to Hazardous Materials generated or otherwise brought onto the Premises,
Building, Complex or Site by anyone other than Tenant's employees,
invitees, agents, independent contractors, contractors, assignees or
subtenants.
Subject to the limitations of Section 8.4 below, Landlord agrees to
indemnify and save Tenant harmless from liability, loss and/or damage to
persons or property and from any claims, actions proceedings and
expenses in connection therewith resulting from the presence of
Hazardous Materials in the Building or on the Site; provided, however,
that (i) the foregoing indemnity shall not apply to Hazardous Materials
which are in the Building or on the Site because of the action or
inaction of any tenant or occupant in the Complex, including Tenant, or
any employee, agent or contractor thereof and (ii) in no
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event shall the foregoing indemnity render Landlord liable for any loss
or damage to Tenant's Property.
5.4 OBSTRUCTIONS; ITEMS VISIBLE FROM EXTERIOR; RULES AND REGULATIONS. Not to
obstruct in any manner any portion of the Building not hereby leased or
any portion thereof or of the other building 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 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 Buildings to conform to such Rules and
Regulations.
5.5 SAFETY APPLIANCES. 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 Use.
5.6 ASSIGNMENT; SUBLEASE. 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 - 5.6.5 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 foregoing provisions of Section 5.6 above and the
provisions of Section 5.6.2 below, BUT subject to the provisions of
Sections 5.6.3, 5.6.4 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 any
parent or subsidiary corporation of Tenant or to any corporation into
which Tenant may be converted or with which it may merge, 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 is the same or better than
the Tenant as of the date of this Lease. If any parent or subsidiary
corporation of Tenant to which this Lease is assigned or the Premises
sublet (in whole or in part) shall cease to be such a parent or
subsidiary corporation, such cessation shall be considered an assignment
or subletting requiring Landlord's consent.
5.6.1.1 Notwithstanding the provisions of Section 5.6 above, in the event Tenant
desires to assign this Lease or to sublet the whole (but not part) of
the Premises (no partial subletting being permitted other than as
provided in Section 5.6.1), Tenant shall notify
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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 payment of all Annual Fixed Rent and
Additional Rent due (subject to adjustments as provided herein) from
Tenant through the termination date. If Landlord notifies Tenant of
Landlord's election to terminate this Lease pursuant to this Section
5.6.1.1, Tenant shall have the right, by notice to Landlord given within
ten (10) days after receipt by Tenant of Landlord's notice of
termination, to withdraw Tenant's request to assign this Lease or sublet
the Premises, as the case may be, in which event Landlord's election to
terminate shall be rendered null and void. In the event that Landlord
shall not exercise its termination rights as aforesaid, or shall fail to
give any or timely notice pursuant to this Section the provisions of
Sections 5.6.2-5.6.5 shall be applicable. This Section 5.6.1.1 shall not
be applicable to an assignment or sublease pursuant to Section 5.6.1.
5.6.2 Notwithstanding the provisions of Section 5.6 above, BUT subject to the
provisions of this Section 5.6.2 and the provisions of Sections 5.6.3,
5.6.4 and 5.6.5 below, in the event that Landlord shall not have
exercised the termination right as set forth in Section 5.6.1.1, or
shall have failed to give any or timely notice under Section 5.6.1.1,
then for a period of one hundred twenty (120) days (i) after the receipt
of Landlord's notice stating that Landlord does not elect the
termination right, or (ii) after the expiration of the thirty (30) day
period referred to in Section 5.6.1.1, in the event Landlord shall not
give any or timely notice under Section 5.6.1.1 as the case may be,
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 5.6.3 provided that, in each
instance, Tenant first obtains the express prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned
or delayed. Without limiting the foregoing standard, 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 a tenant in the
Building or elsewhere on the Site or is in active
negotiation with Landlord for premises in the Building
or elsewhere on the Site or 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 or
quasi-governmental agency), or
(b) 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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(c) 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
(d) 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
(e) there shall be existing an Event of Default (defined in
Section 7.1), or
(f) any part of the rent payable under the proposed
assignment or sublease shall be based in whole or in
part on the income or profits derived from the Premises
or if any proposed assignment or sublease shall
potentially have any adverse effect on the real estate
investment trust qualification requirements applicable
to Landlord and its affiliates.
5.6.3 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 5.6.2 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 5.6.2 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.
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 5.6.1.1 shall be
applicable.
5.6.4 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)
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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 (provided, however, that for the purpose of calculating the
Assignment/Sublease Profits in the case of a sublease, appropriate
proportions in the applicable Annual Fixed Rent, Additional Rent and
other charges under this Lease shall be made based on the percentage of
the Premises subleased and on the terms of the sublease). 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 actual out-of-pocket 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), as set forth in a statement certified by an
appropriate officer of Tenant and delivered to Landlord within thirty
(30) days of the full execution of the sublease or assignment document,
amortized over the term of the sublease or assignment.
All payments of the Assignment/Sublease Profits due Landlord shall be
made within ten (10) business days of receipt of same by Tenant.
5.6.5 (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 5.6.2 above, that both Tenant and the assignee or
sublessee enter into a separate written instrument directly with
Landlord in a form and containing terms and provisions reasonably
required by Landlord, including, without limitation, the
agreement of the assignee or sublessee Tenant to be bound
directly to Landlord for all the obligations of the Tenant
hereunder, including, without limitation, the obligation (a) to
pay the rent and other amounts provided for under this Lease (but
in the case of a partial subletting pursuant to Section 5.6.1,
such subtenant shall agree on a pro rata basis to be so bound)
and (b) to comply with the provisions of Sections 5.6 through
5.6.5 hereof. Such assignment or subletting shall not relieve the
Tenant named herein of any of the obligations of the Tenant
hereunder and 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 by Tenant for consent to
assignment or subletting.
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(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
5.6.5 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 5.6.2 shall in no way be
construed to relieve Tenant from obtaining the express consent in
writing of Landlord to any further assignment or subletting.
(E) On and after the occurrence, and during the continuance, of an
"Event of Default" (defined in Section 7.1), Landlord shall be
entitled to one hundred percent (100%) of any Assignment/Sublease
Profits.
5.7 INDEMNITY; INSURANCE. (A) 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.
(B) 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 Lease Term, be at least equal to those stated in
Section 1.1 and from time to time after the Original Term shall be for
such higher limits, if any, as are customarily carried in Greater Boston
by similar tenants with respect to similar properties, and worker'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, the certificate for the commercial or
comprehensive general liability insurance bearing the endorsement that
such policy 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
30
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 PERSONAL PROPERTY AT TENANT'S RISK. 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, steam pipes, or other pipes, by
theft or from any other cause, no part of said loss or damage is to be
charged to or 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 or results from the gross negligence or willful
misconduct of Landlord, its agents, employees, representatives or
contractors. Further, Tenant, at Tenant's expense, shall maintain at all
times during the Lease Term insurance against loss or damage covered by
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. Tenant
shall maintain all of its equipment, furniture and furnishings in good
order and repair, reasonable wear and tear excepted.
5.9 RIGHT OF ENTRY. To permit Landlord and its agents to examine the
Premises at reasonable times, upon no less than twenty-four (24) hours'
prior notice to Tenant (except in the event of an emergency) 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 eight (8) months preceding expiration of
the Term and to prospective purchasers and mortgagees at all reasonable
times upon reasonable advance notice.
5.10 FLOOR LOAD; PREVENTION OF VIBRATION AND NOISE. Not to place a load upon
the Premises exceeding an average rate of 70 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; 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 PERSONAL PROPERTY TAXES. To pay promptly when due all taxes which may be
imposed upon Tenant's Property in the Premises to whomever assessed.
31
5.12 COMPLIANCE WITH LAWS. 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 specific use or occupancy of
the Premises by Tenant, other than the specific obligations undertaken
by Landlord in Section 4.1.5 of this Lease; 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 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.
5.13 PAYMENT OF LITIGATION EXPENSES. As Additional Rent, to pay 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
6.0 LANDLORD'S RESTORATION ESTIMATE. In case during the Lease Term the
Building or the Site are damaged by fire or other casualty, Landlord
shall within sixty (60) days after the occurrence thereof notify Tenant
in writing of Landlord's reasonable estimate of the length of time
necessary to repair or restore such fire or casualty damage from the
time that repair work would commence ("Landlord's Restoration
Estimate").
6.1 DAMAGE RESULTING FROM CASUALTY. In case during the Lease Term the
Building or the Site are damaged aged by fire or casualty and if,
according to Landlord's Restoration Estimate, such fire or casualty
damage cannot, in the ordinary course, reasonably be expected to be
repaired within two hundred forty (240) days from the time that repair
work would commence, either party may, at its election, terminate this
Lease by notice given to the other party within thirty (30) days after
the date of Landlord's Restoration Estimate, 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.
In case during the last year of the Lease Term, the Premises are damaged
by fire or 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.
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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 promptly after such damage and the
determination of the net amount of insurance proceeds available shall
use due diligence to restore the Premises and the Building in the event
of damage thereto (excluding Tenant's Property) into proper condition
for use and occupation and a just proportion of the Annual Fixed Rent,
Tenant's share of Operating Costs and Tenant's share of real estate
taxes according to the nature and extent of the injury to the Premises
shall be abated until the Premises shall have been put 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.
Unless such restoration is completed within ten (10) months from the
date of the casualty or taking, 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 fifteen
(15) months from the date of the casualty or taking), Tenant, as its
sole and exclusive remedy, shall have the right to terminate this Lease
at any time after the expiration of such ten (10) month (as extended)
period until the restoration is substantially completed, such
termination to take effect 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.
6.2 UNINSURED CASUALTY. 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
Lease Term by notice to the Tenant given within sixty (60) 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 RIGHTS OF TERMINATION FOR TAKING. 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
33
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
demised premises allows the net condemnation proceeds to be applied to
the restoration of the Building, Landlord agrees that after the
determination of the net amount of condemnation proceeds available to
Landlord, Landlord shall 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 made available to it.
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 AWARD. Except for Tenant's relocation and personal property expenses
(each specifically so designated by the court or authority having
jurisdiction over the matter), Landlord shall have and hereby reserves
to itself any and all rights to receive awards made for damages to the
Premises, the Buildings, 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, and 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 reasonably 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.
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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.
ARTICLE VII
DEFAULT
7.1 TENANT'S DEFAULT. (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 ten (10) 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 assign its interest in this Lease or sublet
any portion of the Premises in violation of the
requirements of Sections 5.6 through 5.6.5 of this
Lease; or
(iv) 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
(v) Tenant's leasehold interest in the Premises shall be
taken on execution or by other process of law directed
against Tenant; or
(vi) 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
35
(vii) A petition shall be filed against Tenant in bankruptcy
or under any other law seeking any reorganization,
arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or
future Federal, State or other statute, law or
regulation and shall remain undismissed or unstayed for
an aggregate of sixty (60) days, 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 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), 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 for a period less than
the remainder of the Lease 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:
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
36
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, as
liquidated final damages and in lieu of all other damages beyond
the date of notice from Landlord to Tenant, at Landlord's
election, Tenant shall pay to Landlord 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 fair market rental value (in advance) of the
Premises for the balance of the Lease Term all discounted to
present value, less any amounts previously collected by Landlord
as damages on account of unpaid rent.
(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 Lease 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 Lease
Term and may grant concessions, abatements or free rent to the
extent that Landlord considers commercially advisable or
necessary to re-let the same and (ii) may make such alterations,
repairs and decorations in the Premises as Landlord in its
reasonable judgment considers commercially 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
37
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 for and obtain in proceedings for bankruptcy
or insolvency by reason of the termination of this Lease, an
amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in
which, the damages are to be proved, whether or not the amount
be greater, equal to, or less than the amount of the loss or
damages referred to above.
(g) In lieu of any other damages or indemnity and in lieu of the
recovery by Landlord of all sums payable under all the foregoing
provisions of this Section 7.1, Landlord may elect to collect
from Tenant, by notice to Tenant, at any time after this Lease
is terminated under any of the provisions contained in this
Article VII and before full recovery under such foregoing
provisions, and Tenant shall thereupon pay, as liquidated
damages, an amount equal to the sum of the Annual Fixed Rent and
all Additional Rent payable for the twelve (12) months ended
next prior to such termination plus the amount of Annual Fixed
Rent and Additional Rent of any kind accrued and unpaid at the
time of such election plus any and all expenses which the
Landlord may have incurred for and with respect of the
collection of any of such rent, less the amount of any amounts
previously recovered by Landlord on account of unpaid rent;
provided, however, that if the number of months left in the
Lease Term at the time of termination is less than twelve (12),
then the first reference to twelve (12) in this subsection (g)
shall be replaced with that number of months.
7.2 LANDLORD'S DEFAULT. 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 promptly perform such obligations, but in
no event later than 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 EXTRA HAZARDOUS USE. 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 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
38
such increase resulting therefrom, which shall be due and payable as
Additional Rent thereunder.
8.2 WAIVER. 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 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 CUMULATIVE REMEDIES. Except as expressly provided in this Lease, 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 QUIET ENJOYMENT. Tenant, so long as Tenant is not in default hereunder
beyond the expiration of all applicable notice and cure periods, shall
lawfully, peaceably and quietly have, hold, occupy and enjoy the
Premises during the Term (exclusive of any period during which Tenant is
holding over after the expiration or termination of this Lease without
the consent of Landlord), without hindrance or ejection by any persons
lawfully claiming under Landlord to have title to the Premises superior
to Tenant, subject, however, to the terms of this Lease; 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, including ground or master
lessees, 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 including any and all proceeds
therefrom, for recovery of any judgment from Landlord; it being
specifically agreed that neither Landlord (original or successor), nor
any
39
beneficiary of any trust of which any person holding Landlord's interest
is trustee, nor any member, manager, partner, director or stockholder,
nor Landlord's managing agent, 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 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, or of any manager, member,
partner, director or stockholder of Landlord or of Landlord's managing
agent 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 or loss of profits or the like. In the event that Landlord shall
be determined to have acted unreasonably in withholding any consent or
approval under this Lease, the sole recourse and remedy of Tenant in
respect thereof shall be to specifically enforce Landlord's obligation
to grant such consent or approval, and in no event shall the Landlord be
responsible for any damages of whatever nature in respect of its failure
to give such consent or approval nor shall the same otherwise affect the
obligations of Tenant under this Lease or act as any termination of this
Lease.
8.5 NOTICE TO MORTGAGEE AND GROUND LESSOR. After receiving at least thirty
(30) days' prior written 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, at the name and address set forth in the notice from that holder
of ground lessor, and the curing of any of Landlord's defaults by such
holder or ground lessor promptly 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 a
mortgage on Tenant's leasehold interest).
8.6 ASSIGNMENT OF RENTS. With reference to any assignment by Landlord of
Landlord's interest in this Lease, or the rents payable hereunder,
conditional in nature or otherwise, which assignment is made to the
holder of a mortgage 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
40
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.
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 hereunder 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 SURRENDER. 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 BROKERAGE. (A) Tenant warrants and represents that Tenant has not dealt
with any broker in connection with the consummation of this Lease other
than the broker, person or firm, 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 other than the 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 in connection with the consummation of this Lease other than
the broker, person or firm, 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 other than the Brokers, if any,
designated in Section 1.1 hereof, Landlord shall defend the claim
against Tenant with counsel of Landlord's selection and 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 Broker for
the Lease Term, if any, designated in Section 1.1 hereof.
8.9 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Lease, or the application thereof to any person or circumstance shall,
to any extent, be invalid or
41
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 PROVISIONS BINDING, ETC. 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 RECORDING. 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 NOTICES. 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 postage prepaid, hand
delivered (receipt acknowledged) or by recognized overnight delivery
service:
If intended for Landlord, addressed to Landlord at the Original 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 given upon no less than thirty (30) days prior written
notice), Attention: General Counsel.
If intended for Tenant, addressed to Tenant at the Original Address set
forth in Section 1.1 of this Lease except that from and after the
Commencement Date the address of Tenant shall be the Premises (or to
such other address or addresses as may from time to time hereafter be
designated by Tenant by like notice given upon no less than thirty (30)
days prior written 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.
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Any notice given by an attorney on behalf of Landlord or by Landlord's
managing agent shall be considered as given by Landlord and shall be
fully effective.
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 WHEN LEASE BECOMES BINDING. 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 SECTION HEADINGS. 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 RIGHTS OF MORTGAGEE. 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 confirmation
of such subordination and recognition, Tenant shall execute and deliver
such instruments of subordination and recognition as such mortgagee may
reasonably request within ten (10) business days after written 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
43
instrument in which such holder subordinates its rights under such
mortgage to this Lease.
If in connection with obtaining financing a bank, insurance company,
pension trust or other institutional lender shall request reasonable
modifications in this Lease as a condition to such financing, Tenant
will not unreasonably withhold, delay or condition its consent thereto,
provided that such modifications do not increase the monetary
obligations of Tenant hereunder or materially adversely affect the
leasehold interest hereby created.
8.16 STATUS REPORTS AND FINANCIAL STATEMENTS. 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, but no more frequently than
every six (6) months, 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 in connection with a
financing, refinancing, sale or other transfer of the Site or any
portion thereof or interests therein, 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. Landlord shall
hold any non-public information provided by Tenant in such statements in
the strictest confidence and shall only disclose the same to those
parties who need to have access to the information in order to evaluate
the transaction at issue, which such persons are also subject to an
obligation of confidentiality, either by contract or by nature of their
professional relationship with Landlord.
8.17 SELF-HELP. If Tenant shall at any time default in the performance of any
obligation under this Lease, Landlord shall have the right, but shall
not be obligated, to enter upon the Premises and to perform such
obligation notwithstanding the fact that no specific 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 two and one-half percentage
points over the then prevailing prime rate in Boston as set by Fleet
National Bank or its successor (but in no event greater than the maximum
rate permitted by applicable law) 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.
44
8.18 HOLDING OVER. Any holding over by Tenant after the expiration of the
Lease Term shall be treated as a tenancy at sufferance and shall be on
the terms and conditions as set forth in this Lease, as far as
applicable except that Tenant shall pay as a use and occupancy charge an
amount equal to the greater of (x) 150% of the Annual Fixed Rent plus
Additional Rent calculated (on a daily basis) at the highest rate
payable under the terms of this Lease, or (y) the fair market rental
value of the Premises, in each case for the period measured from the day
on which Tenant's hold-over commences and terminating on the day on
which Tenant vacates the Premises. In addition, Tenant shall save
Landlord, its agents and employees harmless and will exonerate, defend
and indemnify Landlord, its agents and employees from and against any
and all damages which Landlord may suffer on account of Tenant's
hold-over in the Premises after the expiration or prior termination of
the Lease Term. Nothing in 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. All property which remains in the
Building or the Premises after the expiration or termination of this
Lease shall be conclusively deemed to be abandoned and may either be
retained by Landlord as its property or sold or otherwise disposed of in
such manner as Landlord may see fit. If any part thereof shall be sold,
then Landlord may receive the proceeds of such sale and apply the same,
at its option against the expenses of the sale, the cost of moving and
storage, any arrears of rent or other charges payable hereunder by
Tenant to Landlord and any damages to which Landlord may be entitled
under this Lease and at law and in equity.
8.19 NON-SUBROGATION. Any insurance 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. In addition, this
waiver of rights by Tenant shall apply to, and be for the benefit of,
Landlord's managing agent.
8.20 EXTENSION OPTION. (A) On the conditions (which conditions Landlord may
waive by written notice to Tenant) 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 the Premises (except for an
assignment or subletting permitted without Landlord's consent under
Section 5.6.1 hereof), Tenant shall have the right to extend the Lease
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 periods as hereinbelow set forth)
for one (1) period of five (5) years as hereinafter set forth. Such
option period is sometimes herein referred to as the "Extended Term".
Notwithstanding any implication to the contrary Landlord has no
obligation to make any additional payment to Tenant in respect of any
construction
45
allowance or the like or to perform any work to the Premises as a result
of the exercise by Tenant of any such option.
(B) If Tenant desires to exercise said option to extend the Lease
Term, then Tenant shall give notice (the "Exercise Notice") to Landlord,
not earlier than twelve (12) months nor later than nine (9) months prior
to the expiration of the Original Term of this Lease exercising such
option to extend, which Exercise Notice shall state that Landlord has
ten (10) business days to respond thereto. Within ten (10) business days
after Landlord's receipt of the Exercise Notice, Landlord shall provide
Landlord's quotation to Tenant of a proposed annual rent for the
Extended Term ("Landlord's Rent Quotation"). If at the expiration of
thirty (30) days after the date when Landlord provides such quotation to
Tenant (the "Negotiation Period"), Landlord and Tenant have not reached
agreement on a determination of an annual rental for the Extended Term
and executed a written instrument extending the Term of this Lease
pursuant to such agreement, then Tenant shall have the right, for thirty
(30) days following the expiration of the Negotiation Period, to make a
request to Landlord for a broker determination (the "Broker
Determination") of the Prevailing Market Rent (as defined in Exhibit F)
for the Extended Term, which Broker Determination shall be made in the
manner set forth in Exhibit F. If Tenant timely shall have requested the
Broker Determination, then the Annual Fixed Rent for the Extended Term
shall be the greater of (a) the Prevailing Market Rent as determined by
the Broker Determination or (b) the Annual Fixed Rent and payments on
account of Operating Expenses Allocable to the Premises and Landlord's
Tax Expenses Allocable to the Premises in effect during the last twelve
(12) month period of the Lease Term immediately prior to the Extended
Term. If Tenant does not timely request the Broker Determination, then
Annual Fixed Rent during the Extended Term shall be equal to Landlord's
Rent Quotation.
(C) Upon the giving of the Exercise Notice by Tenant to Landlord
exercising Tenant's option to extend the Lease Term in accordance with
the provisions of subsection (B) above, then this Lease and the Lease
Term hereof shall automatically be deemed extended, for the Extended
Term, 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 Annual Fixed Rent for the
Extended Term as determined in the relevant manner set forth in this
Section 8.20; and in such event all references herein to the Lease Term
or the Term of this Lease shall be construed as referring to the
Original Term, as so extended, unless the context clearly otherwise
requires, and except that there shall be no further option to extend the
Lease Term. Notwithstanding anything contained herein to the contrary,
in no event shall the Lease. Term be extended for more than five (5)
years after the expiration of the Original Term hereof.
8.21 SECURITY DEPOSIT. (A) Concurrently with the execution of this Lease,
Tenant shall pay to Landlord a security deposit in the amount specified
in Section 1.1 above and Landlord shall hold the same, throughout the
Term of this Lease (including the Extended Term, if applicable), unless
sooner returned to Tenant as provided in this Section 8.21, as security
for the performance by Tenant of all obligations on the part of Tenant
to be performed under this Lease. Such deposit shall be in the form of
an irrevocable, unconditional, negotiable letter of credit (the "Letter
of Credit") in a form reasonably
46
acceptable to Landlord and issued by and drawn on a bank reasonably
approved by Landlord and at a minimum having a corporate credit rating
from Standard and Poor's Professional Rating Service of BBB- (or a
comparable rating from ▇▇▇▇▇'▇ Professional Rating Service), and which
Letter of Credit shall permit one or more draws thereunder to be made
accompanied only by certification by Landlord that pursuant to the terms
of this Lease, Landlord is entitled to apply such Letter of Credit and
the proceeds thereof to an Event of Default of Tenant under this Lease.
Such Letter of Credit shall be for a term of two (2) years (or for one
(1) year if the issuer thereof regularly and customarily only issues
letters of credit for a maximum term of one (1) year) and shall in
either case be renewed by Tenant each year thereafter and each renewal
shall be delivered to and received by Landlord not later than thirty
(30) days before the expiration of the then current Letter of Credit
(herein called a "Renewal Presentation Date"). In the event of a failure
to so deliver such renewal Letter of Credit on or before the applicable
Renewal Presentation Date, Landlord shall be entitled to present the
then existing Letter of Credit for payment and to receive the proceeds
thereof, which proceeds shall be held as Tenant's security deposit,
subject to the terms of this Section 8.21. Upon the occurrence of any
Event of Default, Landlord shall have the right from time to time
without prejudice to any other remedy Landlord may have on account
thereof, to draw on all or any portion of such deposit held as a Letter
of Credit and to apply the proceeds of such Letter of Credit or any cash
held as such deposit, or any part thereof, to Landlord's damages arising
from such Event of Default on the part of Tenant under the terms of this
Lease. If Landlord so applies all or any portion of such deposit, Tenant
shall within seven (7) days after notice from Landlord deposit cash with
Landlord in an amount sufficient to restore such deposit to the full
amount stated in this Section 8.21. While Landlord holds any cash
deposit Landlord shall have no obligation to pay interest on the same
and shall have the right to commingle the same with Landlord's other
funds. Neither the holder of a mortgage nor the Landlord in a 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.
(B) (a) Landlord shall exchange the Letter of Credit for a Letter of
Credit delivered by Tenant that reduces the amount secured by Nineteen
Thousand Six Hundred Eight and 00/100 Dollars ($19,608.00) so that the
new Letter of Credit shall be in the amount of Fifty-Eight Thousand
Eight Hundred Twenty-Four and 00/100 Dollars ($58,824.00) on the first
day of the twenty-fifth (25th) month of the Lease Term if (i) Tenant is
not then in default under the terms of this Lease without the benefit of
notice or grace, and (ii) Landlord has not applied such deposit or any
portion thereof to Landlord's damages arising from any default on the
part of Tenant, whether or not Tenant has restored the amount so applied
by Landlord.
(b) Landlord shall exchange the Letter of Credit for a Letter
of Credit delivered by Tenant that reduces the amount secured by an
additional Nineteen Thousand Six Hundred Eight and 00/100 Dollars
($19,608.00) so that the new Letter of Credit shall be in the amount of
Thirty-Nine Thousand Two Hundred Sixteen and 00/100 Dollars ($39,216.00)
on the first day of the thirty-seventh (37th) month of the Lease Term
if (i) Tenant is not then in default under the terms of this Lease
without the benefit of notice or
47
grace, and (ii) Landlord has not applied such deposit, or any portion
thereof, to Landlord's damages arising from any default on the part of
Tenant, whether or not Tenant has restored the amount so applied by
Landlord.
(c) 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 8.21, to Tenant on the expiration or earlier termination of
the term of this Lease (as the same may have been extended) and
surrender possession of the Premises by Tenant to Landlord in the
condition required in the Lease at such time.
8.22 LATE PAYMENT. If Landlord shall not have received any payment or
installment of Annual Fixed Rent or Additional Rent on or before five
(5) days after 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 Fleet National Bank (or its
successor) 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.
8.23 TENANT'S PAYMENTS. Each and every payment and expenditure, other than
Annual Fixed Rent, shall be deemed to be Additional Rent hereunder,
whether or not the provisions requiring payment of such amounts
specifically so state, and shall be payable, unless otherwise provided
in this Lease, within ten (10) business days after written demand by
Landlord, and in the case of the non-payment of any such amount,
Landlord shall have, in addition to all of its other rights and
remedies, all the rights and remedies available to Landlord hereunder or
by law in the case of non-payment of Annual Fixed Rent. Unless expressly
otherwise provided in this Lease, the performance and observance by
Tenant of all the terms, covenants and conditions of this Lease to be
performed and observed by Tenant shall be at Tenant's sole cost and
expense. If Tenant has not objected to any statement of Additional Rent
which is rendered by Landlord to Tenant within ninety (90) days after
Landlord has rendered the same to Tenant, then the same shall be deemed
to be a final account between Landlord and Tenant not subject to any
further dispute. In the event that Tenant shall seek Landlord's consent
or approval under this Lease, then Tenant shall reimburse Landlord, upon
demand, as Additional Rent, for all reasonable costs and expenses,
including legal and architectural costs and expenses, incurred by
Landlord in processing such request, whether or not such consent or
approval shall be given.
8.24 WAIVER OF TRIAL BY JURY. To induce Landlord to enter into this Lease,
Tenant hereby waives any right to trial by jury in any action,
proceeding or counterclaim brought by either Landlord or Tenant on any
matters whatsoever arising out of or any way connected with this Lease,
the relationship of the Landlord and the Tenant, the Tenant's
48
use or occupancy of the Premises and/or any claim of injury or damage,
including but not limited to, any summary process eviction action.
8.25 GOVERNING LAW. 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.
8.26 INDIRECT OR CONSEQUENTIAL DAMAGES. In no event shall Landlord or Tenant
ever be liable to the other party for any indirect or consequential
damages suffered from whatever cause; provided that the foregoing shall
not limit or alter any procedural right or remedy of Landlord under this
Lease.
49
EXECUTED as a sealed instrument in two or more counterparts each of which
shall be deemed to be an original.
LANDLORD:
WITNESS STONY BROOK ASSOCIATES LLC, a
/s/ Delaware limited liability company
--------------------
By: ▇▇▇▇▇ Road Development Associates LLC, a
managing member
By: Boston Properties Limited
Partnership, a managing member
By: Boston Properties, Inc., its
general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
Title: SVP
------------------------
TENANT:
OASIS SEMICONDUCTOR, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: PRESIDENT
------------------------------
HERETO DULY AUTHORIZED
ATTEST:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------------- --------------------------------
Name: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------ ------------------------------
Title: SECRETARY Title: TREASURER
----------------------------- -----------------------------
HERETO DULY AUTHORIZED
(CORPORATE SEAL)
50
EXHIBIT A
EXHIBIT A
Five parcels of land in Waltham and Weston, Middlesex County, Commonwealth of
Massachusetts, of which Parcel I and Parcel II are shown on a plan entitled
"Plan of Land in Waltham,
Massachusetts, Prepared For Boston Properties," by
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ + Associates, Inc., Engineers and Architects, Scale 1" - 80",
dated August 4, 1998, and recorded with Middlesex South Registry of Deeds as
Plan #863 of 1998 in Book 28950, Page 76; being further described as follows:
PARCEL I:
The land in Waltham shown as "Parcel One" on said plan, and being further
described as follows:
Beginning at a stone bound on the northerly sideline of the land formerly
of The Boston and Maine Railroad Central Mass. Div., now of the
Massachusetts Bay Transportation Authority (MBTA) said bound being at the
southeasterly corner of the herein described premises;
thence running by a curve to the right having a radius of 1122.13 feet and
an arc length of 253.63 feet;
thence turning and running N 67 DEG. 04' 17" W by land now or formerly of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ a distance of 97.00 feet to a point;
thence turning and running S 15 DEG. 48' 39" W by land of said ▇▇▇▇▇▇▇▇ a
distance of 15.00 feet;
thence running by said MBTA land by a curve to the right having a radius of
1122.13 feet and an arc length of 367.75 feet to a point;
thence turning and running N 54 DEG. 43' 37" W by said MBTA land 162.84
feet to a point;
thence running by said MBTA land by a curve to the left having a radius of
1183.68 feet and an arc length of 293.42 feet to a point on a stone wall;
thence turning and running by said wall and by land now or formerly of the
▇▇▇▇▇▇▇▇/Waltham Company the following eight courses:
N 16 DEG. 49' 21" E, 62.97 feet;
N 34 DEG. 45' 37" E, 18.58 feet to a drill hole;
N 51 DEG. 21' 13" E, 11.21 feet;
N 62 DEG. 49' 54" E, 28.58 feet;
N 80 DEG. 23' 22" E, 13.70 feet;
N 84 DEG. 13' 51" E, 77.28 feet to a drill hole;
S 64 DEG. 16' 21" E, 43.21 feet to a drill hole;
S 35 DEG. 57' 50" E, 26.95 feet.
Thence turning and running by land now or formerly of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
land of Rob, ▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ Road, and land of Greenwall
Associates, S 69 DEG. 49' 03" E a distance of 877.27 feet to a point;
thence turning and running by land now or formerly of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and
by said MBTA land S 09 DEG. 42' 43" E a distance of 203.18 feet to the
point of beginning.
The above described parcel contains 5.25 acres, more or less, according to said
plan.
Said Parcel I is also shown as three parcels known as "Lot 17A, 121,699 +/-S.F.
(2.79 +/-AC.)," "Lot 17B, 85,950 +/-S.F. (1.97 +/-AC.)," and "▇▇▇▇▇ Road
Extension (Private) (50' Wide)" on a plan entitled "Lot Layout Plan I, ▇▇▇▇▇
Road Extension, Waltham, Massachusetts, Issued for Definitive Subdivision Plan
Approval, Drawing C-4 of 15," and prepared by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Brustlin, Inc.,
last dated revision August 12, 1998, which plan was recorded with Middlesex
South Registry of Deeds as Plan #162 of 1999, in Book 29826, Page 353.
PARCEL II:
The land in Waltham and Weston shown as "Parcel Two" on said plan, and being
further described as follows:
Beginning at a stone bound at the southeasterly corner of the
above-described Parcel One;
thence running S 01 DEG. 22' 22" E a distance of 82.50 feet across land of
the MBTA to a point on the southerly layout line of said MBTA land;
thence running by a curve to the right having a radius of 1204.63 feet and
an arc length of 374.70 feet to the true point of beginning.
thence turning and running S 15 DEG. 48' 39" W a distance of 98.17 feet to
a point;
thence turning and running S 86 DEG. 00' 21" E a distance of 96.94 feet to
a point;
thence turning and running S 24 DEG. 00' 59" W, partly by a wall, 488.49
feet to a drill hole;
thence turning and running by a wall S 33 DEG. 31' 30" W a distance of
91.45 feet to a drill hole;
thence turning and running by a wall N 51 DEG. 00' 53" W a distance of
49.01 feet to a drill hole;
thence turning and running by a wall N 57 DEG. 39' 25" W a distance of
108.53 feet to a drill hole;
thence turning and running by a wall N 53 DEG. 23' 23" W a distance of
46.45 feet to a drill hole;
2
thence turning and running by a wall N 34 DEG. 40' 17" W a distance of
87.60 feet to a drill hole;
thence turning and running by a wall N 68 DEG. 31' 10" W a distance of
143.69 feet to a drill hole;
thence turning and running S 60 DEG. 25' 39" W a distance of 70 feet more
or less to a point in the centerline of Stony Brook;
then turning and running by the centerline of Stony Brook, approximately
590+/- feet to a point on the northerly side of the land formerly of The
Boston & Maine Railroad, Fitchburg Div., now of the Massachusetts Bay
Transportation Authority (MBTA);
thence running by said MBTA land, by a curve to the left having a radius of
1959.37 feet and an arc length of 42 feet, more or less, to a point of
compound curvature;
thence running by said MBTA land, by a curve to the left having a radius of
1923.21 feet and an arc length of 212.96 feet to a point;
thence turning and running by said MBTA land N 53 DEG. 58' 14" W a distance
of 272.68 feet to a point on the Town Line dividing the City of Waltham and
Town of Weston;
thence turning and running by said Town Line N 22 DEG. 22' 15" E a distance
of 52.90 feet to a point;
thence continuing by said Town Line N 22 DEG. 22' 16" E a distance of
147.63 feet to a point on the southerly sideline of land now of the
Massachusetts Bay Transportation Authority (MBTA) land, formerly of the
Boston & Maine Railroad Central Mass. Division;
thence running by said MBTA land by a curve to the right having a radius of
1101.18 feet and an arc length of 898.10 feet to a point;
thence turning and running by said MBTA land S 54 DEG. 43' 37" E a distance
of 162.84 feet to a point;
thence running by said MBTA land by a curve to the left having a radius of
1204.63 feet and an arc length of 395.77 feet to the true point and place
of beginning.
The above described premises contains 17.5+/- acres, according to said plan.
So much of said Parcel II as is located in Waltham is also shown as "Lot 1A,
760,126 +/-S.F. (17.5 +/-AC.)" on a plan entitled "Lot Layout Plan I, ▇▇▇▇▇ Road
Extension, Waltham, Massachusetts, Issued for Definitive Subdivision Plan
Approval, Drawing C-4 of 15," and prepared by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Brustlin, Inc.,
last dated revision August 12, 1998, which plan was recorded with Middlesex
South Registry of Deeds as Plan #162 of 1999, in Book 29826, Page 353.
3
PARCEL III:
A parcel of land in Weston shown as "▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇" on a plan entitled
"Plan of Lands in Waltham, Massachusetts" by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Co. - Civil
Engineers, dated May 1952, and recorded as Plan No. 2231 of 1952 in Book 8010,
Page 143.
Said parcel is also shown on a Survey entitled "ALTA/ACSM Land Title
Survey, Waltham/Weston Corporate Center, ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇," prepared by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Associates, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇., ▇▇▇▇▇, dated January 17, 2001, and bounded and
described as follows:
Beginning at a point on the northerly sideline of land formerly of the
Boston & Maine Railroad, Fitchburg, Div., now of the Massachusetts Bay
Transportation Authority (MBTA), at its intersection with the southerly
sideline of land formerly of the Boston & Maine Railroad Central Mass.
Div., now of the MBTA;
thence running by said MBTA land by a curve to the right having a radius of
1101.18 feet and an arc length of 228.90 feet to a point intersecting said
southerly line of said MBTA land and the approximate town line dividing the
Town of Weston and the City of Waltham;
thence turning and running S 22 DEG. 22' 16" W by Parcel Two a distance of
147.63 feet to a point;
thence turning and running N 67 DEG. 09' 45" W by said MBTA land, in part
by a wall, a distance of 175.59 feet to the point-of beginning.
PARCEL IV:
A parcel of land in Weston being shown as lot "5A, 0.8 acres, ▇▇▇▇▇▇ ▇▇▇▇▇," on
a plan entitled "Plan of Lands in Waltham, Massachusetts" by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ &
Co. - Civil Engineers, dated May 1952, and recorded as Plan No. 2231 of 1952 in
Book 8010, Page 143.
The above described parcel contains 0.8 acres, more or less, according to said
plan.
Said parcel is also shown on a Survey entitled "ALTA/ACSM Land Title
Survey, Waltham/Weston Corporate Center, ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇," prepared by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Associates, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇., ▇▇▇▇▇, dated January 17, 2001, and bounded and
described as follows:
Beginning at the southeasterly corner of the herein described premises;
thence running by land of the MBTA by a curve to the left having a radius
of 1959.37 feet and an arc length of 519 feet, more or less, to a point in
the centerline of the Stony Brook;
thence turning and running by the centerline of the Stony Brook and by
Parcel Two a distance of 590+/- feet, more or less, to a point;
4
thence running by land now or formerly of the Massachusetts Broken Stone
Company S 60 DEG. 25' 39" W a distance of 100+/-feet, more or less, to the
point of beginning.
PARCEL V (EASEMENT PARCEL):
Crossing Easement from Massachusetts Bay Transportation Authority as recited in
Easement Agreement dated February 11, 1999, recorded February 22, 1999, in Book
29826, Page 393, and shown on Easement Plan recorded as Plan #163 of 1999, in
Book 29826, Page 392; also shown as "Crossing Easement A" over land in Waltham
on a plan entitled "Lot Layout Plan I, ▇▇▇▇▇ Road Extension, Waltham,
Massachusetts, Issued for Definitive Subdivision Plan Approval, Drawing C-4 of
15," and prepared by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Brustlin, Inc., last dated revision August
12, 1998, which plan was recorded with Middlesex South Registry of Deeds as Plan
#162 of 1999, in Book 29826, Page 353.
5
EXHIBIT A-1
EXHIBIT A-1
SITE PLAN OF COMPLEX
[GRAPHIC]
EXHIBIT A-2
EXHIBIT __
MEASUREMENT METHOD
The measurement method for the building at Waltham Weston Corporate Center shall
be as follows:
The Total Rentable Area of the Building is calculated as the sum of the Rentable
Area of Each Floor of the Building. The Rentable Area of Each Floor of the
Building is calculated by multiplying the Net Usable Area of the floor by the
Rentable Area Factor. The Rentable Area Factor for the building is calculated on
a full building basis by dividing the Gross Floor Area of the Building by the
Net Usable Floor Area of the Building.
The Gross Floor Area of the Building is the sum of the Gross Floor Areas of Each
Floor of the Building. The Gross Floor Area of Each Floor of the Building is
calculated on a full floor basis by measuring each floor from interior face of
exterior glass including all core elements.
The Net Usable Floor Area of the Building is the sum of the Net Usable Floor
Areas of Each Floor of the Building. The Net Usable Floor Area of Each Floor of
the Building is calculated on a full floor basis by deducting from the Adjusted
Gross Floor Area of Each Floor of the Building those building elements which are
used in common with other tenants (or if the building is a single tenant
building, those building elements which would be used in common if the building
were a multi-tenant building) such as building lobby, cafeteria, fitness center,
restrooms, elevator lobbies, mechanical and machine rooms, janitor closets,
loading docks, egress corridors, etcetera.
Where floors are subdivided and require additional corridors, the total rentable
area of the floor will remain constant and the floor area associated with the
additional corridors on the floor will be prorated among the premises on the
floor.
EXHIBIT B
EXHIBIT B
WALTHAM WESTON CORPORATE CENTER
OASIS SEMICONDUCTOR
PLAN OF LANDLORD'S WORK
Landlord will provide a turn-key buildout of Tenant's Premises substantially in
accordance with the following scope definition and plan dated 12/14/01 attached
hereto. The improvements will be constructed with the building standard
materials described in Exhibit B-1 except as noted below.
2. PARTITIONS
a. Ceiling high partitions will be provided for the following:
1. Four (4) offices - 120 SF
2. Three (3) offices - 130 SF
3. One (1) office - 178 SF
4. One (1) Large Conference Room - 350 SF
5. One (1) Small Conference Room - 160 SF
6. One (1) Small Conference Room - 140 SF
7. One (1) Storage Room - 90 SF
8. One (1) Resource Center - 220 SF
9. One (1) Copy Room - 150 SF
10. One (1) Pantry- 100 SF
11. One (1) Coat Closet - 20 SF
b. Glass sidelights (18") at all office and conference room doors
(11 each)
3. Acoustical tile ceiling WITH 2' X 4' OR 2' X 2' PARABOLIC LIGHTING AND
WITH SPRINKLERS TO MEET CODE REQUIREMENTS FOR LIGHT HAZARD OCCUPANCY
4. Electric
c. One (1) duplex electrical outlet, one (1) double-duplex
electrical outlet and one (1) telephone outlet per typical
office, except all offices and conference rooms 150 SF and
larger to have three (3) electric outlets and two (2) telephone
outlets. Eight (8) duplex outlets per circuit.
d. Power feeds to twenty-six (26) workstations, four (4)
workstations per circuit.
e. Tenant to provide data and telephone wiring to offices and
workstations.
f. Miscellaneous duplex outlets, as reasonably required, in all
auxiliary space with the exception of the HVAC, electric, heat
loads and ventilation requirements in excess of the criteria
specified in Exhibit C Landlord Services.
Oasis Semiconductor - Exhibit B 1
5. HVAC
g. HVAC as provided in the preliminary Base Building Outline
Specifications previously furnished.
h. Separate zone and exhaust fan for the conference rooms.
6. Millwork
i. Base cabinets and wall cabinets in Pantry, 10 LF.
j. Shelf and rod in Coat Closet.
7. Plumbing
One (1) sink with waste and hot and cold water in Pantry. Sink and/or
any plumbing required in Resource Center to be installed at Tenant's
Cost.
8. Floor Finishes
k. Carpet throughout at allowance of $18/SY of installed area
(including vinyl base at partitions).
l. Vinyl composition tile in Storage Room, Resource Center, Pantry
and Copy Room.
9. Structural Reinforcement
No additional structural requirements beyond that provided by Base
Building Specifications are included in tenant improvements.
10. Doors
All doors will be solid core, wood doors, 3' x 8' and to be equipped
with passage sets.
Oasis Semiconductor - Exhibit B 2
EXHIBIT B-1
WALTHAM WESTON CORPORATE CENTER
BUILDING STANDARDS FOR TENANT IMPROVEMENTS
1. FLOORING
Carpet installed in Tenant spaces should meet or exceed 32 ounces per
square foot.
2. CEILING
Ceilings shall be 2'0" x 2'0" reveal edge textured acoustic lay-in tile,
Celotex LeBaron, or equal. Ceiling height will be 9'0" except in core
areas.
3. PARTITIONS
m. Interior ceiling partitions (i.e. partitions within a single
premises) will be 2 1/2" metals studs 24" on center with one
layer of 5/8" gypsum board on each side. Partition will extend
from floor to underside of acoustic tile ceiling.
n. Demising partitions will be 2 1/2%" metal studs with two layers
of 5/8" gypsum board on one side and one layer of 5/8" gypsum
board on the other. Demising partitions will extend from floor
to underside of structure above, subject to requirements of the
building air conditioning system, and the partition will be
filled with 3" compressed fiberglass sound insulation.
o. All partitions will have vinyl base 4" high.
4. DOORS
p. All doors within a single premises will be 3'0" x 8'0" solid
core with stained grade, veneer faces, 1 3/4" thick and shall
receive two coats of clear polyurethane finish. Door frames will
be pressed metal. Hardware will include 2 pair of butts, one
standard duty latch set and one door stop.
q. The main entry to the Tenant's space shall consist of one
entrance door and sidelight. This door will be 3'0" x 8'0",
solid core with stained grade, veneer faces and shall receive
two coats of clear polyurethane finish. Hardware will include
two pair of butts, one lockset, and an exposed door closure.
Each entrance will have a 1'0" glass sidelight.
r. Glass sidelights - frames will be pressed metal, wood, or equal,
with 18" single pane glazing.
5. PAINTING AND WALL COVERING
s. All wall surfaces shall receive two coats of eggshell finish
latex paint. Color selection will be made from building standard
samples with not more than one color per office. Accent colors
may be used throughout the Premises.
t. All door frames within a single premises shall receive two costs
of semigloss enamel to be selected from building standard
samples. All interior door frames shall receive two coats of
clear polyurethane.
6. WINDOWS AND SUN CONTROL
Oasis - Exhibit B-1(a) 1
u. All windows will have horizontal blinds in the building standard
color.
v. Any use of black out shades or partitions at the exterior of the
Premises must be reviewed and approved by Landlord prior to
installation.
7. LIGHTING
Lighting shall be 2' x 2' or 2' x 4', low-brightness three tube
parabolic reflector fixtures.
8. ELECTRICAL OUTLETS
One duplex outlet shall be provided for each 150 square feet of rentable
space.
9. TELEPHONE OUTLETS
One wall location prepared to receive a telephone outlet installation by
Tenant's telephone company will be provided for each 200 square feet of
rentable area, each to consist of plaster ring and cable pull string.
Tenant may substitute floor locations for up to 15% of the number of
allowed wall location, each floor location to consist of core drilling
of the floor slab and firerated outlet box meeting code standards.
10. DRINKING FOUNTAIN
All floors will have a drinking foundation accessible to all tenants on
the floor.
11. FIRE PROTECTION
Fire protection system to meet all applicable local, state and federal
codes and regulations.
12. HEATING AND AIR CONDITIONING
A complete variable air volume (VAV) system shall be installed to serve
all areas of the premises, including the installation of a medium
pressure ring duct. The system shall be compatible with the main base
building system. Space thermostats and separate zones will be provided
for approximately each 50 lineal feet of building perimeter and
approximately each 2,000 square feet of building interior. Any
thermostats located at an exterior wall shall be insulated.
Supply air shall be provided through ceiling mounted diffusers. Return
air will be into a ceiling return air plenum through slots in the light
fixtures or separate ceiling mounted grills as required.
Oasis Semiconductor - Exhibit B 2
EXHIBIT C
EXHIBIT C
WALTHAM WESTON CORPORATE CENTER
WALTHAM, MASSACHUSETTS
LANDLORD SERVICES
I. CLEANING:
Cleaning and janitor services as provided below:
A. OFFICE AREAS:
DAILY: (Monday through Friday, inclusive, holidays excepted).
1. Empty and clean all waste receptacles and ashtrays and
remove waste material from the Premises; wash
receptacles as necessary.
2. Sweep and dust mop all uncarpeted areas using a
dust-treated mop.
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all
horizontal surfaces, including furniture, office
equipment, window ▇▇▇▇▇, door ledges, chair rails, and
convector tops, within normal reach.
5. Wash clean all water fountains and sanitize.
6. Move and dust under all desk equipment and telephones
and replace same (but not computer terminals,
specialized equipment or other materials).
7. Wipe clean all chrome and other bright work.
8. Hand dust grill work within normal reach.
9. Main doors to premises shall be locked and lights shut
off upon completion of cleaning.
WEEKLY:
Dust coat racks and the like.
QUARTERLY:
1. Render high dusting not reached in daily cleaning to
include:
a) dusting all pictures, frames, charts, graphs and
similar wall hangings.
b) dusting of all vertical surfaces, such as walls,
partitions, doors and door frames, etc.
c) dusting all pipes, ducts and moldings.
d) dusting of all vertical blinds.
2. Spray buff all resilient floors.
B. LAVATORIES:
DAILY: (Monday through Friday, inclusive, holidays excepted)
1. Sweep and damp mop.
2. Clean all mirrors, powder shelves, dispensers and
receptacles, bright work, flushometers, piping and
toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins, bowls and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal
receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel
dispensers, sanitary dispensers; materials to be
furnished by Landlord.
MONTHLY:
1. Machine scrub lavatory floors.
2. Wash all partitions and tile walls in lavatories.
3. Dust all lighting fixtures and grills in lavatories.
C. MAIN LOBBIES, ELEVATORS, STAIRWELLS AND COMMON CORRIDORS:
DAILY: (Monday through Friday, inclusive, holidays excepted).
1. Sweep and damp mop all floors, empty and clean waste
receptacles, dispose of waste.
2. Clean elevators, wash or vacuum floors, wipe down walls
and doors.
3. Spot clean any metal work inside lobbies.
4. Spot clean any metal work surrounding building entrance
doors.
5. Sweep all stairwells and dust handrails.
MONTHLY:
1. All resilient tile floors in public areas to be spray
buffed.
D. WINDOW CLEANING:
All exterior windows shall be washed on the inside and outside
surfaces no less than two (2) times per year.
II. HVAC:
A. Heating, ventilating and air conditioning equipment will be
provided with sufficient capacity to accommodate a maximum
population density of one (1) person per one hundred fifty (150)
square feet of rentable floor area served, and a combined
lighting and standard electrical load of 4 ▇▇▇▇▇ per square foot
of rentable floor area. In the event Tenant introduces into the
Premises personnel or equipment which overloads the system's
ability to adequately perform its proper functions, Landlord
shall so notify Tenant in writing. If within fifteen (15) days
Tenant has not modified its use so as not to cause such
overload, Landlord may, if needed, provide supplemental systems
at Tenant's expense.
Operating criteria of the basic system are in accordance with
the Massachusetts Energy Code and shall not be less than the
following:
i) Cooling season indoor conditions of not in excess of ▇▇▇
▇▇▇▇▇▇▇▇▇▇ when outdoor conditions are ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
drybulb and 74E Fahrenheit wetbulb.
ii) Heating season minimum room temperature of ▇▇▇
▇▇▇▇▇▇▇▇▇▇ when outdoor conditions are 1E Fahrenheit
drybulb.
B. Landlord shall provide heating, ventilating and air conditioning
as normal seasonal charges may require during Normal Building
Operating Hours (8:00 a.m. to 6:00 p.m., Monday through Friday,
and 8:00 a.m. to 1:00 p.m. on Saturdays, legal holidays in all
cases excepted).
If Tenant shall require air conditioning (during the air
conditioning season) or heating or ventilating (during any
season) outside Normal Building Operating Hours, Landlord shall
use landlord's best efforts to furnish such services for the
area or areas specified by written request of Tenant delivered
to the Building Superintendent or the Landlord before 3:00 p.m.
of the business day preceding the extra usage. For such
services, Tenant shall pay Landlord, as additional rent, upon
receipt of billing, a sum equal to the cost actually incurred by
Landlord as
reasonably calculated by Landlord's engineers, pro-rated if more
than one tenant is requesting service.
III. ELECTRICAL SERVICES:
A. Landlord shall provide electric power for a combined load of 4.0
▇▇▇▇▇ per square foot of useable area for lighting and for
office machines through standard receptacles for the typical
office space.
B. Landlord, at its option, may require separate metering and
direct billing to Tenant for the electric power required for any
special equipment (such as computers and reproduction equipment)
that requires either 3-phase electric power or any voltage other
than 120, or for any other usage in excess of 3.5 ▇▇▇▇▇ per
square foot.
C. Landlord will furnish and install, at Tenant's expense, all
replacement lighting tubes, lamps and ballasts required by
Tenant. Landlord will clean lighting fixtures on a regularly
scheduled basis at Tenant's expense.
IV. ELEVATORS:
Provide passenger elevator service.
V. WATER:
Provide hot water for lavatory purposes and cold water for drinking,
lavatory and toilet purposes.
VI. BUILDIING DIRECTORY:
Provide a building directory.
VII. CARD ACCESS SYSTEM:
Landlord will provide a card access system at one entry door of the
building. Tenant may, at its sole cost and expense, install a security
system for its premises provided that such installation does not
interfere with Landlord's security system.
VIII. NON-SMOKING BUILDING:
The building shall be a non-smoking building, and Landlord shall use
reasonable efforts to discourage smoking at the front entrance to the
building.
EXHIBIT D
EXHIBIT D
FLOOR PLAN
[GRAPHIC]
EXHIBIT E
EXHIBIT E
DECLARATION AFFIXING THE COMMENCEMENT DATE OF LEASE
THIS AGREEMENT made this______ day of ______, 200_, by and between STONY BROOK
ASSOCIATES LLC (hereinafter "Landlord") and OASIS SEMICONDUCTOR, INC.
(hereinafter "Tenant").
WITNESSETH THAT:
1. This Agreement is made pursuant to Section 2.4 of that certain
Lease dated __________, 2001 between the parties aforenamed as Landlord and
Tenant (the "Lease").
2. It is hereby stipulated that the Lease Term commenced on ______,
(being the "Commencement Date" under the Lease), and shall end and expire on
_______, unless sooner terminated or extended, as provided for in the Lease.
WITNESS the execution hereof under seal by persons hereunto duly
authorized, the date first above written.
LANDLORD:
STONY BROOK ASSOCIATES LLC
By: ▇▇▇▇▇ Road Development Associates LLC, a
managing member
By: Boston Properties Limited Partnership,
a managing member
By: Boston Properties, Inc., its
general partner
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
TENANT:
OASIS SEMICONDUCTOR, INC.
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK ____________________, 200_
Then personally appeared before me the above-named ___________, as
____________ of Stony Brook Associates LLC as aforesaid, who acknowledged the
foregoing instrument to be his free act and deed as such officer and the free
act and deed of said limited liability company.
---------------------------
NOTARY PUBLIC
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF ________________ ____________________, 200_
Then personally appeared before me the above-named _____________, as
___________ of Oasis Semiconductor, Inc. as aforesaid, who acknowledged the
foregoing instrument to be his/her free act and deed as such officer and the
free act and deed of said corporation.
---------------------------
NOTARY PUBLIC
My Commission Expires:
-2-
EXHIBIT F