1
EXHIBIT 10.10
LEASE BETWEEN
ASPECT MEDICAL SYSTEMS, INC.
AND
NATICK EXECUTIVE PARK TRUST NO. 2
FOR
BUILDING 2, NATICK EXECUTIVE PARK
NATICK, MASSACHUSETTS
INDEX
Page No.
REFERENCE DATA.............................................................. 1
1.1 SUBJECTS REFERRED TO:..................................... 1
1.2 EXHIBITS.................................................. 2
ARTICLE II - PREMISES AND TERM.............................................. 3
2.1 PREMISES.................................................. 3
2.2 TERM...................................................... 3
ARTICLE III - CONSTRUCTION.................................................. 4
3.1 INITIAL CONSTRUCTION...................................... 4
3.2 TENANT'S RECOVERY OF COSTS OF TENANT MODIFICATIONS........ 5
3.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION............. 5
3.4 REPRESENTATIVES........................................... 5
ARTICLE IV - RENT........................................................... 6
4.1 RENT...................................................... 6
4.2 OPERATING COST ESCALATION................................. 6
4.3 PAYMENTS................................................. 10
ARTICLE V - LANDLORD'S COVENANTS........................................... 10
5.1 LANDLORD'S COVENANTS DURING THE TERM..................... 10
5.2 INTERRUPTIONS............................................ 11
ARTICLE VI - TENANT'S COVENANTS............................................ 12
6.1 TENANT'S COVENANTS DURING THE TERM....................... 12
ARTICLE VII - CASUALTY AND TAKING.......................................... 18
7.1 CASUALTY AND TAKING...................................... 18
7.2 RESERVATION OF AWARD..................................... 19
ARTICLE VIII - RIGHTS OF MORTGAGEE......................................... 19
8.1 PRIORITY OF LEASE........................................ 19
8.2 LIMITATION ON MORTGAGEE'S LIABILITY...................... 20
2
8.3 NO PREPAYMENT OR MODIFICATION, ETC........................ 20
8.4 NO RELEASE OR TERMINATION................................. 20
8.5 CONTINUING OFFER.......................................... 21
8.6 SUBMITTAL OF FINANCIAL STATEMENT.......................... 21
ARTICLE IX - DEFAULT........................................................ 21
9.1 EVENTS OF DEFAULT......................................... 21
9.2 TENANT'S OBLIGATIONS AFTER TERMINATION.................... 22
ARTICLE X - MISCELLANEOUS................................................... 23
10.1 TITLES.................................................... 23
10.2 NOTICE OF LEASE........................................... 23
10.3 RELOCATION................................................ 23
10.4 NOTICES FROM ONE PARTY TO THE OTHER....................... 23
10.5 BIND AND INURE............................................ 24
10.6 NO SURRENDER.............................................. 24
10.7 NO WAIVER, ETC............................................ 24
10.8 NO ACCORD AND SATISFACTION................................ 24
10.9 CUMULATIVE REMEDIES....................................... 25
10.10 PARTIAL INVALIDITY........................................ 25
10.11 LANDLORD'S RIGHT TO CURE.................................. 25
10.12 ESTOPPEL CERTIFICATE...................................... 26
10.13 WAIVER OF SUBROGATION..................................... 26
10.14 BROKERAGE................................................. 26
ARTICLE XI - SECURITY DEPOSIT............................................... 27
3
DATE OF LEASE EXECUTION: , 1994
REFERENCE DATA
1.1 SUBJECTS REFERRED TO:
Each reference in this Lease to any of the following subjects shall
incorporate the data stated for that subject in this Section 1.1.
LANDLORD: Natick Executive Park Trust No. 2
MANAGING AGENT: The ▇▇▇▇▇▇▇▇▇ Company
LANDLORD'S AND MANAGING
AGENT'S ADDRESS: Burlington ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LANDLORD'S REPRESENTATIVE: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TENANT: Aspect Medical Systems., Inc.
TENANT'S ADDRESS
(FOR NOTICE & BILLING): ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TENANT'S REPRESENTATIVE: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BUILDING: Two Natick Executive Park
RENTABLE FLOOR AREA
OF TENANT'S SPACE: 21,488 SQUARE FEET
TOTAL RENTABLE FLOOR
AREA OF THE BUILDING: 83,300 SQUARE FEET
TENANT'S DESIGN COMPLETION DATE: N/A
SCHEDULED TERM COMMENCEMENT DATE: November 1, 1994
OUTSIDE DELIVERY DATE: N/A
TERM EXPIRATION DATE: October 31, 1997
APPROXIMATE TERM: Three Years
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FIXED RENT: $335,212.80/YEAR MONTHLY FIXED RENT: $27.934.40
ANNUAL ESTIMATED OPERATING COSTS: Actual 1995 Operating Costs
Calculated per Paragraph 4.2
ESTIMATED COST OF ELECTRICAL SERVICE TO TENANT'S SPACE
(included in Fixed Rent): $16,116; $0.75/SF
FIRST FISCAL YEAR FOR TENANT'S PAYING OPERATING COSTS
ESCALATION - YEAR ENDING December 31, 1996
SECURITY DEPOSIT: $ N/A GUARANTOR: N/A
TENANT IMPROVEMENT REIMBURSEMENT TO LANDLORD: N/A
PERMITTED USES: Office, Research & Development, final assembly and testing
of medical instruments, and uses accessory thereto.
PUBLIC LIABILITY INSURANCE: BODILY INJURY AND PROPERTY DAMAGE
EACH OCCURRENCE: $1,000,000
AGGREGATE: $2,000,000
SPECIAL PROVISIONS: 3.1 & 3.2 Tenant Construction
4.1.1 Partial Abatement for Tenant Work
5.1.9 Remedy
Exhibit H - Extension Option
Exhibit I - Expansion - Right of First Offer
1.2 EXHIBITS
The Exhibits listed below in this Section are incorporated in this
Lease by reference and are to be construed as part of this Lease:
EXHIBIT A Plan Showing Tenant's Space
EXHIBIT B Riders (if applicable)
EXHIBIT C Specifications of Leasehold Improvements and Tenant
Layout (if applicable)
EXHIBIT D Landlord's Services
EXHIBIT E Rules and Regulations
EXHIBIT F Guaranty (not applicable)
EXHIBIT G Estoppel Certificate
EXHIBIT H Tenant Extension Option
EXHIBIT I Right of First Offer on Adjacent Second Floor Space
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ARTICLE II
PREMISES AND TERM
2.1 PREMISES
Subject to and with the benefit of the provisions of this Lease and any
ground lease or land disposition agreement relating to the parcel on which the
Building is located (the "Lot"), Landlord hereby leases to Tenant and Tenant
leases from Landlord, Tenant's Space in the Building, excluding exterior faces
of exterior walls, the common facilities area and building service fixtures and
equipment serving exclusively or in common other parts of the Building. Tenant's
Space, with such exclusions, is hereinafter referred to as "the Premises."
Tenant shall have, as appurtenant to the Premises, the right to use in
common with others entitled thereto, subject to reasonable rules of general
applicability to tenants of the Building from time to time made by Landlord of
which Tenant is given notice: (a) the common facilities included in the Building
or on the Lot, including the parking facility, if any, to the extent from time
to time designated by Landlord; (b) the building service fixtures and equipment
serving the Premises; and (c) Tenant shall have the right to use 75 parking
spaces on an unreserved basis, and (d) the non-exclusive right to use showers
and changing rooms on the first and second floors of the Building.
Landlord reserves the right from time to time, without unreasonable
interference with Tenant's use, with reasonable prior notice to Tenant, which
may be by phone, except in an emergency, in which event no notice shall be
required: (a) to install, repair, replace, use, maintain and relocate for
service to the Premises and to other parts of the Building or either, building
service fixtures and equipment wherever located in the Building, and (b) to
alter or relocate any other common facility provided that substitutions are
substantially equivalent or better.
2.1.1 EXPANSION OPTION
See Exhibit I.
2.2 TERM
To have and to hold for a period (the "Term") commencing when the
Premises are deemed ready for occupancy as provided in Section 3.2, or, if no
work is to be performed by Landlord pursuant to Article III, on the Scheduled
Term Commencement Date (whichever of said dates is appropriate being hereafter
referred to as the "Commencement Date") and continuing until the Expiration
Date, unless sooner terminated as provided in Section 3.2 or 7.1 or in Article
IX.
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2.2.1 EXTENSION OPTION
See Exhibit H.
ARTICLE III
CONSTRUCTION
3.1 INITIAL CONSTRUCTION
Attached hereto are plans showing proposed modifications to Premises.
Within 20 days of execution of the Lease, Landlord will prepare construction
drawings and specifications for such modifications containing such details as
dimensions, partition plans, dimensioned electrical and telephone outlet plans,
modified reflected ceiling plans, room finish schedule, including wall, carpet,
floor tile, and VCT colors, and other necessary construction details and
specifications for the completion of such work, all in a manner reasonably
acceptable to Tenant. Space planning, construction drawings, and specifications
shall be provided by Landlord to Tenant a no cost to Tenant.
All construction of modifications to Tenant's Premises will be
accomplished by Tenant's contractor, which contractor shall furnish to Landlord
evidence of insurance as follows: General Liability and Property Damage -
$2,000,000 Aggregate, $2,000,000 per Occurrence; Workmens Compensation, and an
Owners and Contractors Protective Liability Policy in the amount of $1,000,000
naming the owner and The ▇▇▇▇▇▇▇▇▇ Company as insureds. In addition, in Tenant's
construction contract, Tenant shall insure that the contract holds Landlord and
The ▇▇▇▇▇▇▇▇▇ Company harmless, and that Landlord and The ▇▇▇▇▇▇▇▇▇ Company are
additional named insureds on all of Tenant's insurance policies. It shall be
Tenant's contractor's responsibility to obtain the building permit for said
modifications to Premises. It shall be Tenant's responsibility to insure that
all Tenant's general contractors subcontractors and materialmen are paid in
full, and if a lien is placed upon the Building by any such contractor,
subcontractor, materialmen, or other, to promptly remove such lien or provide a
bond reasonably satisfactory to Landlord and Landlord's mortgagee to insure that
such lien will be paid in full while contesting such lien.
Landlord shall permit Tenant and Tenant's contractor access for
construction of modifications to Tenant's premises promptly after execution
hereof.
All changes and additions shall be part of the Building, except such
items as by writing at the time of approval the parties agree either shall be
removed by Tenant on termination of this Lease, or shall be removed or left at
Tenant's election.
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3.2 TENANT'S RECOVERY OF COSTS OF TENANT MODIFICATIONS
Landlord has agreed as set forth in Paragraph 4.1.1 to ▇▇▇▇▇ a portion
of Tenant's Fixed Rent in order to allow Tenant to recover its expenditures for
modifications to the Premises up to a total of no more than $100,000.00.
Therefore, prior to commencing construction of the work on the Premises, the
costs of such proposed work shall be submitted to Landlord for its reasonable
approval, Landlord reserves this approval right in order to insure that the unit
prices of such costs are within market standards. Upon completion of such Tenant
construction work, Tenant will supply Landlord with paid invoices and mechanics
lien waivers from all contractors, subcontractors and materialmen indicating the
total cost paid for such work as well as evidence that it has been paid in full.
Upon receipt of such paid invoices and lien waivers, Landlord shall, commencing
with the next full months rent, partially ▇▇▇▇▇ Tenant's Fixed Rent at the rate
of $21,488.00 per month until such time as such credited Fixed Rental abatement
equals the amount of said approved and documented Tenant expenditures for
modifications to its Premises, said amount not to exceed $100,000.00. During
such partial abatement period, Tenant shall pay a partially abated Fixed Rent
payment of $6,446.40/month.
3.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION
All construction work required or permitted by this Lease, whether by
Landlord or by Tenant, shall be done in a good and workmanlike manner and in
compliance with all applicable laws and all lawful ordinances, regulations and
orders of governmental authority and insurers of the Building. Either party may
inspect the work of the other at reasonable times and shall promptly give notice
of observed defects, which shall be promptly corrected.
3.4 REPRESENTATIVES
Each party authorizes the other to rely in connection with their
respective rights and obligations under this Article III upon approval and other
actions on the party's behalf by Landlord's Representative in the case of
Landlord or Tenant's Representative in the case of Tenant or by any person
designated in substitution or addition by notice to the party relying.
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ARTICLE IV
RENT
4.1 RENT
Except as set forth in Paragraph 4.1.1 hereof, or as otherwise
specifically set forth herein, Tenant agrees to pay, without any offset or
reduction whatever, fixed rent equal to 1/12th of the Fixed Rent in equal
installments in advance on the first day of each calendar month included in the
Term; and for any portion of a calendar month at the beginning or end of the
Term, at the rate payable for such portion in advance.
4.1.1 PARTIAL RENT ABATEMENT
Provided that this Lease is not in default after the giving of
any required notice and the expiration of any applicable grace period,
commencing the month following receipt by Landlord of Tenant's paid invoices and
lien waivers for Tenant's modification work to the Premises, Landlord shall
commence partial abatement of Tenant's fixed rent at a rate of $21,488.00 per
month until such time as the amount determined in accordance with Paragraph 3.2
hereof, not to exceed $100,000.00, shall have been credited against Tenant's
Fixed Rent in the form of such abated rent in full amount of such agreed, paid,
and documented costs.
4.2 OPERATING COST ESCALATION
With respect to the First Fiscal Year for Tenant's Paying Operating
Cost Escalation, or fraction thereof, and any Fiscal Year or fraction
thereafter, Tenant shall pay to Landlord, as additional rent, Operating Cost
Escalation (as defined below), if any, on or before the thirtieth day following
receipt by Tenant of Landlord's Statement (as defined below). As soon as
practicable after the end of each Fiscal Year ending during the Term and after
Lease termination, and in either case, no later than 180 days thereafter,
Landlord shall render a statement ("Landlord's Statement") in reasonable detail
and according to usual accounting practices certified by Landlord and showing
for the preceding Fiscal Year or fraction thereof, as the case may be,
Landlord's Operating Costs. Upon request, Landlord will provide access to
Tenant, at reasonable times, to Landlord's books and records relating to the
preparation of Landlord's statement, and Tenant may inspect and copy such
records as are necessary to verify the accuracy of the Landlord's annual
statement. In the event of a dispute, Tenant shall have the right to conduct or
have conducted an audit according to generally accepted accounting principles
consistently applied, with which Landlord shall cooperate in good faith. In the
event of an error of five percent or more, Landlord shall bear all costs of such
inspection and audit.
For the purpose of this Paragraph 4.2, Landlord's Operating Costs shall
exclude the interest and amortization on mortgages for the Building and Lot or
leasehold
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interests therein and the cost of special services rendered to tenants
(including Tenant) for which a special charge is made, leasing commissions or
tenant inducements associated with leasing activities, costs or improvements to
any tenant's leased premises or otherwise exclusively for the benefit of an
individual tenant; late charges or other payments on loans, ground rent, or
payments on equity obligations; costs of repairing, replacing or otherwise
correcting defects in the design or construction of the Building or
improvements, or design or construction defects in any leasehold improvements in
rentable areas of the Building; leasing commissions, attorney's fees, costs and
disbursements and other expenses, any of which are incurred in connection with
negotiation or disputes with tenant's or prospective tenant's; except as
specifically set forth below, depreciation and amortization of the Building or
equipment; expenses in connection with services of a type which Tenant does not
receive under this Lease, but which are provided to another tenant; fines,
penalties or indemnification obligations incurred due to violations by Landlord
or parties for whom Landlord is responsible of any governmental rule or
authority, or any agreement made in connection therewith with the governmental
entity, and any costs of remedying such violations or defending the prosecution
thereof; all amounts paid to principals, subsidiaries, affiliates or other
parties related to Landlord for services for the Building and Lot in excess of
the amount payable for comparable services provided by a party who is not a
principal, subsidiary, affiliate or otherwise related party; costs and expenses
to the extent related to the ownership (as distinguished from the operation or
maintenance) of the Building and the Lot; any particular items and services for
which Tenant otherwise reimburses Landlord by direct payment over and above or
included within Fixed Rent or Operating Costs Escalation; advertising,
marketing, promotional and like expenditures; costs of refinancing the Building
and/or Lot; interest or penalties resulting from delinquent payments by
Landlord, repairs or other work occasioned by fire or other casualty covered by
insurance or to the extent recovered from condemnation proceeds; costs incurred
by Landlord which are considered capital improvements, replacements or expenses
under generally accepted accounting principals, including contributions to
replacement or contingency reserves created by Landlord except as specifically
set forth below; any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord; costs for the purchase of
sculpture, paintings or other objects of art and royalties payable in connection
therewith; and the cost of any curative action required, or any repair,
replacement or alteration made, by Landlord or on behalf of Landlord to remedy a
condition or damage caused by or resulting from the negligence or willful
misconduct of Landlord or parties for whom Landlord is responsible and the costs
of complying with insurance requirements to the extent caused by a condition
existing as of the Term Commencement Date;
For this purpose of this Paragraph 4.2, Landlord's Operating Costs
shall include, without limitation: real estate taxes on the Building and Lot;
installments and interest on assessments for public betterments or public
improvements (other than those if any, relating to a traffic signal and related
accessory improvements and turnaround on Route 9 adjacent to the Lot); expenses
of any proceedings for abatement of taxes and
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assessments with respect to any Fiscal Year or fraction of a Fiscal Year to the
extent such Fiscal Year is included in the Term and provided an abatement is
awarded and credited against Operating Costs for such Fiscal Year; premiums for
insurance; compensation and all fringe benefits, workmen's compensation,
insurance premiums and payroll taxes paid by Landlord to, for or with respect to
all persons engaged in the operating, maintaining, or cleaning of the Building
and Lot, but only to the extent such persons are involved directly in the
operation, maintenance and cleaning of the Building and Lot, or in the
supervision of such direct personnel, such supervisory personnel not to exceed
two full-time office personnel and supporting secretary; steam, water, sewer,
electric, gas, telephone, and other utility charges not billed directly to
tenants by Landlord or the utility, but not including the cost to Landlord of
electricity furnished for lighting, electrical facilities, equipment, machinery,
fixtures and appliances used by Tenant in Tenant's Space (other than Building
heating, ventilating and air conditioning equipment) as set forth in Paragraph
VII of Exhibit D; costs of building and cleaning supplies and equipment
(including rental); cost of maintenance, cleaning and repairs; cost of snow
plowing or removal, or both, and care of landscaping; payments to independent
contractors under service contracts for cleaning, operating, managing,
maintaining and repairing the Building and Lot (which payments may be to
affiliates of Landlord provided the same are at reasonable rates consistent with
the type of occupancy and the services rendered); imputed cost equal to the loss
of rent by Landlord for making available to the managing agent space for a
Building office on the ground floor or above not to exceed 800 square feet; if
the building is located in an office park, the Building's pro rata share (as
reasonably determined by Landlord) of the cost of operating, maintaining and
repairing the common areas and facilities within such park (such as, but not
limited to, snow plowing, landscaping, common area and street lighting, security
and management); and all other reasonable and necessary expenses paid in
connection with the operation, cleaning, maintenance, and repair of the Building
and Lot, or either, and properly chargeable against income, it being agreed that
if Landlord installs a new or replacement capital item for the purpose of
reducing Landlord's Operating Costs, the costs thereof as reasonably amortized
by Landlord over the item's useful life, with market rate interest on the
unamortized amount, shall be included in Landlord's Operating Costs, provided
however, that such amount, if any, shall not exceed the amount of costs
reasonably determined by Landlord to have been saved in such year. If the
building is not fully occupied, Landlord's Statement shall also show the average
number of square feet of the Building which were occupied for the preceding
Fiscal Year or fraction thereof.
If the management fee is reduced by reason of a tenant's default in the
payment of fixed or additional rent, Landlord shall reduce the Annual Estimated
Operating Costs by the amount of such reduction in the management fee. In case
of services which are not rendered to all areas on a comparable basis, the
proportion allocable to the Premises shall be the same proportion which the
Rentable Floor Area of Tenant's Space bears to the total rentable floor area to
which such service is so rendered (such latter area to be determined in the same
manner as the Total Rentable Floor Area of the Building).
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"Operating Cost Escalation" shall be equal to the difference, if any,
between:
(a) the product of Landlord's Operating Costs per rentable square
foot as indicated in Landlord's Statement times the Rentable
Floor Area of Tenant's Space; and
(b) the product of the Annual Estimated Operating Costs per
rentable square foot times the Rentable Floor Area of Tenant's
Space.
If, with respect to any Fiscal Year or fraction thereof during the
Term, Tenant is obligated to pay Operating Cost Escalation, then Tenant shall
pay, as additional rent, on the first day of each month of each ensuing Fiscal
Year thereafter which is at least twenty (20) days after notice from Landlord to
Tenant, accompanied by Landlord's statement, until Landlord's Statement for an
ensuing Fiscal Year reflects that Tenant is not obligated to pay Operating Cost
Escalation, Estimated Monthly Escalation Payments equal to 1/12th of the
annualized Operating Cost Escalation for the immediately preceding Fiscal Year,
Estimated Monthly Escalation Payments for each ensuing Fiscal Year shall be made
retroactively from the first day of such Fiscal Year and on account of the
payment to be made pursuant to the first sentence of this Section 4.2 for such
Fiscal Year, with an appropriate additional payment or credit to be made at the
time such payment is due.
The term "real estate taxes" as used above shall mean all taxes of
every kind and nature assessed by any governmental authority on the Lot, the
Building and improvements, or both, which the Landlord shall become obligated to
pay because of or in connection with the ownership, leasing and operation of the
Lot, the Building and improvements, or both, subject to the following: There
shall be excluded for such taxes all income taxes, excess profits taxes, excise
taxes, franchise taxes, estate, succession, inheritance and transfer taxes,
provided, however, that if at any time during the Term the present system of ad
valorem taxation of real property shall be changed so that in lieu of the whole
or any part of the ad valorem tax on real property, there shall be assessed on
Landlord a capital levy or other tax on the gross rents received with respect to
the Lot, Building and improvements, or both, a federal, state, county,
municipal, or other local income, franchise, excise or similar tax, assessment,
levy or charge (distinct from any now in effect) 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."
Upon not less than thirty (30) days prior written notice to Tenant,
Landlord shall have the right from time to time to change the periods of
accounting under this Section 4.2 to any annual period other than the Fiscal
Year and upon any such change all items referred to in this Section shall be
appropriately apportioned. In all Landlord's Statements, rendered under this
Section, amounts for periods partially within and partially without the
accounting periods shall be appropriately apportioned, and any
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items which are not determinable at the time of a Landlord's Statement shall be
included therein on the basis of Landlord's reasonable estimate, and with
respect thereto Landlord shall render promptly after determination a
supplemental Landlord's Statement, and appropriate adjustment shall be made
according thereto. All Landlord's Statements shall be prepared on an accrual
basis of accounting.
Notwithstanding any other provision of this Section 4.2, if the Term
expires or is terminated as of a date other than the last day of a Fiscal Year
at the end of the Term, Tenant's last payment to Landlord under this Section 4.2
shall be made on the basis of Landlord's best reasonable estimate of the items
otherwise includable in Landlord's Statement and shall be made on or before the
later of (a) 10 days after Landlord delivers such estimate to Tenant, or (b) the
last day of the Term, with an appropriate payment or refund to be made upon
submission of Landlord's Statement, which notwithstanding termination of the
Lease, Landlord shall promptly deliver to Tenant after the end of the Fiscal
Year.
4.3 PAYMENTS
All payments of fixed and additional rent shall be made to Managing
Agent, or to such other person as Landlord may from time to time designate such
other person to be designated by written notice to Tenant. If any installment of
rent, fixed or additional, or on account of leasehold improvements is paid more
than 15 days after the due date thereof, at Landlord's election, it shall bear
interest at the rate of the prime rate of a major Boston, Massachusetts bank
selected by Landlord, plus 3% per annum from such due date, which interest shall
be immediately due and payable as further additional rent.
ARTICLE V
LANDLORD' S COVENANTS
5.1 LANDLORD'S COVENANTS DURING THE TERM
Landlord covenants during the Term:
5.1.1 Building Services - To furnish in a first class manner,
through Landlord's employees or independent contractors, the
services listed in Exhibit D;
5.1.2 Additional Building Services - To furnish, through Landlord's
employees or independent contractors, reasonable additional
Building operation services in a first class manner, upon
reasonable advance request of Tenant at equitable rates from
time to time established by Landlord to be paid by Tenant;
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5.1.3 Repairs - Except as otherwise provided in Article VII, to make
such repairs to the roof, exterior walls, floor slabs and
common facilities of the Building as may be necessary to keep
them in serviceable condition and in a condition consistent
with a first class office building;
5.1.4 Quiet Enjoyment - That Landlord has the right to make this
Lease and that Tenant, on paying the rent and performing its
obligations hereunder, shall peacefully and quietly have, hold
and enjoy the Premises throughout the Term without any manner
of hindrance or molestation from Landlord or anyone claiming
under Landlord, subject, however, to all the terms and
provisions hereof;
5.1.5 Tenant Sign - To list Tenant's name and location in tenant
directory in the Building lobby;
5.1.6 Exterior - To maintain parking lot, landscaping and other
exterior areas in a first class manner and keep paved areas
reasonably free of snow and ice;
5.1.7 Access - To provide twenty-four hour, seven days a week,
fifty-two weeks a year access via note pad or key punch access
system;
5.1.8 ADA - To warrant, to the best of Landlord's knowledge, that
the Building is in compliance with handicapped access codes,
including ADA and that to the best of Landlord's knowledge
neither Building nor Lot contains materials hazardous to
Tenant's occupancy or employees, including without limitation,
asbestos and PCB and hazardous substances.
5.2 INTERRUPTIONS
Except as provided herein, Landlord shall not be liable to Tenant for
any compensation or reduction of rent by reason of inconvenience or annoyance or
for loss of business arising from power losses or shortages or from the
necessity of Landlord's entering the Premises for any of the purposes in this
Lease authorized, or for repairing the Premises or any portion of the Building
or Lot. In case Landlord is prevented or delayed from making any repairs,
alterations or improvements, or furnishing any service or performing any other
covenant or duty to be performed on Landlord's part, by reason of any cause
reasonably beyond Landlord's control, Landlord shall not be liable to Tenant
therefor, nor, except as expressly otherwise provided herein and in Article VII,
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 shall use reasonable diligence to make or cause to be made
such repairs as may be required to machinery or equipment within the Building or
on the Lot to
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provide restoration of services and when a cessation or interruption of service
has occurred due to circumstances or conditions beyond the boundaries of the Lot
or beyond Landlord's direct control, to cause the same to be restored to the
extent such restoration is within Landlord's control, and otherwise, by diligent
application or request to the provider thereof. Landlord also agrees to use
reasonable efforts to avoid unnecessary inconvenience to Tenant by reason
thereof and agrees, where reasonable, not to perform such work during normal
business hours. In the event Landlord fails to provide or cause to be provided
any one or more of the Building Services, and such failure causes the premises
or a portion thereof, to be rendered untenantable for the purpose of conducting
Tenant's business operations, and such conditions shall continue, in the case of
circumstances or conditions within Landlord's direct control, for any four (4)
consecutive business days or such condition shall occur in any seven (7)
business days during any thirty (30) day period, or in the case of circumstances
or conditions beyond or outside of Landlord's direct control for seven (7)
consecutive business days or such condition shall occur in any ten (10) business
days during any thirty (30) day period, Tenant shall have the right to ▇▇▇▇▇ the
portion of Fixed Rent which corresponds to the portion of the Premises rendered
untenantable. Notwithstanding the foregoing, any such abatement of Fixed Rent
shall be limited to twenty percent (20%) of the Monthly Fixed Rent in any month,
such monthly twenty percent (20%) of Fixed Rent abatement to continue until
Tenant has been fully reimbursed by such partial abatement for its abatement due
for each day that the Premises was rendered fully or partially untenantable
beyond the applicable period of four (4), seven (7) or ten (10) days until the
full amount of such abatement due Tenant has been recovered by Tenant through
such monthly partial abatement or by other payment to Tenant by Landlord.
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. Except in case of emergency repairs, Landlord will give Tenant
reasonable advance notice of any contemplated stoppage and will use reasonable
efforts to avoid unnecessary inconvenience to Tenant by reason thereof.
ARTICLE VI
TENANT'S COVENANTS
6.1 TENANT'S COVENANTS DURING THE TERM
Tenant covenants during the Term and such further time as Tenant
occupies any part of the Premises:
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6.1.1 Tenant's Payments - To pay when due (a) all Fixed Rent and
additional rent, (b) all taxes which may be imposed on
Tenant's personal property in the Premises (including, without
limitation, Tenant's fixtures and equipment) regardless to
whomever assessed, (c) all charges by public utility for
telephone and other utility services (including service
inspections therefor) rendered to the Premises not otherwise
required hereunder to be furnished by Landlord without charge
and not consumed in connection with any services required to
be furnished by Landlord without charge, and (d) as additional
rent, all charges of Landlord for services rendered pursuant
to Section 5.1.2 hereof;
6.1.2 Repairs and Yielding Up - Except as otherwise provided in
Article VII and Section 5.1.3, to keep the Premises in good
order, repair and condition, reasonable wear only excepted,
and at the expiration or termination of this Lease peaceably
to yield up the Premises and all changes and additions therein
in such order, repair and condition, first removing all goods
and effects of Tenant and any items, the removal of which is
required by agreement or specified therein to be removed at
Tenant's election and which Tenant elects to remove, and
repairing all damage caused by such removal and restoring the
Premises and leaving them clean and neat; any property not so
removed and required by the terms hereof to be removed, shall
be deemed abandoned and may be removed and disposed of by
Landlord, in such manner as Landlord shall determine, and
Tenant shall pay Landlord the entire cost and expense incurred
by it by effecting such removal and disposition and in making
any incidental repairs and replacements to the Premises for
use and occupancy during the period after the expiration of
the term; it being agreed that the acceptance of reasonable
use and wear shall not apply so as to permit Tenant to keep
the Premises in anything less than suitable, tenant-like and
usable condition, considering the nature of the Premises and
the use reasonably made thereof, or in less than good and
tenant-like repair;
6.1.3 Occupancy and Use - To use and occupy the Premises only for
the Permitted Uses; and not to injure or deface the Premises,
Building or Lot; and not to permit in the Premises any auction
sale, nuisance, or the emission from the Premises of any
objectionable noise or odor; nor any use thereof which is
improper, offensive, contrary to law or ordinances, 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;
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6.1.4 Rules and Regulations - To comply with the Rules and
Regulations set forth in Exhibit E and all other reasonable
Rules and Regulations hereafter made by Landlord, of which
Tenant has been given at least thirty (30) days prior written
notice, for the care and use of the Building and Lot and their
facilities and approaches, it being understood that Landlord
shall not be liable to Tenant for the failure of other tenants
of the Building to conform to such Rules and Regulations,
provided that Landlord shall uniformly enforce such Rules and
Regulations;
6.1.5 Safety Appliances - To keep the Premises equipped with all
safety appliances required by law or ordinance or any other
regulation of any public authority because of any use made by
Tenant and to procure all licenses and permits so required
because of such use and, if requested by Landlord, to do any
work so required because of such use, it being understood that
the foregoing provisions shall not be construed to broaden in
any way Tenant's Permitted Uses;
6.1.6 Assignment and Subletting - Not without prior written consent
of Landlord, which shall not be unreasonably withheld or
delayed, to assign this Lease, to make any sublease, or to
permit occupancy of the Premises or any part thereof by anyone
other than Tenant, voluntarily or by operation of law, to
reimburse Landlord promptly for reasonable legal and other
expenses incurred by Landlord in connection with any request
by Tenant for consent to assignment or subletting; no
assignment or subletting shall affect the continuing primary
liability of Tenant (which, following assignment, shall be
joint and several with the assignee); no consent to any of the
foregoing in a specific instance shall operate as waiver in
any subsequent instance. If Tenant requests Landlord's consent
to assign this Lease or sublet more than 50% of the Premises,
Landlord shall have the option, exercisable by written notice
to Tenant given within 30 days after receipt of such request,
to terminate this Lease as to the portion of the Premises for
which such request was made, as of a date specified in such
notice which shall be not less than 45, or more than 60 days
after the date of such notice; and any rental received by
Tenant from sub-tenant must be remitted to Landlord. Anything
contained in the foregoing provisions of this section to the
contrary notwithstanding, neither Tenant nor any other person
having interest in the possession, use, occupancy or
utilization of the Premises shall enter into any lease,
sublease, license, concession or other agreement for use,
occupancy or utilization of space in the Premises which
provides for rental or other payment for such use, occupancy
or utilization based, in whole or in part, on the net income
or profits derived by any person from the Premises leased,
used, occupied or utilized (other than an amount based on a
fixed percentage or percentages of receipts or sales), and any
such purported lease, sublease, license, concession or other
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agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession use,
occupancy or utilization of any part of the Premises;
6.1.7 Indemnity - To defend, 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 implied limitation, reasonable counsel fees): (i)
arising from the omission, fault, willful act, negligence or
other misconduct of Tenant or from 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;
Likewise, Landlord shall defend, save harmless, and indemnify
Tenant 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 implied limitation, reasonable counsel
fees): (i) arising from the omission, fault, willful act,
negligence or other misconduct of Landlord, or (ii) resulting
from the failure of Landlord to perform and discharge its
covenants and obligations under this Lease;
6.1.8 Tenant's Liability Insurance - To maintain public liability
insurance in the Premises in amounts which shall, at the
beginning of the Term, be at least equal to the limits set
forth in Section 1.1 and from time to time during the Term,
shall be for such higher limits, if any, as are customarily
carried in the area in which the Premises are located on
property similar to the Premises and used for similar purposes
and to furnish Landlord with the certificates thereof;
6.1.9 Tenant's Workmen's Compensation Insurance - To keep all
Tenant's employees working in the Premises covered by
workmen's compensation insurance in statutory amounts and to
furnish Landlord with certificates thereof;
6.1.10 Landlord's Right of Entry - To permit Landlord and Landlord's
agents entry after reasonable prior notice, which may be given
by phone, except in an emergency when no notice shall be
required; to examine the Premises at reasonable times and, if
Landlord shall so elect, to make repairs or replacements; to
remove, at Tenant's expense, any changes, additions, 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 six months preceding expiration
of the Term and to prospective
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purchasers and mortgagees at all reasonable times all without
unreasonable interference with Tenant's use of the Premises;
6.1.11 Loading - Not to place a load upon the Premises exceeding an
average rate of ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇; and
not to move any safe, vault or other heavy equipment in, about
or out of the Premises except in such a manner and at such
times as Landlord shall in each instance approve; Tenant's
business machines and mechanical equipment which cause
vibration or noise that may be transmitted to the Building
structure or to any other leased space in the Building shall
be placed and maintained by Tenant in settings of cork,
rubber, spring, or other types of vibration eliminators
sufficient to eliminate such vibration or noise;
6.1.12 Landlord's Costs - In case Landlord shall, without any fault
on its part, be made party to any litigation commenced by or
against Tenant or by or against any parties in possession of
the Premises or any part thereof claiming under Tenant, to
pay, as additional rent, all costs including, without implied
limitation, reasonable counsel fees incurred by or imposed
upon Landlord in connection with such litigation and as
additional rent, also to pay all such costs and fees incurred
by Landlord in connection with the successful enforcement by
Landlord of any obligations of Tenant under this Lease;
Similarly, in case Tenant shall, without any fault on its
part, be made party to any litigation commenced by or against
Landlord or by or against any parties in possession of the
Premises or any part thereof claiming under Landlord, to pay
all costs including, without implied limitation, reasonable
counsel fees incurred by or imposed upon Tenant in connection
with such litigation, also to pay all such costs and fees
incurred by Tenant in connection with the successful
enforcement by Tenant of any obligations of Landlord under
this Lease;
6.1.13 Tenant's Property - All the furnishings, fixtures, equipment,
effects and property of every kind, nature and description of
Tenant and of all persons claiming by, through or under Tenant
which, during the continuance of this Lease or any occupancy
of the Premises by Tenant or anyone claiming under Tenant, may
be on the Premises or elsewhere in the Building or on the Lot
shall be at the sole risk and hazard of Tenant, except for
Landlord's negligence or willful act of omission, and if the
whole or any part thereof shall be destroyed or damaged by
fire, water or otherwise, or by the leakage or bursting of
water pipes, steam pipes, or other pipes, by theft, or from
any other cause, no part of said loss or damage is to be
charged to or to be borne by Landlord unless the same was
caused by Landlord's negligence;
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6.1.14 Labor or Materialmen's Liens - To pay promptly when due the
entire cost of any work done on the Premises by Tenant, its
agents, employees, or independent contractors; not to cause
any liens for labor or material performed or furnished in
connection therewith to attach to the Premises; and
immediately to discharge or provide a bond reasonably
satisfactory to Landlord and Landlord's mortgagee for, any
such liens which may so attach and to vigorously pursue their
discharge and removal;
6.1.15 Changes or Additions - Not to make any material changes or
additions to the Premises without Landlord's prior written
consent, which consent shall not be unreasonably withheld or
delayed; and
6.1.16 Holdover - To pay to Landlord 175% the total of the Fixed and
additional rent then applicable for each month or portion
thereof Tenant shall retain possession of the Premises or any
part thereof after the termination of this Lease, whether by
lapse of time or otherwise, and also to pay all damages
sustained by Landlord on account thereof; the provisions of
this subsection shall not operate as a waiver by Landlord of
any right of re-entry provided in this Lease; at the option of
the Landlord exercised by a written notice given to Tenant
while such holding over continues for ninety (90) days or
longer, such holding over shall constitute an extension of
this Lease for a period of six months at 150% the Fixed and
additional rent.
6.1.17 Hazardous Materials - Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of
any biologically or chemically active or other hazardous
substances, or materials onto or in the vicinity of the
Premises. Tenant shall not allow the storage or use of such
substances or materials in any manner not sanctioned by law or
by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to
be brought into the Premises any such materials or substances
except to use in the ordinary course of Tenant's business, and
then only after written notice is given to Landlord of the
identity of such substances or materials. Notwithstanding the
foregoing, Tenant may use such materials as are normally used
in an office building for cleaning, copy machines and the
like, provided the same are used in compliance with all
applicable legal requirements. Without limitation, hazardous
substances and materials shall include those described in the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et
seq., the Resource Conservation and Recovery Act, as amended,
42 U.S.C. Section 6901 et seq., the Massachusetts Hazardous
Waste Management Act, as amended, M.G.L. c.21C, the
Massachusetts Oil and Hazardous Material Release Prevention
and Response Act, as amended, M.G.L. c.21E, any
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applicable local ordinance or bylaw, and the regulations
adopted under these acts, as amended (collectively, the
"Hazardous Waste Laws"). If any lender or governmental agency
shall ever require testing to ascertain whether or not there
has been any release of hazardous materials, then the
reasonable costs thereof shall be reimbursed by Tenant to
Landlord upon demand as additional charges if such requirement
applies to the Premises. If Tenant receives from any federal,
state or local governmental agency any notice of violation or
alleged violation of any Hazardous Waste Law, or if Tenant is
obligated to give any notice under any Hazardous Waste Law,
Tenant agrees to forward to Landlord a copy of any such notice
within three (3) days of Tenant's receipt or transmittal
thereof. In addition, Tenant shall execute affidavits,
representations and the like from time to time at Landlord's
request concerning Tenant's best knowledge of belief regarding
the presence of hazardous substances or materials on the
Premises. In all events, Tenant shall indemnify Landlord in
the manner elsewhere provided in this lease from any release
of hazardous materials on the Premises occurring while Tenant
is in possession, or elsewhere if caused by Tenant or persons
acting under Tenant. Landlord retains the right to inspect the
Premises at all reasonable times, upon reasonable notice to
Tenant, to ensure compliance with this paragraph. The within
covenants shall survive the expiration or earlier termination
of the lease term.
ARTICLE VII
CASUALTY AND TAKING
7.1 CASUALTY AND TAKING
In case during the Term all or any substantial part of the Premises,
the Building, or Lot or any one or more of them, are damaged materially by fire
or any other cause or by action of public or other authority in consequence
thereof such that in Landlord's estimate it will take 120 days or longer to
restore the Premises, Building or Lot to its prior condition, or are taken by
eminent domain or Landlord receives compensable damage by reason of anything
lawfully done in pursuance of public or other authority, this Lease shall
terminate at either Tenant's or Landlord's election, which may be made as to
Landlord, notwithstanding Landlord's entire interest may have been divested, by
notice given to Tenant within 30 days after the occurrence of the event giving
rise to the election to terminate, or if by Tenant within 30 days of notice by
Landlord that such restoration will require 120 days or longer to complete, or
notice by Landlord of such taking. Either such notice shall specify the
effective date of termination which shall be not less than 30, nor more than 60,
days after the date of notice of such termination. In the event that such
substantial and material casualty occurs within the last 180 days of the Term
and Tenant has not exercised its extension option, then if a substantial portion
of the Premises is rendered untenantable for the normal conduct of Tenant's
business for
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a period of greater than 60 days, then Tenant shall have the right to terminate
this Lease by notice to Landlord, such notice to be given and exercised as set
forth in the previous sentence. If in any such case the Premises are rendered
unfit for use and occupation or untenantable for the normal conduct of Tenant's
business, and the Lease is not so terminated, Landlord shall use due diligence
to put the Premises, or, in case of taking, what may remain thereof (excluding
any items installed or paid for by Tenant which Tenant may be required or
permitted to remove) into proper condition for use and occupation to the extent
permitted by the net award of insurance or damages in at least as good a
condition as at the commencement of the Term giving due consideration to wear
and tear, and a just proportion of the Fixed Rent and Additional Rent according
to the nature and extent of the injury shall be abated until the Premises or
such remainder shall have been put by Landlord in such condition; and in case of
a taking which permanently reduces the area of the Premises, a just proportion
of the Fixed Rent and Additional Rent shall be abated for the remainder of the
Term and an appropriate adjustment shall be made to the Annual Estimated
Operating Expenses.
7.2 RESERVATION OF AWARD
Landlord reserves to itself any and all rights to receive awards made
for damages to the Premises, Building or Lot and the leasehold hereby created,
or any one or more of them, accruing by reason of exercise of eminent domain or
by reason of anything lawfully done in pursuance of public or other authority.
Tenant hereby releases and assigns to Landlord all Tenant's rights to such
awards, and covenants to deliver such further assignments and assurances thereof
as Landlord may from time to time request, hereby irrevocably designating and
appointing Landlord as its attorney-in-fact to execute and deliver in Tenant's
name and behalf all such further assignments thereof. It is agreed and
understood, however, that Landlord does not reserve to itself, and Tenant does
not assign to Landlord, any damages payable for (i) movable trade fixtures
installed by Tenant or anybody claiming under Tenant, at its own expense, or
(ii) relocation expenses recoverable by Tenant from such authority in a separate
action.
ARTICLE VIII
RIGHTS OF MORTGAGEE
8.1 PRIORITY OF LEASE
Prior to the date hereof, Landlord shall cause to be obtained
non-disturbance and attornment agreements, in customary form, from all existing
mortgage holders. Landlord shall have the option to subordinate this Lease to
any mortgagee or deed of trust of the Lot or Building, or both ("the mortgaged
premises"), provided that the holder thereof enters into an agreement with
Tenant by the terms of which the holder will agree to recognize the rights of
Tenant under this Lease and to accept Tenant as tenant of the Premises under the
terms and conditions of this Lease in the event of acquisition of title by such
holder through foreclosure proceedings or otherwise and Tenant will agree to
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recognize the holder of such mortgage as Landlord in such event, which agreement
shall be made to expressly bind and inure to the benefit of the successors and
assigns of Tenant and of the holder and upon anyone purchasing the mortgaged
premises at any foreclosure sale. Any such mortgage to which this Lease shall be
subordinated may contain such terms, provisions and conditions as the holder
deems usual or customary. Unless Landlord exercises such option, this Lease
shall be superior to and shall not be subordinated to any mortgage or other
voluntary lien or other encumbrance on the mortgaged premises.
8.2 LIMITATION ON MORTGAGEE'S LIABILITY
Upon entry and taking possession of the mortgaged premises for any
purpose other than foreclosure, the holder of a mortgage shall have all rights
of Landlord, and during the period of such possession, the duty to perform all
Landlord's obligations hereunder. Except during such period of possession, no
such holder shall be liable, either as mortgagee or as holder of a collateral
assignment of this Lease, to perform, or be liable in damages for failure to
perform, any of the obligations of Landlord unless and until such holder shall
enter and take possession of the mortgaged premises for the purpose of
foreclosing a mortgage. Upon entry for the purpose of foreclosing a mortgage,
such holder shall be liable to perform all of the obligations of Landlord,
subject to the provisions of Section 8.3 provided that a discontinuance of any
foreclosure proceeding shall be deemed a conveyance under the provisions of
Section 10.5 to the owner of the equity of the mortgaged premises.
8.3 NO PREPAYMENT OR MODIFICATION, ETC.
No Fixed Rent, additional rent, or any other charge shall be paid more
than 30 days prior to the due dates thereof, and payments made in violation of
this provision shall (except to the extent that such payments are actually
received by a mortgagee in possession or in the process of foreclosing its
mortgage) be a nullity as against such mortgagee, and Tenant shall be liable for
the amount of such payments to such mortgagee. No assignment of this Lease and
no agreement to make or accept any surrender, termination or cancellation of
this Lease and no agreement to modify so as to reduce the rent, change the Term,
or otherwise materially change the rights of Landlord under this Lease, or to
relieve Tenant of any obligations or liability under this Lease, shall be valid
unless consented to in writing by Landlord's mortgagees of record, if any.
8.4 NO RELEASE OR TERMINATION
No act or failure to act on the part of Landlord which would entitle
Tenant under the terms of this Lease, or by law, to be relieved of Tenant's
obligations hereunder or to terminate this Lease, shall result in a release or
termination of such obligations or a termination of this Lease unless (i) Tenant
shall have first given written notice of
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Landlord's act or failure to act to Landlord's mortgagees of which Landlord has
given Tenant notice, together with the address therefor, if any, specifying the
act or failure to act on the part of Landlord which could or would give basis to
Tenant's rights, and (ii) such mortgagees, after receipt of such notice, have
failed or refused to correct or cure the condition complained of within a
reasonable time thereafter, but nothing contained in this Section 8.4 shall be
deemed to impose any obligation on any such mortgagee to correct or cure any
such condition. "Reasonable time" as used above means and includes a reasonable
time to obtain possession of the mortgaged premises, if the mortgagee elects to
do so, and a reasonable time to correct or cure the condition if such condition
is determined to exist. The current mortgagee is Teachers Insurance and Annuity
Association, Attention: Mortgage Department, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
8.5 CONTINUING OFFER
The covenants and agreements contained in this Lease with respect to
the rights, powers and benefits of a mortgagee (particularly, without limitation
thereby, the covenants and agreements contained in this Article VIII) constitute
a continuing offer to any person, corporation or other entity, which by
accepting or requiring an assignment of this Lease or by entry or foreclosure
assumes the obligations herein set forth with respect to such mortgagee, and
such mortgagee shall be entitled to enforce such provisions in its own name.
Tenant agrees on request of Landlord to execute and deliver from time to time
any agreement which may reasonably be deemed necessary to implement the
provisions of this Article VIII.
8.6 SUBMITTAL OF FINANCIAL STATEMENT
At any time and from time to time during the term of this Lease, within
15 days after request therefor by Landlord, no more often than annually Tenant
shall supply to Landlord and/or any Mortgagee a current financial statement or
such other financial information as may be reasonably required by any such
party.
ARTICLE IX
DEFAULT
9.1 EVENTS OF DEFAULT
If any default by Tenant continues after notice, in case of Fixed Rent
or additional rent for more than ten days, or in any other case for more than 30
days and such additional time, if any, as is reasonably necessary to cure the
default if the default is of such a nature that it cannot reasonably be cured in
30 days; or if Tenant or Guarantor makes any assignment for the benefit of
creditors, or files a petition under any bankruptcy or insolvency law; or if
such a petition is filed against Tenant or any Guarantor and is not dismissed
within 90 days; or if a receiver or similar officer becomes
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entitled to Tenant's leasehold hereunder and it is not returned to Tenant within
90 days, or if such leasehold is taken on execution or other process of law in
any action against Tenant then, and in any such cases, Landlord and the agents
and servants of Landlord may, in addition to and not in derogation of any
remedies for any preceding breach of covenant, immediately or at any time
thereafter while such default continues and without further notice and with
process of law enter into and upon the Premises or any part thereof in the name
of the whole or mail a notice of termination addressed to Tenant at the Premises
and repossess the same as of Landlord's former estate and expel Tenant and those
claiming through or under Tenant and remove its and their effects without being
deemed guilty of any manner of trespass and without prejudice to any remedies
which might otherwise be used for arrears of rent or prior breach of covenant,
and upon such entry or mailing as aforesaid, this Lease shall terminate, but
Tenant shall remain liable as hereinafter provided. Tenant hereby waives all
statutory rights (including, without limitation, rights of redemption, if any)
to the extent such rights may be lawfully waived, and Landlord, without notice
to Tenant, may store Tenant's effects and those of any person claiming through
or under Tenant at the expense and risk of Tenant and, if Landlord so elects
after written notice to Tenant, may sell such effects at public auction or
private sale and apply the net proceeds to the payment of all sums due to
Landlord from Tenant, if any, and pay over the balance, if any, to Tenant.
9.2 TENANT'S OBLIGATIONS AFTER TERMINATION
In the event that this Lease is terminated under any of the provisions
contained in Section 9.1 or shall be otherwise terminated for breach of any
obligation of Tenant, Tenant covenants to pay forthwith to Landlord, as
compensation, the excess of the total rent reserved for the residue of the Term
over the rental value of the Premises for said residue of the Term. In
calculating the rent reserved, there shall be included, in addition to the Fixed
Rent and all additional rent, the value of all other consideration agreed to be
paid or performed by Tenant for said residue. Tenant further covenants as an
additional and cumulative obligation after any such ending to pay punctually to
Landlord all the sums and perform all the obligations which Tenant covenants in
this Lease to pay and to perform in the same manner and to the same extent and
at the same time as if this Lease had not been terminated. In calculating the
amounts to be paid by Tenant under the next foregoing covenant, Tenant shall be
credited with any amount paid to Landlord as compensation as provided in the
first sentence of this Section 9.2 and also with the net proceeds of any rents
obtained by Landlord by reletting the Premises, after deducting all Landlord's
reasonable expenses in connection with such reletting, including, without
implied limitation, all repossession costs, brokerage commissions, fees for
legal services and expense of preparing the Premises for such reletting, it
being agreed by Tenant that Landlord may (i) relet the Premises or any part or
parts thereof for a term or terms which may, at Landlord's option, be equal to
or less than or exceed the period which would otherwise have constituted the
balance of the Term and may grant such concessions and free rent as Landlord in
its sole judgment considers advisable or necessary to relet the same, and (ii)
make such alterations, repairs
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and decorations in the Premises as Landlord in its sole judgment considers
advisable or necessary to relet the same, and no action of Landlord in
accordance with the foregoing or failure to relet or to collect rent under
reletting shall operate or be construed to release or reduce Tenant's liability
as aforesaid.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater, equal to, or less than the amount of the loss or damages
referred to above.
ARTICLE X
MISCELLANEOUS
10.1 TITLES
The titles of the Articles are for convenience and are not to be
considered in construing this Lease.
10.2 NOTICE OF LEASE
Both parties shall execute and deliver, after the Term begins, a short
form of this Lease in a form appropriate for recording or registration, and upon
request of either party if this Lease is terminated before the Term expires, an
instrument in such form acknowledging the date of termination.
10.3 RELOCATION
Intentionally Omitted.
10.4 NOTICES FROM ONE PARTY TO THE OTHER
No notice, approval, consent requested or election required or
permitted to be given or made pursuant to this Lease shall be effective unless
the same is in writing. Communications shall be addressed, if to Landlord, at
Landlord's Address, or at such other address as may have been specified by prior
notice to Tenant and, if to Tenant, at Tenant's Address or at such other place
as may have been specified by prior notice to Landlord. Any communication so
addressed shall be deemed duly served if mailed by registered or certified mail,
return receipt requested and shall be deemed to have been given two (2) business
days after it has been so mailed.
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10.5 BIND AND INURE
The obligations of this Lease shall run with the land, and this Lease
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Landlord named herein and
each successive owner of the Premises shall be liable only for the obligations
accruing during the period of its ownership. Neither the Landlord named herein
nor any successive owner of the Premises whether an individual, trust, a
corporation or otherwise shall have any personal liability beyond their equity
interest in the Premises.
10.6 NO SURRENDER
The delivery of keys to any employees of Landlord or to Landlord's
agent or any employee thereof shall not operate as a termination of this Lease
or a surrender of the Premises.
10.7 NO WAIVER, ETC.
The failure of Landlord or of Tenant to seek redress for violation of,
or to insist upon the strict performance of any covenant or condition of this
Lease or, with respect to such failure of Landlord, any of the Rules and
Regulations referred to in Section 6.1.4, whether heretofore or hereafter
adopted by Landlord, shall not be deemed a waiver of such violation nor prevent
a subsequent act, which would have originally constituted a violation, from
having all the force and effect of an original violation, nor shall the failure
of Landlord to enforce any of said Rules and Regulations against any other
tenant in the Building be deemed a waiver of any such Rules or Regulations. The
receipt by Landlord of Fixed Rent or additional rent with knowledge of the
breach of any covenant of this Lease shall not be deemed a waiver of such breach
by Landlord, unless such waiver be in writing signed by Landlord. No consent or
waiver, express or implied, by Landlord or Tenant to or of any breach of any
agreement or duty shall be construed as a waiver or consent to or of any other
breach of the same or any other agreement or duty.
10.8 NO ACCORD AND SATISFACTION
No acceptance by Landlord of a lesser sum than the Fixed Rent and
additional rent then due shall be deemed to be other than on account of the
earliest installment of such rent due, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as rent be deemed as
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
pursue any other remedy in this Lease provided.
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10.9 CUMULATIVE REMEDIES
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 it 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.
10.10 PARTIAL INVALIDITY
If any term of this Lease, or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such term to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
10.11 LANDLORD'S RIGHT TO CURE
If Tenant shall at any time default in the performance of any
obligation under this Lease, which default continues after giving of any
required notice and the expiration of any applicable grace period, Landlord
shall have the right, but shall not be obligated, to enter upon the Premises and
to perform such obligation, notwithstanding the fact that no specific provision
for such substituted performance by Landlord is made in this Lease with respect
to such default. In performing such obligation, Landlord may make any payment of
money or perform any other act. All sums so paid by Landlord (together with
interest at the rate of the prime rate as determined by a major Boston bank
selected by Landlord, plus 3% (i.e., prime plus 3%) per annum, and all necessary
incidental costs and expenses in connection with the performance of any such
acts by Landlord, shall be deemed to be additional rent under this Lease and
shall be payable to Landlord within thirty (30) days of 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.
Similarly, if Landlord shall at any time default in the performance of
any material obligation under this Lease, which default continues after giving
of any required notice and the expiration of any applicable grace period, Tenant
shall have the right, after 30 days notice to Landlord and Landlord's mortgagee,
but shall not be obligated, to perform such obligation, notwithstanding the fact
that no specific provision for such substituted performance by Tenant is made in
this Lease with respect to such material default. In performing such obligation,
Tenant may make any payment of money or perform any other act. All reasonable
sums so paid by Tenant (together with interest at the rate of the prime rate as
determined by a major Boston bank selected by Tenant, plus 3% (i.e.,
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prime plus 3%) per annum, and all necessary incidental costs and expenses in
connection with the performance of any such acts by Tenant shall be payable to
Tenant within thirty (30) days of demand. Tenant may exercise the foregoing
rights without waiving any other of its rights or releasing Landlord from any of
its obligations under this Lease.
10.12 ESTOPPEL CERTIFICATE
Tenant agrees on the Commencement Date, and from time to time as
reasonably necessary thereafter, upon not less than 15 days' prior written
request by Landlord, to execute, acknowledge and deliver to Landlord a statement
in writing in the form attached hereto as Exhibit G, certifying that this Lease
is unmodified and in full force and effect; that Tenant has no defenses, offsets
or counterclaims against its obligations to pay the Fixed Rent and additional
rent and to perform its other covenants under this Lease; that there are no
uncured defaults of Landlord or Tenant under this Lease (or, if there are any
defenses, offsets, counterclaims, or defaults, setting them forth in reasonable
detail); and the dates to which the Fixed Rent, additional rent and other
charges have been paid. Any such statements delivered pursuant to this Section
10.12 may be relied upon by any prospective purchaser or mortgage of premises
which include the Premises or any prospective assignee of any such mortgagee.
10.13 WAIVER OF SUBROGATION
Any insurance carried by either party with respect to the Premises and
property therein or occurrences thereon, shall if the other party so requests
and it can be so written without additional premium or with any additional
premium which the other party agrees to pay, include a clause or endorsement
denying to the insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to occurrence of injury or
loss. Each party, notwithstanding any provisions of this Lease to the contrary,
hereby waives any rights of recovery against the other for injury or loss due to
hazards covered by insurance containing such clause or endorsement to the extent
of the indemnification received thereunder.
10.14 BROKERAGE
Tenant and Landlord represent and warrant that either has dealt with no
broker in connection with this transaction other than Palladins, Inc., ▇▇▇▇▇▇
▇▇▇▇▇ of Whittier Partners, and ▇▇▇▇▇ ▇▇▇▇▇ of Leggat ▇▇▇▇▇▇/▇▇▇▇▇ & ▇▇▇▇▇ and
agrees to defend, indemnify and save Landlord harmless from and against any and
all claims for a commission arising out of this Lease made by anyone other than
Palladins, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇ of Whittier Partners, and ▇▇▇▇▇ ▇▇▇▇▇ of ▇▇▇▇▇▇
▇▇▇▇▇▇/▇▇▇▇▇ & ▇▇▇▇▇. Landlord shall pay the commission of said brokers.
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ARTICLE XI
SECURITY DEPOSIT
Intentionally Omitted.
EXECUTED as a sealed instrument in two or more counterparts on the day
and year first above written.
TENANT: LANDLORD:
ASPECT MEDICAL SYSTEMS, INC. NATICK EXECUTIVE PARK TRUST NO. 2
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------- --------------------------------
as Trustee, and not individually
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EXHIBIT "D"
LANDLORD'S SERVICES
I. CLEANING
A. General
1. All cleaning work will be performed between 8:00 AM
and midnight, Monday through Friday, unless otherwise
necessary for stripping, waxing, etc., but shall not
unreasonably interfere with Tenant's use of the
Premises.
2. Abnormal waste removal (e.g., computer installation
paper, bulk packaging, wood or cardboard crates,
refuse from cafeteria operation, etc.) shall be
Tenant's responsibility.
B. Daily Operations (5 times per week)
1. Tenant Areas
a. Empty and clean all waste receptacles. Wash
receptacles as necessary.
b. Vacuum all rugs and carpeted areas.
c. Empty, damp-wipe and dry all ashtrays.
2. Lavatories
a. Sweep and wash floors with disinfectant.
b. Wash both sides of toilet seats with
disinfectant.
c. Wash all mirrors, basins, bowls, urinals.
d. Spot-clean toilet partitions.
e. Empty and disinfect sanitary napkin disposal
receptacles.
f. Refill toilet tissue, towel, soap and
sanitary napkin dispensers.
3. Public Areas
a. Wipe down entrance doors and clean glass
(interior and exterior).
b. Vacuum elevator carpets and wipe down doors
and walls.
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C. Operations as Needed (but not less than every other day)
1. Tenant and Public Areas
a. Buff all resilient floor areas every other
day.
b. Clean water coolers.
D. Weekly Operations
1. Tenant Areas, Lavatories, Public Areas
a. Hand dust and wipe clean all horizontal
surfaces with treated cloths to include
furniture, office equipment, windowsills,
door ledges, chair rails, baseboards,
convector tops, etc. within normal reach.
b. Remove finger marks from private entrance
doors, light switches, and doorways.
c. Sweep all stairways.
E. Monthly Operations
1. Tenant and Public Areas
a. Thoroughly vacuum seat cushions on chairs,
sofas, etc.
b. Vacuum and dust grillwork.
2. Lavatories
a. Wash down interior walls and toilet
partitions.
F. As Required and Weather Permitting (but not less than three
times per year)
1. Entire Building
a. Clean inside of all windows.
b. Clean outside of all windows.
G. Yearly
1. Tenant and Public Areas
a. Strip and wax all resilient tile floor
areas.
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II. HEATING, VENTILATING AND AIR CONDITIONING
1. Heating, ventilation and air conditioning as required to
provide reasonably comfortable temperatures for normal
business day occupancy (except holidays), Monday through
Friday, from 8:00 AM to 6:00 PM and Saturday from 8:00 AM to
1:00 PM.
2. Maintenance on any additional or special air conditioning
equipment and the associated operating cost will be at
Tenant's expense.
III. WATER
1. Hot water for lavatory purposes and cold water for drinking,
lavatory and toilet purposes.
IV. ELEVATORS (If building is elevated)
1. Elevators for the use of all tenants and the general public
for access to and from all floors of the Building, programming
of elevators (including, but not limited to, service
elevators), shall be as Landlord from time to time reasonably
determines best for the Building as a whole, but in any event,
shall include two (2) elevators (subject to necessary repair
or replacement) with a capacity of at least 2,500 pounds at
125 feet per minute.
V. RELAMPING OF LIGHT FIXTURES
1. Tenant will reimburse Landlord for relamping, ballasts and
starters within the Premises, all of which shall be in good
operable condition on the Term Commencement Date, after the
first year of the Term.
VI. CAFETERIA, VENDING AND PLUMBING INSTALLATIONS
1. Any space to be used primarily for lunchroom or cafeteria
operation shall be Tenant's responsibility to keep clean and
sanitary. Cafeteria, vending machines or refreshment service
installations by Tenant must be approved by Landlord in
writing. All maintenance, repairs and additional cleaning
necessitated by such installations shall be at Tenant's
expense.
2. Tenant is responsible for the maintenance and repair of
plumbing fixtures and related equipment installed in the
leased premises for its exclusive use (such as in coffee room,
cafeteria or employee exercise area).
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VII. ELECTRICITY
1. Tenant shall pay for all electricity consumed in Tenant's
space. If not metered separately, Landlord shall reasonably
estimate the cost of such electrical usage for Tenant's lights
and plugs, and Tenant shall reimburse Landlord for such costs
on a monthly basis. If Tenant's use of electrical energy in
Tenant's Space is disproportionate to other tenants' use of
electrical energy, Tenant shall also pay for all excess
electricity consumed in Tenant's space as estimated by
Landlord. If Tenant is billed in any manner for tenant
electricity other than as Estimated Cost of Tenant Electrical
Service to Tenant's space (included in Fixed Rent) as set
forth in Paragraph 1.1 hereof, the Fixed Rent shall be
adjusted by deducting the portion thereof representing the
cost of electrical service to Tenant's Space.
Tenant's use of electrical energy in Tenant's space shall not
at any time exceed the capacity of any of the electrical
conductors or equipment in or otherwise serving Tenant's
space. To ensure that such capacity is not exceeded and to
avert possible adverse effects upon the Building's electrical
system, Tenant shall not, without prior written notice to
Landlord in each instance, connect to the Building electric
distribution system any fixtures, appliances or equipment
which operates on a voltage in excess of 120 or 208 volts
nominal or make any alteration or addition to the electric
system of the Tenant's space. Unless Landlord shall reasonably
object to the connection of any such fixtures, appliances or
equipment, all additional risers or other equipment required
therefore shall be provided by Landlord and the cost thereto
shall be paid by Tenant upon Landlord's demand.
34
EXHIBIT "E"
RULES AND REGULATIONS
1. The entrance, lobbies, passages, corridors, elevators and stairways
shall not be encumbered or obstructed by Tenant, Tenant's agents,
servants, employees, licensees, and visitors be used by them for any
purpose other than for ingress and egress to and from the Premises. The
moving in or out of all safes, freight, furniture, or bulky matter of
any description must take place during the hours which Landlord may
reasonably determine from time to time. Landlord reserves the right to
inspect all freight and bulky matter to be brought into the Building
and to exclude from the Building all freight and bulky matter which
violates any of these Rules and Regulations or the Lease of which these
Rules and Regulations are a part.
2. No curtains, blinds, shades, screens, or signs other than those
furnished by Landlord shall be attached to, hung in, or used in
connection with any window or door of the Premises without the prior
written consent of the Landlord. Interior signs on doors shall be
painted or affixed for Tenant by Landlord or by sign painters first
approved by Landlord, at the expense of Tenant, and shall be of a size,
color and style acceptable to Landlord.
3. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant, nor shall any changes be made in
existing locks or the mechanism thereof without the prior written
consent of Landlord. Tenant must, upon the termination of its tenancy,
restore to Landlord all keys of stores, shops, booths, stands, offices
and toilet rooms, either furnished to or otherwise procured by Tenant;
and in the event of the loss of any keys so furnished, Tenant shall pay
to Landlord the cost thereof.
4. Canvassing, soliciting and peddling in the Building are prohibited, and
Tenant shall cooperate to prevent the same.
5. Tenant may request heating and/or air conditioning during other periods
in addition to normal working hours by submitting their request in
writing to the Building Manager's office no later than 2:00 PM the
preceding workday (Monday through Friday) on forms available from the
Building Manager. The request shall clearly state the start and stop
hours of the "off-hour" service. Tenant shall submit to the Building
Manager a list of personnel who are authorized to make such requests.
Charges are to be determined by the Building Manager on the additional
hours of operations and shall be fair and reasonable and reflect the
additional operating costs involved, provided however, that Tenant
shall not be charged to the extent another tenant makes the same
request prior to Tenant. Currently such charge is $25.00 per hour for
the whole Building and $12.50 per
Page 1 of 2
35
hour for one-half of the Building and shall not be changed without
prior written notice to Tenant.
6. Tenant shall comply with all security measures from time to time
reasonably established by Landlord for the Building.
7. Should Tenant's organization have a non-smoking policy presently in
effect for their visitors and/or employees or institute such a policy
during the term of this Lease and should such policy not prohibit
smoking altogether, then Tenant shall set aside a smoking area within
the leased premises, properly ventilated and/or with smoke filtration
units, so as not to interfere with any fire protection devices, such as
smoke detectors, or the quality of air recirculated in the building's
HVAC system.
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EXHIBIT "F"
GUARANTY
Intentionally Omitted.
37
EXHIBIT "G"
ESTOPPEL CERTIFICATE
THIS CERTIFICATE is made to
with respect to a Lease between
as Landlord and the undersigned, covering a building located in ,
such lease being dated , as amended by (list all amendments):
The undersigned has been advised that
as Trustee as aforesaid (the "Bank"), is about to enter into a transaction
whereby the Bank is making a loan secured by the aforesaid real estate and the
Lease to the undersigned, and under which the Bank may acquire an ownership
interest in such real estate. In connection with this transaction, the entire
interest of the Landlord under the Lease to the undersigned will be assigned to
the Bank. The undersigned acknowledges that the Bank is and will be relying upon
the truth, accuracy and completeness of this letter in proceeding with the
transaction described above.
The undersigned, for the benefit of the bank, their successors and
assigns, hereby certifies, represents, warrants, agrees and acknowledges that:
1. The Lease is in full force and effect in accordance with its terms
without modification or amendment except as noted above and the undersigned is
the holder of the Tenant's interest under the Lease.
2. The undersigned is in possession of all of the Premises described in
the Lease under and pursuant to the Lease and is doing business thereon; and the
premises are completed as required by the Lease.
3. The undersigned has no claims or offsets with respect to any of its
obligations as Tenant under the Lease, and neither the undersigned nor the
Landlord is claimed to be in default under the Lease.
4. The undersigned has not paid any rental or installments thereof more
than thirty (30) days in advance of the due date as set forth in the Lease.
5. Except as otherwise specified in paragraph 9 below, the undersigned
has no notice of prior assignment, hypothecation or pledge of rents of the Lease
or the Landlord's interest thereunder or of the Tenant's interest thereunder.
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6. The term of the Lease has commenced and is presently scheduled to
expire on . If there are any rights of extension or renewal under the terms
of the Lease, the same have not, as of the date of this letter, been exercised
unless specified in paragraph 9 below.
7. The current Monthly Fixed Rent payment is $__________; Monthly Fixed
Rent has been paid through ______________________; Tenant's pro rata share of
Operating Cost Escalation is _________%.
8. Until such time as the Bank shall become the Landlord, if the
undersigned should assert a claim that the Landlord has failed to perform an
obligation to the undersigned under the terms of the Lease or otherwise, notice
thereof shall promptly be furnished to the Bank at the following address:
Teachers Insurance and Annuity Association of America, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other address as Landlord may direct by notice
to Tenant; and the undersigned agrees that the undersigned will not exercise any
rights which the undersigned might otherwise have on account of any such failure
until notice thereof has been given to the Bank, and the Bank has had the same
opportunity to cure any such failure as the Landlord may have under the terms of
the Lease.
9. Each of the statements set forth in Paragraphs 1 through 8 are true,
accurate and complete except as follows (state specifically any exception):
DATED:
ATTEST:
By: By:
------------------------------- -------------------------------
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EXHIBIT "H"
TENANT EXTENSION OPTION
Provided that Tenant is not then in default after the giving of any
required notice and beyond any applicable cure period under this Lease, Tenant
at its option, by written notice provided to Landlord not less than five months
prior to the Expiration Date, may elect to extend the term of this Lease for one
additional three year term. Unless Tenant withdraws its exercise of this
extension option as provided in the following paragraph the exercise of such
extension option shall automatically extend the term of this Lease without the
necessity of additional documentation, and the term "Expiration Date" shall
thenceforth mean the final date of the Lease so extended. At the request of
either Landlord or Tenant, however, any such extension shall be memorialized by
execution of an amendment which confirms and memorializes such extension. The
Fixed Rent payable by Tenant during such extended term shall be at a rate equal
to the greater of: (i) 90% of the "Fair Market Rental Value" of the Premises at
the time of extension; or (ii) an annual amount equal to $14.85 per square foot,
plus a charge for tenant electricity currently estimated at $0.75 per square
foot. Within 10 days after said extension notice from Tenant, Landlord shall,
after discussion with Tenant, determine the Fair Market Rental Value for the
Extension Period by written notice to Tenant. The "Fair Market Rental Value" of
the Premises shall mean the fair market rental value of comparable first-class
office space in Natick and Framingham, Massachusetts. Ninety percent (90%) of
the Fair Market Rental Value so determined by Landlord shall be the Fixed Rent
for the extended term, unless Tenant notifies Landlord, within 15 days of
Tenant's receipt of Landlord's proposed Fair Market Rental Value, that
Landlord's proposed 90% Fair Market Rental Value is not satisfactory to Tenant
(such notice being referred to as "Tenant's Rejection Notice").
In the event that Tenant provides a Tenant Rejection Notice, if the
Fair Market Rental Value is not otherwise agreed upon by Landlord and Tenant
within 15 days after Landlord's receipt of such Tenant Rejection Notice, then
Tenant shall be deemed to have withdrawn its exercise of this Extension Option,
in which case Tenant's rights under this Extension Option shall terminate,
unless Tenant shall give notice to Landlord within 10 days after said 15 day
period that Tenant desires to determine the Fair Market Rental Value of the
Premises by the following arbitration procedure. In such event, each party shall
designate one arbitrator, and the two arbitrators shall designate a third, and
the Fair Market Rental Value of the Premises shall be the average of the two
closest values determined by three arbitrators (unless the highest and lowest
values determined are equidistant from the middle value, in which case the Fair
Market Rental Value shall be equal to the middle value). The Fixed Rent for the
extension term shall be the greater of: (i) 90% of the Fair Market Rental Value
so determined, or (ii) an annual amount equal to $14.85 per square foot plus a
charge for tenant electricity currently estimated at $0.75 per square foot. Such
determination
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40
shall, if at all possible, be made within 30 days after Landlord's receipt of
Tenant's notification that it desires the Fair Rental Value to be determined by
arbitration. Tenant and Landlord shall each pay the fees of any arbitrator
appointed by it and shall share equally the fees of the third arbitrator.
41
EXHIBIT "I"
RIGHT OF FIRST OFFER
ADJACENT SECOND FLOOR SPACE
Provided that Tenant is not then in default of this Lease after the
giving of any required notice and beyond any applicable cure period and, if
within the last eight (8) months of the Term, have exercised its Extension
Option as set forth in Exhibit "H" hereof, at the time such Right of First Offer
is exercised, Tenant shall be granted a right of first offer to expand into and
lease the adjacent first floor space of 6,599 square feet, the current lease for
which is scheduled to terminate on April 30, 1997.
Landlord will give Tenant notice of the expected date on which said
adjacent space will become available promptly after it becomes aware of the same
and, in any event, within 14 days of Landlord's notification of its expected
availability or within 60 days of the scheduled termination date. Rent for such
space shall be fair market value of such space, but not less than Tenant's then
existing rent. Landlord shall state its estimation of the fair market value and
supporting data in its notification to Tenant. Upon receipt of Landlord's notice
of the availability of space and offer to rent it at Landlord's stated fair
market rental value, Tenant shall have seven business days to either: (i) accept
Landlord's proposed rental terms; or (ii) alternately, within seven business
days of receipt of Landlord's notice and offer, to propose an alternate rent for
the adjacent space; or (iii) reject Landlord's offer without counter-proposing
an alternate rent. Landlord shall have seven business days after receipt of
Tenant's counter-proposal of Fixed Rent, if any, to accept or reject Tenant's
counter-proposal. In the event of either (i) or (ii) if either Landlord or
Tenant accepts the others proposed Fixed Rent, then Landlord shall present
Tenant with a lease amendment in reasonable form reflecting such agreement,
within ten days of either such acceptance, and Tenant shall have 30 days in
which to execute such lease amendment. In such event, failure to execute such
lease amendment by Tenant shall result in extinguishment of this right of first
offer, and thereafter Landlord shall be free to lease the adjacent space on
whatever terms and conditions it desires to any tenant it chooses. In the event
of (iii) or failure by Tenant to respond within seven business days, this Right
of First Offer shall be extinguished and Landlord shall thereafter be free to
lease such space on whatever terms and conditions to whomever it chooses.
In the event that Tenant makes a Fixed Rent counter-proposal for said
expansion space as set forth in (ii) above, and Landlord rejects such Tenant
rent counter-proposal, then Landlord shall be free to rent such adjacent space
to any other party at a rent which is greater than Tenant's counter-proposed
Fixed Rent (giving due regard to the value of any tenant improvements to be
provided by Landlord, rental concessions or other consideration). However, in
the event of an offer by a prospective tenant to lease any said adjacent second
floor space at a Fixed Rent equal
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to or less than that of Tenant's counter-proposal Fixed Rent (giving due regard
to the value of any tenant improvements to be provided by Landlord, rental
concessions or other consideration), then Landlord shall give Tenant notice of
such a prospective tenant, and Tenant shall have a right of first refusal to
lease such adjacent second floor space on identical terms and conditions to that
offered such alternate tenant, such right to be exercised by notice given to
Landlord within seven days of receipt by Tenant of Landlord's notice of another
prospective tenant at such equal or lesser Fixed Rent, and to execute a lease
amendment for such adjacent space on such terms and conditions and in reasonable
form, within 30 days of acceptance by Tenant of said alternate terms and
conditions. Failure by Tenant to execute said lease amendment shall result in an
extinguishment of all tenant's rights under this right of first offer, and
Landlord shall thereafter be free to lease space as it pleases on whatever terms
and conditions to any tenant it chooses.
Any such expansion space will be leased in "as is" condition at the
date the prospective tenant would have occupied, or one week after such space is
vacated by the prior tenant at Tenant's election.
The Lease Amendment for such space shall be on the same terms as are
set forth herein except: (1) the term shall expire on the Term Expiration Date
of this extended Lease; (2) the Fixed Rent for the Expansion Space shall be as
set forth above; (3) there shall be no additional Tenant Improvements to the
Expanded Premises provided by Landlord; and (4) there shall be no partial rental
abatement for the expanded Premises, provided however, that Tenant shall be
given credit for the value of any tenant improvements to be provided by
Landlord, rental concessions or other consideration which Landlord was to have
provided to such other prospective tenant.
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SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement
("Agreement") executed between Teachers Insurance and Annuity Association of
America, a New York corporation ("Mortgagee") and Aspect Medical Systems, Inc.
("Tenant").
W I T N E S S E T H:
WHEREAS, Natick Executive Park Trust No. 2 ("Landlord") and Tenant have
entered into a certain lease dated August, 1994, ("Lease") at Building Two,
Natick Executive Park, Natick, Massachusetts ("Premises"), said Premises being
more particularly described in said Lease and being situated on a portion of the
real property described in Exhibit "A" attached hereto and made a part hereof;
and
WHEREAS, Mortgagee has made a mortgage loan to Landlord in the original
principal amount secured by a Mortgage dated _________________ ("Mortgage")
covering the Premises, which Mortgage is recorded in official Records Book __,
Page ___, of the Middlesex South District Registry of Deeds, Massachusetts.
NOW THEREFORE, it is mutually agreed as follows:
1. The Lease is and shall be subject and subordinate to the Mortgage
and to all renewals, modifications, consolidations, replacements and extensions
of the Mortgage.
2. In the event of a foreclosure of the Mortgage or should Mortgagee
obtain title by deed in lieu thereof, or otherwise, Mortgagee, for itself, its
successors or assigns, agrees that Tenant may continue its occupancy of the
Premises in accordance with the terms and provisions of the Lease, so long as
Tenant continues to pay rent and otherwise to perform its obligations thereunder
after the giving of any required notice and the expiration of any applicable
grace period. Mortgagee agrees not to name Tenant as a party defendant in any
foreclosure action.
3. Tenant agrees to attorn to: (a) Mortgagee when in possession of the
Premises; (b) a receiver appointed in an action or proceeding to foreclose the
Mortgage or otherwise; or (c) to any party acquiring title to the Premises as a
result of foreclosure of the Mortgage or deed in lieu thereof. Tenant further
covenants and agrees to execute and deliver, upon request of Mortgagee, or its
assigns, an appropriate agreement of attornment with any subsequent title holder
of the Premises.
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4. So long as the Mortgage on the Premises remains outstanding and
unsatisfied, Tenant will deliver to Mortgagee a copy of all notices permitted or
required to be given to Landlord by Tenant pursuant to which the Tenant proposes
to ▇▇▇▇▇ or reduce the rental payable under the Lease or to terminate or cancel
the Lease, and that no such notices to Landlord shall be effective, unless a
copy of such notice is also delivered to Mortgagee. At any time before the
rights of Landlord shall have been forfeited or adversely affected because of
any default or failure of performance under the Lease as therein provided,
Mortgagee shall have the right (but not the obligation) to cure such default or
failure of performance within thirty (30) days from Mortgagee's receipt of such
written notice from Tenant stating the nature of such default or failure of
performance.
5. Tenant certifies that the Lease has been duly executed by Tenant,
that no rent under the Lease has been paid more than thirty (30) days in advance
of its due date; and the Tenant, as of this date, has no charge, lien or claim
offset under the Lease, or otherwise, against the rents or other charges due or
be become due thereunder.
6. If Mortgagee shall succeed to the interest of Landlord under the
Lease, Mortgagee shall be bound to Tenant under all the terms, covenants and
conditions of the Lease, and Tenant shall, from and after Mortgagee's succession
to the interest of Landlord under the Lease, have the same remedies against
Mortgagee for the breach of an agreement contained in the Lease that Tenant
might have had under the Lease against Landlord if Mortgagee had not succeeded
to the interest of Landlord; provided further, however, that Mortgagee shall not
be:
(a) liable for any warranty, act or omission of any prior
landlord, or obligation arising prior to the date of
acquisition;
(b) subject to any offsets or defense which Tenant might have
against any prior landlord (including Landlord), except those
which arose out of such Landlord's default under the Lease and
which continue after Tenant has notified Mortgagee and given
Mortgagee an opportunity to cure as provided herein; and
(c) bound by any rent or additional rent which Tenant might have
paid more than thirty (30) days in advance to any prior
landlord (including Landlord); or
(d) bound by any amendment or modification of the Lease or any
collateral agreement made without Mortgagee's consent.
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7. This Agreement shall be binding upon and inure to the benefit of the
heirs, successors and assigns of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
indicated below their respective signatures.
Signed, sealed and delivered in the MORTGAGEE;
presence of: TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
A New York Corporation
By:
--------------------------------- --------------------------------
Its:
--------------------------------
Date:
------------------------------
Signed, sealed and delivered in the TENANT:
presence of: ASPECT MEDICAL SYSTEMS, INC.
/s/ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- ---------------------------------
Its: President/CEO
---------------------------------
Date: 8/24/94
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