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Sample Business ContractsHome: Sample Business Contracts:
LEASE
64 Sidney Street
Cambridge, Massachusetts
LANDLORD
================================================================================
FOREST CITY 64 SIDNEY STREET, INC.
TENANT
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ALKERMES, INC.
Dated: October 26, 2000
<PAGE> 2
TABLE OF CONTENTS
Page
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ARTICLE 1
RECITALS AND DEFINITIONS......................................................................1
Section 1.1 Recitals...........................................................1
Section 1.2 Definitions........................................................1
ARTICLE 2
PREMISES AND TERM.............................................................................4
Section 2.1 Premises...........................................................4
Section 2.2 Appurtenant Rights.................................................5
Section 2.3 Landlord's Reservations............................................5
Section 2.4 Parking Passes.....................................................6
Section 2.5 Prior Leases Superseded; Commencement Date.........................6
Section 2.6 Extension Options..................................................7
Section 2.7 Expansion Rights...................................................9
Section 2.8 Stub Period.......................................................11
ARTICLE 3
RENT AND OTHER PAYMENTS......................................................................11
Section 3.1 Annual Fixed Rent.................................................11
Section 3.2 Real Estate Taxes.................................................11
Section 3.3 Operating Expenses................................................13
Section 3.4 Utility Charges...................................................17
Section 3.5 Above-standard Services...........................................17
Section 3.6 No Offsets........................................................17
ARTICLE 4
ALTERATIONS..................................................................................18
Section 4.1 Consent Required for Tenant's Alterations.........................18
Section 4.2 Ownership of Alterations..........................................19
Section 4.3 Construction Requirements for Alterations.........................20
Section 4.4 Payment for Tenant Alterations....................................21
ARTICLE 5
RESPONSIBILITY FOR CONDITION OF BUILDING AND PREMISES........................................21
Section 5.1 Maintenance of Building and Common Areas by Landlord..............21
Section 5.2 Maintenance of Premises by Tenant.................................21
Section 5.3 Tenant-Provided Services..........................................22
Section 5.4 Delays in Landlord's Services.....................................22
Section 5.5 Tenant's Responsibilities Regarding Hazardous Materials...........23
Section 5.6 Landlord's Responsibilities Regarding Hazardous Materials.........24
(i)
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Page
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Section 5.7 Cross Indemnification.....................................................24
ARTICLE 6
TENANT COVENANTS.....................................................................................24
Section 6.1 Permitted Uses............................................................24
Section 6.2 Laws and Regulations......................................................25
Section 6.3 Rules and Regulations; Signs..............................................25
Section 6.4 Safety Compliance.........................................................25
Section 6.5 Landlord's Entry..........................................................26
Section 6.6 Floor Load................................................................26
Section 6.7 Personal Property Tax.....................................................26
Section 6.8 Assignment and Subleases..................................................26
ARTICLE 7
INDEMNITY AND INSURANCE..............................................................................29
Section 7.1 Indemnity.................................................................29
Section 7.2 Liability Insurance.......................................................30
Section 7.3 Personal Property at Risk.................................................30
Section 7.4 Landlord's Insurance......................................................31
Section 7.5 Waiver of Subrogation.....................................................31
Section 7.6 Policy Requirements.......................................................31
ARTICLE 8
CASUALTY AND EMINENT DOMAIN..........................................................................32
Section 8.1 Restoration Following Casualties..........................................32
Section 8.2 Landlord's Termination Election...........................................32
Section 8.3 Tenant's Termination Elections............................................32
Section 8.4 Casualty at Expiration of Lease...........................................33
Section 8.5 Eminent Domain............................................................33
Section 8.6 Rent After Casualty or Taking.............................................34
Section 8.7 Temporary Taking..........................................................34
Section 8.8 Taking Award..............................................................34
Section 8.9 Casualty or Eminent Domain Affecting Parking Privileges...................34
ARTICLE 9
DEFAULT..............................................................................................36
Section 9.1 Tenant's Default..........................................................36
Section 9.2 Damages...................................................................36
Section 9.3 Cumulative Rights.........................................................37
Section 9.4 Landlord's Self-Help......................................................38
Section 9.5 Enforcement Expenses; Litigation..........................................38
Section 9.6 Late Charges; Interest on Overdue Payments................................38
Section 9.7 Landlord's Right to Notice and Cure; Tenant's Self-Help Rights............38
(ii)
<PAGE> 4
ARTICLE 10
MORTGAGEES' AND GROUND LESSORS' RIGHTS...........................................................................39
Section 10.1 Subordination.........................................................................39
Section 10.2 Prepayment of Rent not to Bind Mortgagee or Ground Lessor.............................39
Section 10.3 Tenant's Duty to Notify Mortgagee and Ground Lessor; Mortgagee's and Ground
Lessor's Ability to Cure..............................................................39
Section 10.4 Estoppel Certificates.................................................................40
Section 10.5 Subordination, Nondisturbance and Attornment Agreements...............................41
ARTICLE 11
SECURITY DEPOSIT.................................................................................................41
ARTICLE 12
MISCELLANEOUS....................................................................................................42
Section 12.1 Notice of Lease.......................................................................42
Section 12.2 Notices...............................................................................43
Section 12.3 Successors and Limitation on Liability................................................43
Section 12.4 Waivers...............................................................................43
Section 12.5 Acceptance of Partial Payments of Rent................................................43
Section 12.6 Interpretation and Partial Invalidity.................................................44
Section 12.7 Quiet Enjoyment.......................................................................44
Section 12.8 Brokerage.............................................................................44
Section 12.9 Surrender of Premises and Holding Over................................................44
Section 12.10 Ground Lease..........................................................................45
Section 12.11 Financial Reporting...................................................................45
Section 12.12 Cambridge Employment Plan.............................................................45
Section 12.13 Truck Delivery Routes; Traffic Mitigation Measures....................................45
Section 12.14 Parking and Transportation Demand Management..........................................46
Section 12.15 Laboratory Animals....................................................................46
Section 12.16 No Consequential Damages..............................................................46
Section 12.17 Governing Law.........................................................................46
EXHIBIT A - Basic Lease Terms
EXHIBIT B - Legal Description
EXHIBIT B-1 - Depiction of Premises
EXHIBIT B-2 - Map of University Park
EXHIBIT C - Work Letter
EXHIBIT D - Standard Services
EXHIBIT E - Rules and Regulations
EXHIBIT F - Intentionally Omitted
EXHIBIT G - Form of MIT Non-Disturbance Agreement
EXHIBIT H - Intentionally Omitted
(iii)
<PAGE> 5
EXHIBIT I - Expedited Dispute Resolution Procedure
(iv)
<PAGE> 6
LEASE
ARTICLE 1
RECITALS AND DEFINITIONS
Section 1.1 RECITALS. This Lease (this "Lease") is entered into this
26th day of October, 2000 by and between Forest City 64 Sidney Street, Inc. (the
"Landlord"), a Massachusetts corporation, and Alkermes, Inc. (the "Tenant"), a
Pennsylvania corporation.
In consideration of the mutual covenants herein set forth, the Landlord
and the Tenant do hereby agree to the terms and conditions set forth in this
Lease.
Section 1.2 DEFINITIONS. The following terms shall have the meanings
indicated or referred to below:
"Additional Rent" means all charges payable by the Tenant pursuant to
this Lease other than Annual Fixed Rent, including without implied limitation
the Tenant's parking charges as provided in Section 2.4; the Tenant's Tax
Expense Allocable to the Premises as provided in Section 3.2; the Tenant's
Operating Expenses Allocable to the Premises in accordance with Section 3.3;
amounts payable to Landlord for separately submetered utilities and services
pursuant to Section 3.4; amounts payable for special services pursuant to
Section 3.5; costs for alterations or additions to the Premises exceeding the
Tenant's Allowance (as described in the Work Letter); and the Landlord's share
of any sublease or assignment proceeds pursuant to Section 6.8.
"Annual Fixed Rent" - See EXHIBIT A, and Section 3.1.
"Base Building Improvements" - See the Work Letter.
"Building" means the building located at 64 Sidney Street, Cambridge,
Massachusetts.
"Commencement Date" - See Section 2.5.
"Common Areas" - see Section 2.2.
"Declaration of Covenants" means that certain Declaration of Covenants
dated as of December 15, 1997 made by Massachusetts Institute of Technology, as
declarant, recorded on March 12, 1998 in the Middlesex South Registry of Deeds
as Instrument No. 1065 and filed on March 12, 1998 in the Middlesex South
Registry District of the Land Court as Document No. 1058425.
"Default Interest Rate" - see Section 9.6.
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"88 Sidney Lease" means that certain lease, dated as of even date
herewith, between the Landlord and the Tenant, of the building in University
Park located at 88 Sidney Street, Cambridge, Massachusetts.
"88 Sidney Non-fruition Termination" - See Section 2.1(c).
"88 Sidney Rent Commencement Date" - See Section 2.1(b).
"Expedited Dispute Resolution Procedure" means the dispute resolution
procedure described in EXHIBIT I.
"Extension Term" - See Section 2.6.
"Excusable Delay" - See the Work Letter.
"External Causes" means, when referring to a party's responsibilities
under this Lease, collectively Acts of God, war, civil commotion, fire, flood or
other casualty, strikes or other extraordinary labor difficulties or shortages
of labor or materials or equipment in the ordinary course of trade,
extraordinary weather conditions, government order or regulations or other cause
not reasonably within the control of such party, and not due to the fault or
neglect of such party. In no event shall financial inability be deemed to be an
External Cause.
"Garage" - See EXHIBIT A.
"Initial Leasehold Improvements" means the initial alterations and
additions which Tenant is undertaking pursuant to the Work Letter.
"Initial Term" - See EXHIBIT A.
"Land" means the parcel of land situated in Cambridge, Massachusetts,
described in EXHIBIT B.
"Landlord's Original Address" - See EXHIBIT A.
"Lease Year" means each period of one year during the Term commencing
on the Commencement Date or on any anniversary thereof.
"Market Rate Parking Charge" means the monthly parking rate for
structured parking facilities charged from time to time by owners of parking
facilities of similar age and quality, providing similar convenience and
proximity to the work environment, and similar services and amenities, in the
geographical area in which the Garage is located. As of the date hereof, parking
facilities most similar to the Garage are the parking facilities of Cambridge
Center, Technology Square and One Kendall Square.
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"Parking Passes" - See EXHIBIT A.
"Permitted Uses" - See EXHIBIT A.
"Premises" means
(i) the entire rentable area of the fourth (plus the
acid neutralization room on the first floor) and fifth floors
of the Building, consisting of 27,083 rentable square feet on
the fourth floor (which includes the aforesaid first floor
space) and 26,148 rentable square feet on the fifth floor, for
an aggregate rentable area of 53,231 rentable square feet; and
(ii) the rentable area of Suite 300 on the third
floor of the Building, consisting of 4,335 rentable square
feet, and the rentable area of Suite 180 on the first floor,
consisting of 7,407 rentable square feet, for an aggregate
rentable area of 11,742 rentable square feet.
See EXHIBIT A and Sections 2.1 and 2.3.
"Property" means the Land and the Building.
"Removable Alterations" - See Section 4.2.
"Rules and Regulations" - See Section 6.3.
"Stub Period" means the period, if any, from May 1, 2012 until the
scheduled expiration date of the initial term of the 88 Sidney Lease.
"Substantial Completion" - See the Work Letter.
"Tenant's Original Address" - See EXHIBIT A.
"Term" means the Initial Term (plus any Stub Period added to the
Initial Term under Section 2.8) together with any Extension Term for which an
extension option is timely exercised by the Tenant under Section 2.6.
"Termination Date" - See EXHIBIT A.
"University Park" means the area in Cambridge, Massachusetts, bounded
on the North side by Massachusetts Avenue, Green and Blanche Streets, on the
East side by Landsdowne, Cross and Purrington Streets, on the South side by
Pacific Street and on the West side by Brookline Street, as shown on EXHIBIT
B-2.
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<PAGE> 9
"Work Letter" means the letter agreement of even date herewith between
the Landlord and Tenant relating to the construction of the leasehold
improvements in the Premises attached hereto and made a part hereof as EXHIBIT
C. The Work Letter is incorporated by reference and shall be deemed to be a part
of this Lease.
ARTICLE 2
PREMISES AND TERM
Section 2.1 PREMISES.
(a) The Landlord hereby leases to the Tenant, and the Tenant
hereby leases from the Landlord, for the Term, the Premises, which
shall be comprised of the space illustrated on EXHIBIT B-1, subject to
the exclusion hereinbelow set forth in this Section 2.1, Landlord's
reservations set forth in Section 2.3, such easements, covenants and
restrictions as may affect the Property and the terms and conditions of
this Lease. The Tenant acknowledges that, except as expressly set forth
in this Lease, there have been no representations or warranties made by
or on behalf of the Landlord with respect to the Premises, the Building
or the Property or with respect to the suitability of any of them for
the conduct of the Tenant's business. The Premises shall exclude the
entry and main lobby of the Building, first floor elevator lobby, first
floor mail room, the common stairways and stairwells, elevators and
elevator wells, boiler room, sprinklers, sprinkler rooms, elevator
rooms, mechanical rooms, loading and receiving areas, electric and
telephone closets, janitor closets, and pipes, ducts, conduits, wires
and appurtenant fixtures and equipment serving exclusively or in common
other parts of the Building. If the Premises at any time includes less
than the entire rentable floor area of any floor of the Building, the
Premises shall also exclude the common corridors, vestibules, elevator
lobby, toilets, janitor's closet, electrical and telephone closet, and
freight elevator vestibule located on such floor.
(b) The Tenant shall, on the thirtieth (30th) day following
the occurrence of the "Rent Commencement Date" under the 88 Sidney
Lease (the "88 Sidney Rent Commencement Date"), surrender a portion of
the Premises comprised of Suites 300 and 180 (the "Surrender Space")
upon the terms and conditions of Section 12.9 hereof, and thereupon the
Surrender Space shall be deleted from the Premises demised hereunder
except and to the extent thereafter reincorporated into the Premises in
accordance with Section 2.7 hereof. In the event of an 88 Sidney
Non-fruition Termination, the Tenant may not, and shall not, surrender
the Surrender Space until the expiration or earlier termination of this
Lease, except as otherwise expressly provided in Section 2.1(c) below.
(c) Notwithstanding anything to the contrary set forth in this
Lease, if the 88 Sidney Lease should be terminated, whether by the
Landlord or the Tenant, pursuant to either Section 2.7 of said 88
Sidney Lease or Article 16 of Exhibit C thereto ("88 Sidney
Non-fruition Termination"), then the Tenant shall have the option,
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exercisable by notice ("Expiration Acceleration Notice") given to the
Landlord within one hundred eighty (180) days of the date of the 88
Sidney Non-fruition Termination, to either (i) accelerate the
Termination Date of this Lease with respect to the entire Premises, to
the date specified in such Expiration Acceleration Notice, which may
not be sooner than twelve (12) months nor later than fifteen (15)
months following the date Expiration Acceleration Notice is so given or
(ii) accelerate the Termination Date of this Lease only with respect to
(x) Suite 300 and 180 only, (y) Suite 300 only or (z) Suite 180 only,
in which case the portion of the Premises so identified will be deleted
from the Premises on the date specified in such Expiration Acceleration
Notice, which may not be sooner than twelve (12) months nor later than
fifteen (15) months following the date the Expiration Acceleration
Notice is so given. The Tenant's failure to accelerate the Termination
Date of this Lease with respect to the entire Premises or just the
portions thereof hereinabove described, by the giving of Term
Expiration Acceleration Notice in accordance with this Section 2.1(c),
during the aforesaid one hundred eighty (180) day period, time being of
the essence without limitation of anything otherwise set forth in this
Lease, shall result in the waiver of the Tenant's right to so
accelerate the Termination Date, and this Lease shall remain in effect
with respect to the entire Premises (including without limitation any
portion of the Surrender Space not specified in the Expiration
Acceleration Notice) subject to the terms and conditions of this Lease
without giving effect to Section 2.1(b) and (c) hereof.
Section 2.2 APPURTENANT RIGHTS.
(a) The Tenant shall have, as appurtenant to the Premises, the
nonexclusive right to use in common with others, subject to the Rules and
Regulations, (i) the entry, vestibules and main lobby of the Building, first
floor mail room, the common stairways, elevators, elevator wells, boiler room,
elevator rooms, sprinkler rooms, mechanical rooms, the pipes, sprinklers, ducts,
conduits, wires and appurtenant fixtures and equipment serving the Premises in
common with others, (ii) common walkways and driveways situated upon the land
that are necessary or reasonably convenient for access to the Building, and all
other areas in and amenities of University Park as are made available generally
to the occupants of University Park or the general public, (iii) access to, and
use of in common with other tenants, loading area and freight elevator,
janitor's closet, and electrical and telephone closets, portions of the rooftop
Penthouse reserved for Tenant use, provided Tenant has equipment located
therein, subject to Rules and Regulations, as hereinafter defined in Exhibit E,
then in effect and (iv) if the Premises at any time include less than the entire
rentable floor area of any floor, the common toilets, corridors, vestibules,
bridges and appurtenant right to the Premises the right to use portions of the
roof of the Building, outside of the Base Building Penthouse on the roof, as
shall be reasonably designed by Landlord for location of Tenant equipment. All
Tenant's installations of equipment on the roof and any required interior and/or
exterior ducts shall be subject to Landlord's reasonable approval, and in no
event shall such installation exceed the live load, or the Base Building System
capacity as allocated to Tenant or University Park design guidelines all as
approved by Landlord and permitted under the appropriate building code such
approval not to be unreasonably withheld or delayed (collectively, the "Common
Areas").
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(b) The Tenant shall have, as appurtenant to the Premises, the
right to enjoy such easements of ingress and egress over other land within
University Park as may benefit the Property as more particularly contemplated
under the Declaration of Covenants.
(c) The Tenant shall have, as appurtenant to the Premises, the
parking rights set forth in Section 2.4.
Section 2.3 LANDLORD'S RESERVATIONS. The Landlord reserves the right
from time to time, without unreasonable interference with the Tenant's use to
alter or modify the Common Areas, provided that (i) the Landlord gives the
Tenant reasonable advance notice of the Landlord's contemplated alterations or
modifications, with respect to which the Tenant shall have reasonable approvals
rights, (ii) any such actions are effected in a good and workmanlike manner at
no additional cost to Tenant (other than improvements thereto the costs of which
are shared by tenants in University Park pursuant to the Declaration of
Covenants), and (iii) such alterations or modifications do not impair Tenant's
access to the Premises or its practical use and enjoyment thereof or of the
Common Areas.
Section 2.4 PARKING PASSES. The Landlord shall provide and the Tenant
shall pay for Parking Passes (as defined in EXHIBIT A) for use by the Tenant's
employees in accordance with EXHIBIT A. Charges for the Tenant's parking
privileges hereunder shall be determined in accordance with EXHIBIT A, shall
constitute Additional Rent and shall be payable monthly to the Landlord, during
the Term, from and after the Rent Commencement Date. The Tenant agrees that it
and all persons claiming by, through and under it, shall at all times abide by
the Rules and Regulations set forth on EXHIBIT E and any other rules and
regulations promulgated by the Landlord in accordance with Section 6.3, of which
the Tenant is given written notice, with respect to the use of the parking
facilities provided by the Landlord pursuant to this Lease. The Landlord
acknowledges that it is the Landlord's responsibility to assure that holders of
Parking Passes who fulfill the requirements of the Rules and Regulations are
able to park their motor vehicles in the designated parking facilities.
At the option of the Landlord, the Tenant shall enter into a separate
agreement, with the Landlord or a separate entity, or the Landlord may assign
the Landlord's rights and obligations with respect to such parking privileges to
a separate entity, upon the same terms and conditions contained in this Lease
(and cross-defaulted, both as to the Landlord's and Tenant's obligations, with
this Lease) for a period which shall have the same expiration date as the Term
and which, if this Lease provides for options on the part of the Tenant to
extend, shall be automatically extended upon the exercise of any of such
options.
Section 2.5 PRIOR LEASES SUPERSEDED; COMMENCEMENT DATE. The Tenant is
currently occupying the Premises pursuant to that certain lease, dated September
18, 1991, as amended by that certain First Amendment of Lease, dated September
1, 1992 and that certain Second Amendment to Lease, dated December 20, 1993
(collectively referred to as the "Original 64 Sidney Lease") and pursuant to
that certain lease dated March 16, 1990, by and between Forest City 64 Sidney
Street, Inc., as Landlord, and Enzytech, Inc., as Tenant, as amended by
6
<PAGE> 12
those certain letter agreements dated March 11, 1999, April 13, 1999 and
May 28, 1999, respectively, between the Landlord and the Tenant, as
successor to Enzytech (collectively, the "Former Enzytech Lease"), each of which
is terminated and superseded by this Lease. The Tenant acknowledges that, except
to the extent already paid, any amounts now due to the Landlord under the
aforesaid leases shall be immediately due and payable under this Lease and are
not affected by the termination of the aforesaid leases. In respect of the fifth
floor of the Building, which has been occupied by the Tenant since August 15,
2000 without a definitive rental rate with respect thereto having been
established, the Tenant shall pay the Landlord Annual Basic Rent with respect
thereto for the period from August 15, 2000 through the Commencement Date hereof
(less any amounts heretofore paid by the Tenant on account of basic rent
thereunder allocable to such period) at the rate of Thirty-Seven and 50/100
Dollars ($37.50) per rentable square foot of the fifth floor of the Building,
and shall be liable to the Landlord with respect to such space hereunder. The
"Commencement Date" of this Lease means the date hereof.
Section 2.6 EXTENSION OPTIONS. Provided that there has been no Event of
Default which is uncured and continuing on the part of the Tenant, and the
Tenant is, as of the date of exercise and as of the commencement date of each
Extension Term, actually occupying at least fifty percent (50%) of the Premises
for its own business purposes, the Tenant shall have the right to extend the
Term hereof for two (2) successive periods of ten (10) years each (each such
period an "Extension Term") on the following terms and conditions:
(a) Such right to extend the Term shall be exercised by the
giving of notice by Tenant to Landlord at least twelve (12) months
prior to the expiration of the Initial Term or the then current
Extension Term, as applicable (the "Extension Notice Deadline Date").
Upon the giving of such notice on or before the Extension Notice
Deadline Date, this Lease and the Term hereof shall be extended for an
additional term, as specified above, without the necessity for the
execution of any additional documents except a document memorializing
the Annual Fixed Rent for the Extension Term to be determined as set
forth below. Time shall be of the essence with respect to the Tenant's
giving notice to extend the Term on or before the Extension Notice
Deadline Date. In no event may the Tenant extend the Term under this
Section 2.6 for more than twenty (20) years after the expiration of the
Initial Term.
(b) Each Extension Term shall be upon all the terms,
conditions and provisions of this Lease, except the Annual Fixed Rent
payable during each Extension Term shall be the then Extension Fair
Rental Value of the Premises for such Extension Term, to be determined
under Section 2.6(d) or Section 2.6(e) below, but in no case less than
the Annual Fixed Rent that was applicable thereto immediately preceding
the Extension Term with respect to which the Extension Fair Rental
Value is to be established (the "Then Applicable Annual Fixed Rental
Rate"). For purposes of this Section 2.6, the "Extension Fair Rental
Value" of the Premises shall mean the then current fair market annual
rent, for leases of other space in Cambridge, Massachusetts similarly
improved, taking into account the condition to which such premises have
been
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<PAGE> 13
improved (including any replacements of existing improvements or
performance of maintenance obligations ("Replacements"), but excluding
any capital improvements to the Premises (i.e., other than
Replacements) that enhance the value thereof, provided the same are
made by the Tenant during the sixty (60) month period immediately
preceding the applicable Extension Notice Deadline Date), and the
economic terms and conditions specified in this Lease that will be
applicable thereto.
(c) If the Tenant makes a written request to the Landlord for
a proposal for the Extension Fair Rental Value for the upcoming
Extension Term ("Tenant's Extension Rental Request") on or before the
day two (2) months prior to the Extension Notice Deadline Date, then
the Landlord shall make such a written proposal ("Landlord's Proposal")
to the Tenant within fifteen (15) days after receipt of Tenant's
Extension Rental Request, but in no event shall the Landlord be
required to deliver such a proposal sooner than fifteen (15) months
prior to the scheduled commencement of such Extension Term. Following
delivery by the Landlord of Landlord's Proposal to the Tenant, the
parties will endeavor in good faith to reach agreement with respect to
the establishment of the Extension Fair Rental Value for the Extension
Term.
(d) Unless the parties have already mutually agreed upon such
Extension Fair Rental Value, on or before the day that is ten (10) days
prior to the applicable Extension Notice Deadline Date, the Landlord
and the Tenant shall deliver to each other their final Landlord's
Proposal (or any final change that the Landlord wishes to make to any
previously furnished Landlord's Proposal) and a written proposal from
the Tenant for the Extension Fair Rental Value of the Premises (the
"Tenant's Proposal"), as the case may be, and each of such Landlord's
Proposal and such Tenant's Proposal shall be binding on the Landlord
and the Tenant, respectively, for the purpose of conducting the
resolution procedure described in clause (e) below. Failure by the
Landlord or the Tenant to timely deliver a final Landlord's Proposal or
final Tenant's Proposal (time being of the essence), as the case may
be, shall result in the other party's proposal being deemed the
Extension Fair Rental Value, and failure by the Landlord or the Tenant
to timely make any final change to the then most recently delivered
Landlord's Proposal or Tenant's Proposal, as the case may be, shall
render no longer subject to change the last previously delivered
Landlord's Proposal or Tenant's Proposal, as the case may be, which
shall thereupon become final.
(e) If the Tenant exercises its election to extend the Term
under clause (a) above, without the Extension Fair Rental Value of the
Premises having been established by mutual agreement of the parties as
contemplated under clause (c) above, then unless a final Landlord's
Proposal and a final Tenant's Proposal has been established under
clause (d) above, the Landlord shall furnish a final Landlord's
Proposal to the Tenant, and the Tenant shall furnish a final Tenant's
Proposal to the Landlord, within thirty (30) days of the Tenant's
having exercised its election to extend the Term. Within thirty (30)
days after the later to occur of (x) the Tenant's exercise of its
election to extend the Term or (y) the establishment of a final
Landlord's Proposal and a final Tenant's Proposal in
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accordance with this clause (e), unless the parties have mutually
agreed upon the identity of a real estate professional ("Arbiter") with
at least ten (10) years continuous experience in the business of
appraising or marketing similar commercial real estate in the
Cambridge, Massachusetts area who has agreed to serve as hereinafter
provided (the "Deciding Arbiter"), the Landlord and the Tenant shall
each appoint an Arbiter who shall, within thirty (30) days of
selection, select a third Arbiter to serve as the Deciding Arbiter. The
Deciding Arbiter shall select either Landlord's Proposal or Tenant's
Proposal as the proposal most accurately stating the Extension Fair
Rental Value of the Premises. If the two Arbiters respectively selected
by the parties (the "Party Selected Arbiters") cannot agree upon the
selection of a Deciding Arbiter, then such two Party Selected Arbiters
shall seek the selection of the Deciding Arbiter by the Greater Boston
Real Estate Board. The Deciding Arbiter shall give notice of his or her
selection to the Landlord and the Tenant and its selection of either
Landlord's Proposal or Tenant's Proposal shall be final and binding
upon the Landlord and the Tenant. Each party shall pay the fees and
expenses of its real estate professional counsel and any Party Selected
Arbiter that such party selects, if any, in connection with any
proceeding under this paragraph, and one-half of the fees and expenses
of the Deciding Arbiter. In the event that the commencement of the
Extension Term occurs prior to a final determination of the Extension
Fair Rental Value therefor (the "Extension Rent Determination Date"),
then the Tenant shall pay the Annual Fixed Rent in effect immediately
preceding the commencement of such Extension Term. If the Annual Fixed
Rent for the Extension Term is determined to be greater than the Annual
Fixed Rent paid with respect to the Premises prior to the Extension
Rent Determination Date, then the Tenant shall pay to the Landlord the
amount of such underpayment within thirty (30) days of the Expansion
Rent Determination Date.
Section 2.7 EXPANSION RIGHTS. Provided that there has been no Event of
Default which is uncured and continuing on the part of the Tenant, other than
any which have been waived by the Landlord and the Tenant, as of the date of
exercise of its rights under this Section 2.7, and the Tenant is in occupancy of
at least sixty percent (60%) of the Premises for its own business purposes, the
Tenant shall have the Right of First Opportunity (as hereinafter defined) to
lease the following spaces: (A) approximately 50,000 rentable square feet on
floors one, two and three ("Expansion Area 1") as shown on EXHIBIT B-1 as Suites
330, 200 and 150; (B) approximately 5,388 rentable square feet on the first
floor ("Expansion Area 2") as shown on EXHIBIT B-1 as Suite 100; and (C)
approximately 7,407 rentable square feet on the first floor ("Expansion Area 3")
as shown on EXHIBIT B-1 as Suite 180. Notwithstanding the foregoing, if at any
time during the Term of this Lease, the Tenant shall lease Expansion Area 1 in
accordance with this Section 2.7, the Tenant shall thereafter have the Right of
First Opportunity to lease any tenantable space in the Building which thereafter
may become available, subject to the other terms and conditions of this Section
2.7.
With respect to each of Expansion Area 1, Expansion Area 2 and
Expansion Area 3, following the expiration or earlier termination of the term of
the lease for such space in effect as of the date of this Lease ("Existing Third
Party Lease"), as the term of such Third Party Lease
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may have been or hereafter is extended, Tenant shall have the Right of First
Opportunity to lease the pertinent space as set forth below. Notwithstanding the
foregoing, the "Existing Third Party Lease" for Expansion Area 3 shall be the
new lease entered into by Landlord with a tenant thereof after Tenant has
vacated such space as contemplated by Section 2.1(b). If Tenant shall fail to
timely exercise its rights and thereafter lease any space in the Building to
which it has the Right of First Opportunity, then the lease or leases thereafter
entered into by the Landlord for such spaces shall be deemed the Existing Third
Party Lease with respect thereto.
For purposes of this Section 2.7, the "Right of First Opportunity"
shall mean the Tenant's right, subordinate to the Landlord's right to negotiate
with the then existing tenant or other occupant of the space in question and
permit such tenant or occupant to continue in occupancy (notwithstanding that
such tenant or occupant may not have the right to extend the term of the
applicable Existing Third Party Lease for such space), to negotiate with
Landlord to lease the space in accordance with this Section 2.7. From time to
time during the Term of this Lease, the Landlord shall give written notice to
the Tenant ("Landlord's First Opportunity Notice") describing such space, the
date of its expected availability and the terms and conditions on which the
Landlord is interested in leasing such space, taking into account the then
current market conditions. The Tenant shall accept or decline Landlord's First
Opportunity Notice in writing, on or before the date which is ten (10) business
days after the date of Landlord's First Opportunity Notice. If the Tenant fails
to respond within such time period, or if the Tenant declines the Landlord's
offer, the Landlord shall thereafter be free to lease such space to any party on
such terms as the Landlord shall choose in the Landlord's discretion, and the
Tenant shall have no further rights to lease such space hereunder until the
space thereafter becomes available following its leasing by the Landlord, any
such lease becoming the Existing Third Party Lease with respect thereto. If the
Tenant shall accept Landlord's First Opportunity Notice, or if the Tenant shall
make a counterproposal within the foregoing ten (10) business day time period,
the Landlord agrees to negotiate in good faith with the Tenant with respect to
leasing of such space by the Tenant during the period ending fifteen (15) days
after the giving of such notice by the Tenant. If the parties cannot agree on
the Annual Fixed Rent or any other material economic terms associated with a
lease of such space within such 15 day period, but prior to the expiration of
such 15-day period the Tenant gives the Landlord notice that the Tenant commits
to lease the space in question (the "Expansion Space"), upon all of the terms
and conditions of the Landlord's last offer but for the calculation of Annual
Fixed Rent, then the Annual Fixed Rent for such Expansion Space shall be
determined in accordance with Section 2.6 above, except that the Annual Fixed
Rent shall equal the "Expansion Fair Rental Value" as defined hereinbelow, and
the Tenant shall be bound to lease such space on the terms and conditions
established under this Section 2.7.
For purposes of this Section 2.7, the "Expansion Fair Rental Value" of
Expansion Space shall mean the then current fair market annual rent for leases
of space improved to the same level as the Premises and taking into account the
condition to which such premises have been improved (excluding Removable
Alterations) and the economic terms and conditions specified in this Lease that
will be applicable thereto (e.g. the amount of the fit-up allowance and the
absence of any rent-free period for construction of leasehold improvements),
determined as provided
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below in this Section 2.7. If the Expansion Fair Rental Value of such Expansion
Space is not agreed upon by the Landlord and the Tenant within the 15-day period
referred to in the grammatical paragraph immediately above (the "Rental
Determination Commencement Date"), then each of the Landlord and the Tenant
shall retain a real estate professional with at least ten (10) years continuous
experience in the business of appraising or marketing similar commercial real
estate in the Cambridge, Massachusetts area who shall, within thirty (30) days
of his or her selection, prepare a written report summarizing his or her
conclusion as to the Expansion Fair Rental Value. The Landlord and the Tenant
shall simultaneously exchange such reports; provided, however, if either party
has not obtained such a report within ninety (90) days after the Rental
Determination Commencement Date, then the determination set forth in the other
party's report shall be final and binding upon the parties. If both parties
receive reports within such time and the lower determination is within ten
percent (10%) of the higher determination, then the average of these
determinations shall be deemed to be the Expansion Fair Rental Value for such
Expansion Space. If these determinations differ by more than ten percent (10%),
then the Landlord and the Tenant shall mutually select a person with the
qualifications stated above (the "Final Professional") to resolve the dispute as
to the Expansion Fair Rental Value for such Expansion Space. If the Landlord and
the Tenant cannot agree upon the designation of the Final Professional within
thirty (30) days of the exchange of the first valuation reports, either party
may apply to the American Arbitration Association, the Greater Boston Real
Estate Board, or any successor thereto, for the designation of a Final
Professional. Within ten (10) days of the selection of the Final Professional,
the Landlord and the Tenant shall each submit to the Final Professional a copy
of their respective real estate professional's determination of the Expansion
Fair Rental Value for such Space. The Final Professional shall not perform his
or her own valuation, but rather shall, within thirty (30) days after such
submissions, select the submission which is closest to the determination of the
Expansion Fair Rental Value for such Expansion Space which the Final
Professional would have made acting alone. The Final Professional shall give
notice of his or her selection to the Landlord and the Tenant and such decision
shall be final and binding upon the Landlord and the Tenant. Each party shall
pay the fees and expenses of its real estate professional and counsel, if any,
in connection with any proceeding under this paragraph, and one-half of the fees
and expenses of the Final Professional. In the event that the Tenant commences
occupancy of any Expansion Space prior to a final determination of the Expansion
Fair Rental Value therefor (the "Expansion Rent Determination Date"), then the
Tenant shall pay the Annual Fixed Rent at the rate specified in the Landlord's
written report of the Expansion Fair Rental Value until the Expansion Fair
Rental Value is established. If the Expansion Fair Rental Value is determined to
be greater than the Annual Fixed Rent paid with respect to the Expansion Space
prior to the Expansion Rent Determination Date, then the Tenant shall pay to the
Landlord the amount of such underpayment within ten (10) days of the Expansion
Rent Determination Date, and if the Expansion Fair Rental Value is determined to
be less than the Annual Fixed Rent paid with respect to the Expansion Space
prior to the Expansion Rent Determination Date, then the Landlord shall credit
the amount of such overpayment against the monthly installments of Annual Fixed
Rent thereafter coming due.
Section 2.8 STUB PERIOD. The Landlord agrees that, if the scheduled
expiration date of the initial term of the 88 Sidney Lease should, pursuant to
the terms and conditions thereof, be
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established as a date later than April 30, 2012, the Landlord shall, upon the
Tenant's request, agree to the extension of the Initial Term to include the Stub
Period, and a confirmatory amendment to this Lease shall be entered into by the
parties to memorialize the same at the time the parties confirm the commencement
and expiration dates of the 88 Sidney Lease.
ARTICLE 3
RENT AND OTHER PAYMENTS
Section 3.1 ANNUAL FIXED RENT. From and after the Commencement Date,
the Tenant shall pay, without notice or demand, monthly installments of
one-twelfth (1/12) of the Annual Fixed Rent in effect and applicable to the
Premises in advance for each full calendar month of the Term following the
Commencement Date and of the corresponding fraction of said one-twelfth (1/12)
for any fraction of a calendar month at the Commencement Date. The Annual Fixed
Rent applicable to the Premises during the Initial Term shall be as set forth in
EXHIBIT A.
Section 3.2 REAL ESTATE TAXES. From and after the Commencement Date,
during the Term, the Tenant shall pay to the Landlord, as Additional Rent, the
Tenant's Tax Expenses Allocable to the Premises (as such term is hereinafter
defined) in accordance with this Section 3.2. The terms used in this Section 3.2
are defined as follows:
(a) "Tax Fiscal Year" means the 12-month period beginning July
1 each year, or such other fiscal period in respect of which real
estate taxes are due and payable to the appropriate governmental taxing
authority.
(b) "The Tenant's Tax Expense Allocable to the Premises" means
(i) that portion of the Landlord's Tax Expenses for a Tax Year which
bears the same proportion thereto as the Rentable Floor Area of the
Premises (from time to time) bears to the Total Rentable Floor Area of
the Building and (ii) in the event that the Premises are improved to a
standard which is higher than other portions of the Property, such
portion of the Real Estate Taxes on the Property with respect to any
Tax Year as is appropriate so that the Tenant bears the portion of the
Real Estate Taxes which are properly allocable to the Premises, as
reasonably determined by Landlord based on information with respect to
the assessment process made available by the assessing authorities.
(c) "The Landlord's Tax Expenses" with respect to any Tax
Fiscal Year means the aggregate Real Estate Taxes on the Property with
respect to that Tax Fiscal Year, reduced by any abatement receipts with
respect to that Tax Fiscal Year.
(d) "Real Estate Taxes" means (i) all taxes and special
assessments of every kind and nature assessed by any governmental
authority on the Property; (ii) reasonable expenses incurred in
connection with negotiating with the city assessor's office, in advance
of the establishment of the assessed valuation of the Property, to
establish a
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mutually agreeable assessment therefor; and (iii) reasonable
expenses incurred in connection with any proceedings for abatement
of such taxes or special assessments. Any special assessments
to be included within the definition of "Real Estate Taxes" shall be
limited to the amount of the installment (plus any interest thereon) of
such special tax or special assessment (which shall be payable over the
longest period permitted by law) required to be paid during the Tax
Fiscal Year in respect of which such taxes are being determined. There
shall be excluded from such taxes all income, estate, succession,
inheritance, excess profit, franchise and transfer taxes, all so-called
linkage payments and delinquency interest or penalties; 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 the Landlord a capital levy or other tax on the
gross rents received with respect to the Property, or a federal, state,
county, municipal or other local income, franchise, excise or similar
tax, assessment, levy or charge (distinct from any now in effect)
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 based,
shall be deemed to be included within the term "Real Estate Taxes,"
based on the Building being the Landlord's only property. Landlord
hereby agrees that it will cause the Land to constitute a separate
parcel with respect to the assessment of Real Estate Taxes.
Payments by the Tenant on account of the Tenant's Tax Expense Allocable
to the Premises shall be made monthly at the time and in the fashion herein
provided for the payment of Annual Fixed Rent and shall be in an amount of the
greater of (i) one-twelfth (1/12) of the Tenant's Tax Expense Allocable to the
Premises for the current Tax Fiscal Year as reasonably estimated by the
Landlord, or (ii) an amount reasonably estimated by any ground lessor of the
Land or holder of a first mortgage on the Property, to be sufficient, if paid
monthly, to pay the Tenant's Tax Expense Allocable to the Premises on the dates
due to the taxing authority.
Not later than one hundred twenty (120) days after the Tenant's Tax
Expense Allocable to the Premises are determinable for the first Tax Fiscal Year
of the Term or fraction thereof and for each succeeding Tax Fiscal Year or
fraction thereof during the Term, the Landlord shall render the Tenant a
statement in reasonable detail showing for the preceding year or fraction
thereof, as the case may be, real estate taxes on the Property, and any
abatements or refunds of such taxes, together with a copy of the tax bill for
the Tax Fiscal Year in question. Reasonable expenses incurred in obtaining any
tax abatement or refund not previously charged may be charged against such tax
abatement or refund before the adjustments are made for the Tax Fiscal Year. If
at the time such statement is rendered it is determined with respect to any Tax
Fiscal Year, that the Tenant has paid (i) less than the Tenant's Tax Expense
Allocable to the Premises or (ii) more than the Tenant's Tax Expense Allocable
to the Premises, then, in the case of (i) the Tenant shall pay to the Landlord,
as Additional Rent, within thirty (30) days of such statement the amount of such
underpayment and, in the case of (ii) the Landlord shall credit the amount of
such overpayment against the monthly installments of the Tenant's Tax Expense
Allocable to the Premises next thereafter coming due (or refund such overpayment
within thirty (30) days if the Term has expired to the extent that such
overpayment exceeds any amount then due from the
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Tenant to the Landlord). To the extent that real estate taxes shall be payable
to the taxing authority in installments with respect to periods less than a Tax
Fiscal Year, the statement to be furnished by the Landlord shall be rendered and
payments made on account of such installments. If the Commencement Date occurs
on other than the first day of a Tax Fiscal Year, or if the Termination Date
occurs on other than the last day of a Tax Fiscal Year, then the amount of
Tenant's Tax Expense Allocable to the Premises payable by the Tenant with
respect to such Tax Fiscal Year(s) shall be pro-rated based upon the ratio of
the length of the time period during such Tax Fiscal Year(s) in respect of which
the Tenant has an obligation to pay Tenant's Tax Expense Allocable to the
Premises to the length of such Tax Fiscal Year(s).
At the reasonable request of the Tenant, the Landlord shall use
reasonable efforts to contest or seek abatement of any Real Estate Taxes
affecting the Premises. Should the Landlord contest or seek abatement of such
taxes, then it shall do so with diligence and shall keep the Tenant
appropriately informed, in the Landlord's reasonable discretion, as to such
action. If there shall be any dispute between the Landlord and the Tenant
regarding whether or not the Landlord is being reasonable in electing not to
contest or seek abatement of any Real Estate Taxes that the Tenant desires be
contested or with respect to which the Tenant desires to seek abatement, such
dispute shall, at the election of either the Landlord or the Tenant, be resolved
by the Expedited Dispute Resolution Procedure.
Section 3.3 OPERATING EXPENSES. From and after the Commencement Date,
during the Term, the Tenant shall pay to the Landlord, as Additional Rent, the
Tenant's Operating Expenses Allocable to the Premises, in accordance with this
Section 3.3 including, without limitation, the conditions and limitations set
forth in clauses (a) through (k) below, with respect to each 12-month period
beginning February 1 each year or such other fiscal period of twelve (12)
consecutive months hereinafter adopted by the Landlord for lease administration
purposes ("Operating Fiscal Year"). "The Tenant's Operating Expenses Allocable
to the Premises" means that portion of the Operating Expenses for the Property
which bears the same proportion thereto as the Rentable Floor Area of the
Premises bears to the Total Rentable Floor Area of the Building. The term
"Operating Expenses for the Property" means the Landlord's actual cost of
operating, cleaning, maintaining and repairing the Property, the roads,
driveways and walkways for providing access to the Building, and shall include
without limitation, the cost of fulfilling the maintenance and repair
obligations required to be performed by Landlord under Section 5.1 and, subject
to the exclusions set forth below, the cost of services specified on EXHIBIT D;
premiums for insurance carried pursuant to Section 7.4; the amount of any
deductible associated with an insurance claim of the Landlord; compensation
including, without limitation, fringe benefits, worker's compensation insurance
premiums and payroll taxes paid to, for or with respect to all persons
(University Park/Building general manager and below) engaged in the operating,
maintaining or cleaning of the Property; interior landscaping and maintenance;
steam, water, sewer, gas, oil electricity, telephone and other utility charges
(excluding any such utility charges either separately metered or separately
chargeable to the Tenant for either measured or additional or special services);
cost of providing HVAC services other than such services described in Section
3.4; cost of building and cleaning supplies; the costs of routine environmental
management programs operated by Landlord; market rental costs (or alternatively
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the Amortization Charge-off [as hereinafter defined] so long as the expenses
which are the subject of such Amortization Charge-off would have been permitted
Operating Expenses had the item in question been purchased) with respect to
equipment used in the operating, cleaning, maintaining or repairing of the
Property; cost of cleaning; cost of maintenance, and non-capital repairs and
replacements; cost of snow removal; cost of landscape maintenance; security
services; payments under service contracts with independent contractors;
management fees at reasonable rates consistent with comparable single-tenant or
multi-tenant buildings, as applicable, in the Cambridge market with the type of
occupancy and services rendered (the parties agree that for the first Lease
Year, this shall equal $0.85 per rentable square foot, and shall be subject to
reasonable adjustments during subsequent Lease Years); the cost of any capital
repairs, replacements or improvements: (i) required by any law or regulation
enacted or promulgated after the issuance of a building permit for the
construction of the Building, (ii) which is required in order to maintain the
Property in the condition it is required to be kept and maintained under Section
5.1, (iii) which reduces the Operating Expenses for the Property, or (iv) which
improves the management and operation of the Property in a manner reasonably
acceptable to Tenant (all such capital costs to be amortized on a straight-line
basis in accordance with generally accepted accounting principles, together with
interest on the unamortized balance at such rate as may have been paid by the
Landlord on funds borrowed for the purpose of making such capital repairs,
replacements or improvements (or if the Landlord did not borrow such funds, then
at the base lending rate announced by a major commercial bank designated by the
Landlord), with only the annual amortization amount ("Amortization Charge-off")
being included in Operating Expenses with respect to any Operating Fiscal Year);
charges equitably and reasonably allocated to the Building for the operating,
cleaning, maintaining, securing and repairing of the Common Areas excluding the
initial capital improvement costs associated with initially establishing the
Common Areas; and all other reasonable and necessary (in the Landlord's
reasonable judgment) expenses paid in connection with the operation, cleaning,
maintenance and repair of the Property.
Operating Expenses for the Property shall not include the following:
(a) any cost or expense to the extent to which Landlord is paid or
reimbursed, or which is reimbursable to the Landlord, from the Tenant
or a third party (other than as a payment for Operating Expenses),
including but not necessarily limited to: (1) work or service performed
for Tenant at its cost and (2) the cost of any item for which the
Landlord is paid or reimbursed, or which is reimbursable, by insurance,
warranties, service contracts, condemnation proceeds, insurance
reimbursements or otherwise;
(b) salaries and bonuses of officers or executives of Landlord or
administrative employees above the grade of University Park/Building
general manager, and if personnel below such grades are shared with
other buildings or have other duties not related to the Building, only
the allocable portion of such person or persons salary shall be
included in Operating Expenses;
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(c) interest on debt or principal amortization payments (except as
expressly otherwise provided) or any other payments on any mortgage or
any payments under any ground lease;
(d) any fees, costs, and commissions incurred in procuring or attempting to
procure other tenants including, but not necessarily limited to
brokerage commissions, finders fees, attorneys' fees and expenses,
entertainment costs and travel expenses;
(e) any cost included in Operating Expenses representing an amount paid to
a person, firm, corporation or other entity related to Landlord which
is in excess of the amount which would have been paid on an
arms'-length basis in the absence of such relationship (provided that
nothing herein shall be construed as requiring that the cost in
question equal the lowest possible cost; only that the cost not be
inflated solely due to the absence of an arms'-length relationship);
(f) any cost or expense which is applicable to or incurred for any parking
garage or parking lots, or any costs of personnel used to park cars,
collect money or provide special security, and garage management fees;
(g) depreciation of the Building or any part thereof;
(h) replacement or contingency reserves;
(i) legal, auditing, consulting and professional fees and other costs
(other than those legal, auditing, consulting and professional fees and
other costs incurred in connection with the normal and routine
maintenance and operation of the Building), including, without
limitation, those: (i) paid or incurred in connection with financings,
refinancings or sales of any Landlord's interest in the Building or
University Park, (ii) relating to specific disputes with tenants, and
(iii) relating to any special reporting required by securities laws;
(j) penalty interest, late charges, penalties and similar charges
associated with any failure by the Landlord and fulfill its obligations
under this Lease;
(k) bad debt loss or rent loss; and
(l) any cost incurred primarily as a consequence of the Landlord's
negligence or willful misconduct.
Any costs related to the Common Areas shall, for the purposes of
determining Operating Expenses for the Property, be allocated to the Building
based upon the methodology set forth in the Declaration of Covenants.
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Payments by the Tenant for its share of the Tenant's Operating Expenses
Allocable to the Premises shall be made monthly at the time and in the fashion
herein provided for the payment of Annual Fixed Rent. The amount so to be paid
to the Landlord shall be an amount from time to time reasonably estimated by the
Landlord to be sufficient to aggregate a sum equal to the Tenant's share of the
Tenant's Operating Expenses Allocable to the Premises for each Operating Fiscal
Year.
Not later than one hundred twenty (120) days after the end of each
Operating Fiscal Year or fraction thereof during the Term or fraction thereof at
the end of the Term, the Landlord shall render the Tenant a statement in
reasonable detail and according to usual accounting practices certified by an
officer of the Landlord, showing for the preceding Operating Fiscal Year or
fraction thereof, as the case may be, the Operating Expenses for the Property
and Tenant's Operating Expenses Allocable to the Premises. Said statement to be
rendered to the Tenant also shall show for the preceding Operating Fiscal Year
or fraction thereof, as the case may be, the amounts of Operating Expenses
already paid by the Tenant. If at the time such statement is rendered it is
determined with respect to any Operating Fiscal Year, that the Tenant has paid
(i) less than the entirety of the Tenant's Operating Expenses Allocable to the
Premises or (ii) more than the Tenant's Operating Expenses Allocable to the
Premises, then, in the case of (i) the Tenant shall pay to the Landlord, as
Additional Rent, within thirty (30) days of such statement the amounts of such
underpayment and, in the case of (ii) the Landlord shall credit the amount of
such overpayment against the monthly installments of the Tenant's Operating
Expenses Allocable to the Premises next thereafter coming due (or refund such
overpayment within thirty (30) days if the Term has expired to the extent that
such overpayment exceeds any amount then due from the Tenant to the Landlord).
If the Commencement Date occurs on other than the first day of an Operating
Fiscal Year, or if the Termination Date occurs on other than the last day of an
Operating Fiscal Year, then the amount of Tenant's Operating Expenses Allocable
to the Premises payable by the Tenant with respect to such Operating Fiscal
Year(s) shall be pro-rated based upon the ratio of the length of the time period
during such Operating Fiscal Year(s) in respect of which the Tenant has an
obligation to pay Tenant's Operating Expenses Allocable to the Premises to the
length of such Operating Fiscal Year.
The Tenant may examine or audit the accounts and original bills for
Operating Expenses for the Property upon ten (10) days' prior written notice to
the Landlord, but no more often than one (1) time in any Operating Fiscal Year;
provided however, that if, during the course of any such examination or audit,
the Tenant reasonably believes that it has discovered an error in the amount of
Operating Expenses for the Property, the Tenant may review the accounts and
bills for the immediately two (2) preceding Operating Fiscal Years relating to
the subject matter of such error. The Landlord agrees that it will make
available to the Tenant in the Landlord's office in University Park, during
regular business hours, such information as the Landlord has available at such
office. In similar manner, the Tenant may examine such further records as the
Landlord (or its affiliates) may have, but such matters will be conducted where
the Landlord customarily keeps such records, which may be at the headquarters of
the Landlord's parent company. The Tenant shall bear the cost of any such audit,
unless the same discloses a discrepancy in excess of three percent (3%) of the
Tenant's Operating Expenses Allocable to the Premises, in which event
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the Landlord shall reimburse the Tenant for such costs reasonably incurred. For
any given Operating Fiscal Year of the Landlord, the Tenant must, except in
connection with errors discovered during the course of an examination, as
provided above, make any such audit within twenty four (24) months after the
Tenant's receipt of itemized statements (and any supporting documentation
requested by the Tenant) referred to in the preceding paragraph. The Tenant
must, except in connection with errors discovered during the course of an
examination, as provided above, further make any claim for revision of Tenant's
Operating Expenses Allocable to the Premises for such Operating Fiscal Year by
written notice to the Landlord within said twenty four (24) month period. If the
Tenant and the Landlord determine that Tenant's Operating Expenses Allocable to
the Premises are more or less than reported, either the Landlord shall provide
the Tenant with a refund or a credit against the next installment of Annual
Fixed Rent and other charges or the Tenant shall pay the Landlord the amount of
any underpayment within thirty (30) days of billing, provided that if the refund
or credit to which the Tenant is entitled relates to an error in Landlord's
statement of Tenant's Operating Expenses Allocable to the Premises which
overstates the Tenant's Operating Expenses Allocable to the Premises by more
than three percent (3%), then interest at the Default Interest Rate accrue on
any such discrepancy from the date of overpayment by the Tenant to the date the
Tenant is credited or reimbursed in full therefor. The Landlord shall have no
right to give the Tenant any adjustment billing on account of Tenant's Operating
Expenses Allocable to the Premises incurred in any Operating Fiscal Year later
than the date two (2) years after the expiration of such Operating Fiscal Year.
Section 3.4 UTILITY CHARGES. During the Term, the Tenant shall pay
directly to the provider of the service, all charges for steam, gas,
electricity, fuel, water, sewer and other services and utilities furnished to
the Premises and separately metered.
Section 3.5 ABOVE-STANDARD SERVICES. If the Tenant requests and the
Landlord elects to provide any services to the Tenant in addition to those
described in EXHIBIT D, the Tenant shall pay to the Landlord, as Additional
Rent, the amount billed by Landlord for such services at Landlord's standard
rates as from time to time in effect, so long as such rates are consistent with
comparable services in comparable buildings within the Cambridge market. If the
Tenant has requested that such services be provided on a regular basis, the
Tenant shall, if requested by the Landlord, pay for such services at their
actual cost to Landlord, including, without limitation, a reasonable overhead
component, at the time and in the fashion in which Annual Fixed Rent under this
Lease is payable. Otherwise, the Tenant shall pay for such additional services
within thirty (30) days after receipt of an invoice from the Landlord.
Section 3.6 NO OFFSETS. Annual Fixed Rent and Additional Rent shall be
paid by the Tenant without offset, abatement or deduction except as provided
herein.
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ARTICLE 4
ALTERATIONS
Section 4.1 CONSENT REQUIRED FOR TENANT'S ALTERATIONS. The Tenant shall
not make alterations or additions to the Premises except in accordance with the
Tenant Design and Construction Manual, and with plans and specifications
therefor first approved by the Landlord, which approval shall not be withheld
unreasonably, conditioned or delayed. Notwithstanding the foregoing, the Tenant
may, from time to time without the Landlord's prior consent and at the Tenant's
own expense, make interior non-structural alterations and changes in and to the
Premises, provided that such alterations or changes (i) do not diminish the
value of the Building, (ii) are not incompatible with existing mechanical or
electrical, plumbing, HVAC or other systems in the Building, and (iii) do not
affect the exterior appearance of the Building. Whether or not the Tenant's
changes and/or alterations require the Landlord's consent pursuant to this
paragraph, the Tenant shall, in each instance, give reasonable prior notice to
the Landlord of any alterations and changes in and to the Premises costing
$50,000.00 or more which the Tenant intends to undertake, together with a
reasonable description of the proposed work and such plans and specifications,
if any, as the Tenant has therefor and promptly following the performance of any
alterations or additions to the Premises, the Tenant shall furnish Landlord an
"as-built" set of plans and specifications for the Premises, modified
mechanical, electrical or plumbing work, specifying the alterations or additions
in question, in each case in a fashion reasonably required by the Landlord, in
addition to any other plans and specifications furnished by Tenant to Landlord
from time to time. The Landlord shall not be deemed unreasonable for withholding
approval of any alterations or additions which (i) would, in the Landlord's
reasonable judgment, adversely affect any structural or exterior element of the
Building, (ii) would in the Landlord's reasonable judgment, adversely affect the
general utility of the Building for use by prospective future tenants thereof,
(iii) would affect the exterior appearance of the Building in a manner which is
not acceptable to the Landlord, in its sole discretion, (iv) will require
unusual expense to readapt the Premises to normal use as a biotechnology office
and research and development facility unless the Tenant first gives assurance
acceptable to the Landlord that such readaptation will be made prior to such
termination without expense to the Landlord; or (v) would not be compatible with
existing mechanical or electrical, plumbing, HVAC or other systems in the
Building, in each case, as reasonably determined by the Landlord; provided,
however, that the Landlord shall specify in any notice withholding approval
specifying, in reasonable detail, the nature of the Landlord's objection, and if
the Tenant shall, at its sole cost and expense, cure the Landlord's objections
(in the Landlord's reasonable judgment except in the case of the subject matter
of clause (iii) above), then the Landlord shall not withhold its approval. If
the Tenant shall request the Landlord's approval of proposed alterations under
this Section 4.1, and the Landlord fails to respond to the Tenant's request
within ten (10) business days thereof, then the Landlord shall be deemed to have
given its approval thereto if Landlord fails to respond to the Tenant's request
within five (5) business days following the delivery to the Landlord of a
written reminder notice, given by the Tenant on or following the expiration of
the aforementioned 10-day period, which reminder notice states the "deemed
approval" consequences of failure to respond. Neither the Landlord's failure to
object to any proposed alterations or additions, nor the
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Landlord's approval of any plans and specifications furnished by Tenant to
Landlord, shall be construed as superseding in any respect, or as a waiver of
Landlord's right to enforce, the Tenant's obligation to fulfill all of the terms
and conditions of this Lease applicable to any work contemplated thereby.
Notwithstanding anything to the contrary contained in this Section 4.1,
if any of the Tenant's proposed alterations and/or additions affect the roof or
the envelope of the Building, the following additional conditions shall apply:
(a) Such alterations and changes will not in any way interfere
with the proper functioning of and Landlord's access to equipment
located on the roof of the Building; and
(b) Adequate measures are taken to screen and otherwise reduce
the visibility and noise of such mechanical equipment, antennae and
dishes consistent with the appearance and design scheme required by the
City of Cambridge and other structures in University Park.
Section 4.2 OWNERSHIP OF ALTERATIONS. All alterations and additions
shall be part of the Building and owned by the Landlord; provided, however, that
the Landlord may require removal by the Tenant of all or any portion of any
alterations and additions made to the Premises, so long as the Landlord advised
the Tenant of such requirement prior to the installation of the alteration or
addition by the Tenant. If the Tenant fails to inform the Landlord, in writing,
at least ten (10) days prior to the installation of the alteration or addition,
thereby preventing the Landlord from making a determination as to whether it
will want such addition or alteration removed from the Premises prior to its
installation, then the Landlord shall advise the Tenant in writing of such
determination within ten (10) days after the Tenant gives the Landlord written
notice requesting that the Landlord make such determination. All movable
equipment, trade fixtures and furnishings not attached to the Premises shall
remain the personal property of the Tenant and shall be removed by the Tenant
upon termination or expiration of this Lease. Notwithstanding anything to the
contrary contained in this Section 4.2, any alterations and additions funded by
the Landlord, and installed as part of the Initial Leasehold Improvements (as
defined in the Work Letter) or otherwise (the "Landlord Funded Improvements"),
and all alterations and additions which are necessary for the use of the
Premises as an operational biotechnology laboratory (the "Base Laboratory
Improvements"), regardless of who funded their acquisition and installation,
shall be part of the Building and owned by the Landlord, and shall in no event
constitute the Tenant's personal property. For purposes of this Lease, "Base
Laboratory Improvements" shall include equipment that is integrated into the
Building which is consistent with and necessary for the operation of a standard,
high quality biotechnology research laboratory. Such equipment would include,
but would not be limited to, supply and exhaust ventilation systems; fume hoods
in reasonable quantity; environmental rooms in reasonable quantity; laboratory
benches in reasonable quantity, casework with associated shelving (whether fixed
or adjustable or otherwise capable of being relocated) in reasonable quantity,
fixtures, plumbing supply/waste lines and equipment associated therewith, gas
supply lines, a back-up electrical generator sufficient to
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meet critical power requirements, and similar improvements. Base Laboratory
Improvements does not include stand-alone equipment such as autoclaves,
cagewashers, glasswashers, refrigerators, biosafety cabinets, NMR equipment,
benchtop equipment, and similar equipment.
Any alterations and additions which are neither Landlord Funded
Improvements nor Base Laboratory Improvements shall remain the property of the
Tenant, and, if required to be removed upon the termination or expiration of
this Lease as hereinabove provided, shall be removed by the Tenant with
reasonable care and diligence, including the capping off of all utility
connections behind the adjacent interior finish, and the restoration of such
interior finish to the extent necessary so that the Premises are left with
complete wall, ceiling and floor finishes.
Section 4.3 CONSTRUCTION REQUIREMENTS FOR ALTERATIONS. All construction
work performed by or on behalf of the Tenant ("Tenant's Work"), including
without limitation any Initial Leasehold Improvements, shall be done in a good
and workmanlike manner employing only first-class materials and in compliance
with Landlord's construction rules and regulations and with all applicable laws
and all lawful ordinances, regulations and orders of Governmental authority and
insurers of the Building. The Landlord or Landlord's authorized agent may (but
without any implied obligation to do so) inspect the work of the Tenant at
reasonable times and shall give notice of observed defects. Tenant's Work and
the installation of furnishings shall always be coordinated in such manner as to
maintain harmonious labor relations within University Park and not to damage the
Building or interfere with Building construction or operation. Tenant's Work
shall be performed by contractors or workmen first approved by the Landlord,
which approval the Landlord agrees not to unreasonably withhold or delay. The
Landlord agrees to cooperate with the Tenant to develop a list of contractors
and workmen (which may change, from time to time) who are mutually acceptable
and are permitted to perform work in the Building. The Tenant, before starting
any work, shall receive and comply with the Landlord's construction rules and
regulations and shall cause the Tenant's contractors to comply therewith, except
in the case of the Initial Leasehold Improvements obtain "builder's risk"
coverage (in an amount that is reasonable given the quality and quantity of the
work to be undertaken) to enhance the insurance coverage otherwise required to
be carried by the Tenant, secure all licenses and permits necessary for such
work, and deliver to the Landlord a statement of the names of its general
contractor (or construction manager) and subcontractors who are to perform
mechanical, electrical or plumbing work or are otherwise to perform work that
will affect the structure or base building systems of the Building, and the
estimated cost of all labor and material to be furnished by them and security
satisfactory to the Landlord in its reasonable discretion and consistent with
the security requirements for comparable work in comparable buildings in the
Cambridge market protecting the Landlord against liens arising out of the
furnishing of such labor and material; and cause each contractor to carry
worker's compensation insurance in statutory amounts covering all the
contractors' and subcontractors' employees and comprehensive general public
liability insurance with limits (except as otherwise provided in the Work Letter
with respect to Initial Leasehold Improvements) of $1,000,000 (individual) and
$5,000,000 (occurrence), or in such lesser amounts as Landlord may accept,
covering personal injury and death and property damage (all such insurance to be
written in companies approved reasonably by the Landlord and insuring the
Landlord, such individuals and entities affiliated
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with the Landlord as the Landlord may designate, any ground lessor or mortgagee
that the Landlord may designate, and the Tenant as well as the contractors and
to contain a requirement for at least thirty (30) days' notice to the Landlord
prior to cancellation, nonrenewal or material change), and to deliver to the
Landlord certificates of all such insurance.
Section 4.4 PAYMENT FOR TENANT ALTERATIONS. The Tenant agrees to pay
promptly when due the entire cost of any work done on the Premises by the
Tenant, its agents, employees or independent contractors, and not to cause or
permit any liens for labor or materials performed or furnished in connection
therewith to attach to the Premises or the Property and promptly to discharge or
bond over any such liens which may so attach. If any such lien shall be filed
against the Premises or the Property and the Tenant shall fail to cause such
lien to be discharged, or bonded over, within fifteen (15) days after receipt by
the Tenant of notice of the filing thereof, the Landlord after a further five
(5) days' written notice may cause such lien to be discharged by payment, bond
or otherwise without investigation as to the validity thereof or as to any
offsets or defenses which the Tenant may have with respect to the amount
claimed. The Tenant shall reimburse the Landlord, as additional rent, for any
cost so incurred and shall indemnify and hold harmless the Landlord from and
against any and all claims, costs, damages, liabilities and expenses (including
reasonable attorneys' fees) which may be incurred or suffered by the Landlord by
reason of any such lien or its discharge. The Tenant's obligations under this
Section 4.4 with respect to the Initial Leasehold Improvements that are,
pursuant to the Work Letter, to be paid for with the proceeds of Landlord's
Contribution, are conditioned upon the Landlord's payment to the Tenant of
Landlord's Contribution in accordance with the Work Letter.
ARTICLE 5
RESPONSIBILITY FOR CONDITION OF BUILDING AND PREMISES
Section 5.1 MAINTENANCE OF BUILDING AND COMMON AREAS BY LANDLORD.
Except as otherwise provided in Article 8, the Landlord shall make such repairs
to the foundation system, roof, exterior walls (including exterior glass), floor
slabs, and any other structural elements of the Building as may be necessary to
keep them in good order, condition and repair, and make such repairs to the
mechanical systems and equipment serving the Building, except for any mechanical
systems and equipment that serve the Premises exclusively ("Tenant's Dedicated
Mechanical Systems and Equipment"), as are necessary to keep them in good order,
condition and repair. The Landlord shall further perform the services designated
as Landlord's Services on EXHIBIT D. Costs and expenses incurred by the Landlord
under this Section 5.1 shall be included in Operating Expenses of the Property
only as permitted under Section 3.3. Subject to Section 7.5, the Tenant shall be
responsible for 100% of the cost of any repair to the Premises, the Building, or
the Land caused by the negligence or misconduct of the Tenant, or any agent,
employee or contractor of the Tenant, notwithstanding anything to the contrary
provided in Section 3.3.
Section 5.2 MAINTENANCE OF PREMISES BY TENANT. The Tenant shall keep
and maintain in good order, condition and repair the Premises and every part
thereof and all of Tenant's
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Dedicated Mechanical Systems and Equipment, reasonable wear and tear and damage
by fire or other casualty excepted (provided that subject to Section 7.5, the
Landlord shall be responsible for damage caused by the fault or neglect of the
Landlord, or the Landlord's agents, employees or contractors), excluding those
repairs for which the Landlord is responsible pursuant to Sections 5.1, 8.1 and
8.5, and shall surrender the Premises and all alterations and additions thereto,
at the end of the Term, in such condition, first removing all personal property
of the Tenant and, to the extent required pursuant to this Lease, all
alterations and additions made by the Tenant, repairing any damage caused by
such removal and restoring the Premises and leaving them in broom clean
condition. If the Tenant elects to provide the Tenant-Provided Services,
identified as such in Section 5.3, the Tenant shall perform the Tenant-Provided
Services promptly, as necessary and appropriate, with due diligence and in
accordance with the standards therefor established under Section 5.3. The Tenant
shall not permit or commit any damage (waste), and the Tenant shall, subject to
Section 7.5, be responsible for the cost of repairs which may be made necessary
by reason of damage to the Property caused by the negligence or misconduct of
the Tenant, or any of the contractors, employees, or agents of the Tenant.
Tenant's Dedicated Mechanical Systems and Equipment, and all other laboratory
systems and equipment, shall be maintained in good order, condition and repair
consistent with prevailing standards at comparable first-class leased
biotechnology facilities, reasonable wear and tear, damage by fire or other
casualty, and subject to Section 7.5, damage caused by the fault or neglect of
the Landlord, or the Landlord's agents, employees, or contractors excepted.
Section 5.3 TENANT-PROVIDED SERVICES. Notwithstanding anything to the
contrary contained in this Article 5, the Tenant may choose to provide, at its
own cost and expense, in lieu of the Landlord providing the same under this
Lease, the building services specified in clauses H and I of EXHIBIT D, and such
other services as the Landlord may approve in its reasonable discretion. Such
services which are paid for and provided by the Tenant are hereinafter referred
to as the "Tenant-Provided Services." The provision by Tenant of Tenant-Provided
Services shall be subject to reasonable standards imposed by Landlord for the
purpose of assuring the fulfillment of the requirements of any ground lessee,
mortgagee, tenant, governmental authority or other third party pertaining to the
maintenance and operation of the Building in good order, condition and repair
and in compliance with all legal requirements.
Section 5.4 DELAYS IN LANDLORD'S SERVICES. The Landlord shall not be
liable to the Tenant for any compensation or reduction of rent by reason or
inconvenience or annoyance or for loss of business arising from the necessity of
the Landlord or its agents entering the Premises for any purposes authorized in
this Lease, or for repairing the Premises or any portion of the Building. In
case the Landlord is prevented or delayed from making any repairs, alterations
or improvements, or furnishing any services or performing any other covenant or
duty to be performed on the Landlord's part, by reason of any External Cause,
the Landlord shall not be liable to the Tenant therefor, nor, except as
expressly otherwise provided in this Lease, shall the Tenant be entitled to any
abatement or reduction of rent by reason thereof, nor shall the same give rise
to a claim in the Tenant's favor that such failure constitutes actual or
constructive, total or partial, eviction from the Premises.
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The Landlord reserves the right to stop any service or utility system
the Landlord provides or causes to be provided under this Lease (i.e. exclusive
of any Tenant-Provided Services or other obligations of the Tenant under this
Lease) when necessary by reason of accident or emergency, or until necessary
repairs have been completed; provided, however, that in each instance of
stoppage, the Landlord shall exercise reasonable diligence to eliminate the
cause thereof. Except in case of emergency repairs, the Landlord will give the
Tenant reasonable advance notice of the contemplated stoppage and will schedule
contemplated stoppages at times reasonably approved by the Tenant and will use
reasonable efforts to avoid unnecessary inconvenience to the Tenant by reason
thereof. To the extent that the Landlord is providing or causing to be provided
heat, light or any utility or service, in no event shall the Landlord have any
liability to the Tenant for the unavailability of the same to the extent that
such unavailability is caused by External Causes, provided, however, that the
Landlord is obligated to exercise reasonable efforts to restore such services or
utility systems' operation. The Landlord agrees to carry rent interruption
insurance in commercially reasonable amounts which permits recovery within, to
the extent reasonably available, five (5) days after the insured peril.
If the unavailability of heat, light or any utility or service provided
or caused to be provided by the Landlord other than the unavailability of the
same due to the Tenant's acts or omissions renders all or any portion of the
Premises untenantable for the Tenant's use as permitted under this Lease, and
the Tenant ceases to occupy the same for the conduct of its business, the Tenant
shall receive an equitable abatement of rent, taking into account the extent of
the Tenant's loss of use of the Premises, following the condition of
untenantability on and after the day following the expiration of the deductible
period provided in the Landlord's rent interruption insurance policy. For all
purposes of this Lease, if Tenant has responsibility for maintenance and repair
of any aspect of the Building or any equipment or system therein, the
functioning and performance of the same shall be the responsibility of the
Tenant under this Lease, and shall in no event constitute a service or utility
system that the Landlord provides or causes to be provided under this Lease.
Section 5.5 TENANT'S RESPONSIBILITIES REGARDING HAZARDOUS MATERIALS.
The Tenant covenants and agrees that the Tenant shall not use, generate, store
or dispose, nor shall the Tenant suffer or permit the use, generation, storing
or disposal in the Premises or otherwise by any of Tenant's contractors,
licensees, invitees, agents or employees, of any oil, toxic substances,
hazardous wastes or hazardous materials (collectively, "Hazardous Materials")
in, on or about the Premises, the Building or the Land, except for Hazardous
Materials that are necessary for Tenant's operation of Tenant's Permitted Use,
as set forth on EXHIBIT A, and in all cases such Hazardous Materials must be
used, generated, stored and disposed of in compliance with all applicable law
and regulations. The Tenant covenants and agrees that the Tenant shall comply
with all applicable laws and regulations and in handling and disposing of
materials used in its research and other uses of the Premises, whether or not
considered Hazardous Materials, and no dumping, flushing or other introduction
of Hazardous Materials or such other inappropriate materials into the septic,
sewage or other waste disposal systems serving the Premises shall occur, except
as specifically permitted by law and subject to the conditions and
qualifications imposed by any governmental license or permit. The Tenant shall
provide to the Landlord copies
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of all licenses and permits that the Tenant has been required to obtain prior to
the handling of any such Hazardous Materials, and the Tenant must obtain all of
such licenses and permits prior to the commencement of operations in the
Premises requiring the same. From time to time during the Term of this Lease,
and thereafter during which the Tenant occupies any portion of the Premises, the
Tenant shall provide the Landlord with such reasonable substantiation of the
Tenant's compliance with the requirements of this Section 5.5 and any additional
requirements set forth in Section 6.2 as the Landlord may reasonably request.
The Tenant covenants and agrees that the Tenant shall, at its sole cost,
promptly remove or remediate all Hazardous Materials that are found upon the
Premises, the Building or the Land by virtue of the failure of the foregoing
covenants and agreements to have been fulfilled, or otherwise as the result of
the act or omission of Tenant or its contractors, licensees, agents or
employees, in a manner complying with all applicable laws and regulations and
the provisions of this Lease. If the Tenant should have any responsibility under
this Section 5.5 to remove or remediate Hazardous Materials, the Tenant shall
keep the Landlord reasonably informed as to the status of the environmental
condition at issue, promptly furnish to the Landlord copies of all regulatory
filings with any governmental regulatory agencies in connection therewith, and
substantiate the performance of its obligations under this Section 5.5.
Section 5.6 LANDLORD'S RESPONSIBILITIES REGARDING HAZARDOUS MATERIALS.
During the Term of this Lease, if the removal or remediation of Hazardous
Materials from the Premises, Building or Land is required to be undertaken, then
except to the extent such obligation is the responsibility of the Tenant under
Section 5.5 hereof, the Landlord covenants and agrees to undertake the same
without charge to the Tenant. Without limitation of the foregoing, if necessary
to comply with any applicable legal requirements, should the existing
environmental condition of the Land require the removal or remediation of
Hazardous Materials, the Landlord shall perform such removal or remediation,
without charge to the Tenant, when and if required by applicable legal
requirements. The Landlord shall keep the Tenant reasonably informed as to the
status of the environmental condition at issue, promptly furnish to the Tenant
copies of all regulatory filings with any governmental regulatory agencies in
connection therewith, and substantiate the performance of its obligations under
this Section 5.6.
If the Premises shall be rendered no longer reasonably occupiable as a
consequence of the presence of Hazardous Materials for which the Landlord is
responsible for undertaking remediation under this Section 5.6, and the presence
of such Hazardous Materials is introduced to the Premises by the Landlord, then
until the Premises is again reasonably occupiable, the Annual Fixed Rent and
Additional Rent shall be justly and equitably abated and reduced according to
the nature and extent of the loss of use thereof suffered by the Tenant.
Section 5.7 CROSS INDEMNIFICATION. Each of the Landlord and the Tenant
shall defend and indemnify the other and hold the other harmless from and
against any damages, liability or expense associated with claims by governmental
or other third parties arising out of the presence, removal or remediation of
Hazardous Materials for which the indemnifying party is responsible for removal
or remediation under this Lease.
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ARTICLE 6
TENANT COVENANTS
The Tenant covenants during the Term and for such further time as the
Tenant occupies any part of the Premises:
Section 6.1 PERMITTED USES. The Tenant shall occupy the Premises only
for the Permitted Uses, and shall not injure or deface the Premises or the
Property, nor permit in the Premises any auction sale. The Tenant shall give
written notice to the Landlord, within twenty (20) days prior to the
Commencement Date and thereafter once annually within twenty (20) days of each
anniversary of the Commencement Date, of any materials on OSHA's right to know
list or which are subject to regulation by any other federal, state, municipal
or other governmental authority and which the Tenant intends to have present at
the Premises. The Tenant shall comply with all requirements of public
authorities and of the Board of Fire Underwriters in connection with methods of
storage, use and disposal thereof although nothing herein shall prevent the
Tenant from challenging the validity of such requirements. The Tenant shall not
permit in the Premises any nuisance, or the emission from the Premises of any
reasonably objectionable noise, odor or vibration, nor use or devote the
Premises or any part thereof for any purpose which is contrary to law or
ordinance, or liable to invalidate or increase premiums (above those normally
incurred for Permitted Uses) for any insurance on the Building or its contents
(unless the Tenant pays for any such increase in premiums and provided such
actions do not interfere with the use and enjoyment of the Land by the Landlord,
other tenants, visitors or invitees of University Park) or liable to render
necessary any alteration or addition to the Building, nor commit or permit any
waste in or with respect to the Premises.
Section 6.2 LAWS AND REGULATIONS. The Tenant shall comply with all
federal, state and local laws, regulations, ordinances. executive orders,
federal guidelines, and similar requirements in effect from time to time,
including, without limitation, City of Cambridge ordinances numbered 1005 and
1086 and any subsequently adopted ordinance for employment and animal
experimentation with respect to animal experiments and hazardous waste and any
such requirements pertaining to employment opportunity, anti-discrimination and
affirmative action. Tenant shall have the right to contest any notice of
violation for any of the foregoing by appropriate proceedings diligently
conducted in good faith.
Section 6.3 RULES AND REGULATIONS; SIGNS. The Tenant agrees to comply
with such reasonable and non-discriminatorily enforced rules and regulations of
general applicability ("Rules and Regulations") as (i) may from time to time be
made by the Landlord of which the Tenant is given written notice, so far as the
same relate to the use of the Building, the Land and the Tenant's appurtenant
parking privileges and (ii) may from time to time be promulgated under the
Declaration of Covenants with respect to all or any portion of University Park.
The Tenant shall not obstruct in any manner any portion of the Property; and,
except as set forth in this Lease, shall not permit the placing of any signs,
curtains, blinds, shades, awnings or flagpoles, or the like, visible from
outside the Building.
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Section 6.4 SAFETY COMPLIANCE. The Tenant shall keep the Premises
equipped with all safety appliances required by law or ordinance or any other
regulations of any public authority because of the manner of use made by the
Tenant and to procure all licenses and permits so required because of such
manner of use and, if requested by the Landlord, 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 the Tenant's Permitted Uses. Tenant shall
conduct such periodic tests, evaluations or certifications of safety appliances
and laboratory equipment as are required or recommended in accordance with
generally accepted standards for good laboratory practice to ensure that such
safety appliances and equipment remain in good working order, and shall, upon
Landlord's reasonable request but not more often than two (2) times in any
calendar year, provide to Landlord copies of such reports, evaluations and
certifications.
Section 6.5 LANDLORD'S ENTRY. The Tenant shall permit the Landlord and
it agents, after at least twenty four (24) hours' notice except in the case of
emergencies, to enter the Premises at all reasonable hours for the purpose of
inspecting or making repairs to the same, monitoring Tenant's compliance with
the requirements and restrictions set forth in this Lease, and for the purpose
of showing the Premises to prospective purchasers and mortgagees at all
reasonable times and to prospective tenants within twelve (12) months of the end
of the Term provided that in connection with such entry, Tenant may provide
procedures reasonably designed so as not to jeopardize Tenant's trade secrets,
proprietary technology or critical business operations, including accompaniment
of all such persons by an employee of the Tenant. In case of an emergency, the
Landlord shall make good faith efforts to notify the Tenant in person or by
telephone prior to such entry, and in any event, the Landlord shall notify
Tenant promptly thereafter such entry.
Section 6.6 FLOOR LOAD. The Tenant shall not place a load upon any
floor in the Premises exceeding the floor load per square foot of area which
such floor was designed to carry, and which is allowed by law. The Tenant's
machines and mechanical equipment shall be placed and maintained by the Tenant
at the Tenant's expense in settings sufficient to absorb or prevent vibration or
noise that may be transmitted to the Building structure.
Section 6.7 PERSONAL PROPERTY TAX. The Tenant shall pay promptly when
due all taxes which may be imposed upon personal property (including, without
limitation, fixtures and equipment) in the Premises to whomever assessed. Tenant
shall have the right to contest the validity or amount of any such taxes by
appropriate proceedings diligently conducted in good faith.
Section 6.8 ASSIGNMENT AND SUBLEASES. The Tenant shall not assign this
Lease or sublet (which term, without limitation, shall include granting of
concessions, licenses and the like) the whole or any part of the Premises, nor
permit the further underletting or assignment of any sublease or other occupancy
agreement (each a "Transfer") without, in each instance, having first received
the consent of the Landlord which consent shall not be unreasonably withheld or
delayed, except in the case of Permitted Transfers, with respect to which the
Landlord's consent shall not be required so long as a condition constituting an
Event of Default is not then
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subsisting. In no event shall any of the Tenant's rights with respect to the
roof of the Building, if any, be assigned or sublet other than in connection
with a Transfer of the whole or any part of the Premises for purposes of
enabling the transferee to occupy the same for the conduct of its business
therein (provided that the occupancy of part of the Premises in service of a
business the substantial orientation of which is roof communications shall not
qualify as such an occupancy), or to a service provider using such roof rights
exclusively for the purpose of providing services to the Tenant in connection
with the conduct of the Tenant's business (other than a communications
business). Any purported Transfer made without such consent or otherwise not
fulfilling the conditions and requirements of this Section 6.8 shall be void,
and except as specifically permitted in this Section 6.8, in no event shall the
Tenant or anyone claiming by, through or under the Tenant have the right to
mortgage, pledge, hypothecate or otherwise transfer this Lease. The Landlord
shall not be deemed to be unreasonable in withholding its consent to any
proposed Transfer that is subject to the Landlord's consent based on any of the
following factors:
(a) If the manner in which the proposed occupant conducts its
business operations is not consistent, in Landlord's reasonable
opinion, with the image and character of the University Park
development as a first-class office/research and development park, then
the withholding of consent by the Landlord shall be considered
reasonable and
(b) If the proposed Transfer is (i) an assignment of this
Lease, or (ii) a sublease where as a result of the consummation of such
sublease, the then Tenant shall no longer be in occupancy of at least
sixty five percent (65%) of the rentable floor area of the Premises
(e.g. any sublease that would result in more than thirty five percent
(35%) of the rentable floor area of the Premises being subject to a
sublease, subleases or other occupancy agreements), then in either of
such cases, if the proposed occupant is not sufficiently creditworthy
in the reasonable opinion of the Landlord with reference to the
obligations which are to be fulfilled by the tenant under this Lease,
and the reasonable needs of the Landlord to protect the value of the
Building, then the withholding of consent by the Landlord shall be
considered reasonable.
If the proposed occupant is already involved in discussions with either
the Landlord or any affiliate of the Landlord regarding space within University
Park that is or is to become available for lease, then the withholding of
consent by the Landlord shall be considered reasonable.
Notwithstanding anything to the contrary contained in this Section,
Tenant shall have the right to assign or otherwise transfer this Lease or the
Premises, or part of the Premises, without obtaining the prior consent of
Landlord, (a) to an entity owning a majority of Tenant or to a majority owned
subsidiary or to an entity which is majority owned by the same entity which owns
a majority of Tenant (any of the foregoing being referred to herein as a "Tenant
Affiliate"), provided that (i) the transferee shall, subject to applicable law,
regulation or prior binding agreement, prior to the effective date of the
transfer, deliver to Landlord instruments evidencing such transfer and its
agreement to assume and be bound by all the terms, conditions and
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covenants of this Lease to be performed by Tenant, all in form reasonably
acceptable to Landlord, and (ii) at the time of such transfer there shall not be
an uncured Event of Default under this Lease; or (b) to the purchaser of at
least fifty percent (50%) of its assets or stock, or to any entity into which
the Tenant may be merged or consolidated (along with all or substantially all of
its assets) (the "Acquiring Company"), provided that (i) the net worth of the
Acquiring Company upon the consummation of the transfer or merger shall not be
less than the net worth of the Tenant at the time immediately prior to such
transfer or merger, (ii) the Acquiring Company continues to operate the business
conducted in the Premises consistent with the Permitted Uses described in
Exhibit A hereto, (iii) the Acquiring Company shall assume in writing, in form
reasonably acceptable to Landlord, all of Tenant's obligations under this Lease,
(iv) Tenant shall provide to Landlord such additional information regarding the
Acquiring Company as Landlord shall reasonably request, and (v) Tenant shall pay
Landlord's reasonable out-of-pocket expenses incurred in connection therewith.
Unless Landlord shall have objected to such assignment or transfer by Tenant
within ten (10) business days following Landlord's receipt of the information or
items described in (b)(i) and (iii) above, then Landlord shall be deemed to have
waived its right to object thereto. Each of the transfers described in this
paragraph is referred to hereinafter as "Permitted Transfers." In no event shall
any transaction consummated for the purpose of evading Tenant's obligation to
obtain Landlord's consent under this Section 6.8 be construed as a Permitted
Transfer, notwithstanding that such transaction otherwise qualifies as a
Permitted Transfer.
Whether or not the Landlord consents, or is required to consent, to any
Transfer, the Tenant named herein shall remain fully and primarily liable for
the obligations of the Tenant hereunder, including, without limitation, the
obligation to pay Annual Fixed Rent and Additional Rent provided under this
Lease.
The Tenant shall give the Landlord notice of any proposed Transfer
(other than a Permitted Transfer), specifying the provisions thereof, including
(i) the name and address of the proposed occupant, subtenant, assignee,
mortgagee or other transferee, (ii) a copy of the proposed occupant's,
subtenant's, assignee's, mortgagee's or other transferee's most recent annual
financial statement, and (iii) all of the terms and provisions upon which the
proposed Transfer is to be made including, without limitation, all of the
documentation effectuating such Transfer (which shall be subject to the
Landlord's approval not to be unreasonably withheld) and such other reasonable
information concerning the proposed Transfer or concerning the proposed
occupant, subtenant, assignee, mortgagee or other transferee as the Tenant has
obtained in connection with the proposed Transfer. The Tenant shall reimburse
the Landlord promptly for reasonable legal and other reasonable expenses
incurred by the Landlord in connection with any request by the Tenant for
consent to any Transfer. If this Lease is assigned, or if the Premises or any
part thereof is sublet or occupied by anyone other than the Tenant, or there is
otherwise a Transfer, then during any time when an Event of Default is
subsisting, the Landlord may, at any time and from time to time, collect rent
and other charges from the assignee, sublessee, occupant, mortgagee or
transferee, and apply the net amount collected to the rent and other charges
herein reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of the prohibitions contained in this Section 6.8 or
the acceptance of the assignee, sublessee or
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occupant as a tenant or a release of the Tenant from the further performance by
the Tenant of covenants on the part of the Tenant herein contained.
The Tenant shall pay to the Landlord fifty percent (50%) of any amounts
the Tenant receives from any occupant, subtenant, assignee or other transferee
other than a Permitted Transferee, as rent, additional rent or other forms of
compensation or reimbursement (if any) in excess of the aggregate amount of (i)
the proportionate monthly share of Annual Fixed Rent, Additional Rent and all
other monies due to Landlord pursuant to this Lease (allocable in the case of a
sublease to that portion of the Premises being subleased), (ii) brokerage
commissions and fees for legal services associated with the transaction, (iii)
any expenses incurred by the Tenant in connection with preparing the Premises or
applicable portion thereof for occupancy by such subtenant, assignee or other
transferee and (iv) any monetary concessions paid to the subtenant, assignee or
other transferee such as, but not limited to, reimbursement of moving expenses
(collectively "Sublease Transaction Expenses"). In the circumstances where the
transferee pays the consideration due to the Tenant on account of such transfer
over time (e.g. monthly rental payments under a sublease), Sublease Transaction
Expenses shall be amortized on a straight-line basis over the term of the
transfer in question, together with interest at a rate which is reasonably
satisfactory to the Landlord. Neither the fact that the Landlord's consent may
not be required in order for the Tenant to effectuate a Permitted Transfer, nor
the consent by the Landlord to a Transfer for which the Landlord's consent is
required shall be construed to relieve the Tenant from the obligation to obtain
the express consent in writing of the Landlord to any further Transfer whether
by the Tenant or by anyone claiming by, through or under the Tenant including,
without limitation, any occupant, assignee, subtenant, mortgagee or other
transferee, excluding any Permitted Transfer.
The Landlord may elect, within thirty (30) days of receipt of written
notice from the Tenant of any proposed assignment of this Lease prior to
approving or disapproving any such proposed assignment, to repossess the
Premises. The Landlord may thereafter lease the Premises in such a manner as the
Landlord may in its sole discretion determine. In the event the Landlord elects
to repossess the Premises as provided above, then all of the Tenant's rights and
obligations hereunder with respect to the Premises shall cease and shall be of
no further force and effect. The provisions of this paragraph shall not apply to
Permitted Transfers.
If the Landlord withholds consent to a proposed Transfer, in any case
where the Landlord is bound by this Lease not to unreasonably withhold such
consent, and the Tenant disputes the reasonability of the Landlord's withholding
of such consent, then either party may, at its election, have the dispute
resolved by the Expedited Dispute Resolution Procedure. The Landlord shall have
no liability for having unreasonably withheld consent to such a Transfer
provided that the Landlord may be required to give such consent pursuant to the
Expedited Dispute Resolution Procedure.
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ARTICLE 7
INDEMNITY AND INSURANCE
Section 7.1 INDEMNITY. The Tenant shall indemnify and save harmless the
Landlord and the Landlord's ground lessees, mortgagees and managing agent for
the Building from and against all claims, loss, or damage of whatever nature
arising from (i) any breach by Tenant of any obligation of Tenant under this
Lease, or (ii) any negligence or misconduct of the Tenant, or the Tenant's
contractors, licensees, agents, servants or employees, or (iii) any accident,
injury or damage whatsoever caused to any person or property in the Building or
on or about the Land, occurring after the Commencement Date (or such earlier
date upon which the Tenant first commences occupancy of all or any part of the
Premises) and until the end of the Term and thereafter, so long as the Tenant is
in occupancy of any part of the Premises, provided that the foregoing indemnity
shall not include any claims, loss or damage to the extent arising from any
negligence or misconduct of the Landlord, or the Landlord's contractors,
licensees, agents, servants or employees or the Landlord's ground lessees,
mortgagees or managing agent for the Building.
The Landlord shall indemnify and save harmless the Tenant from and
against all claims, loss, or damage of whatever nature arising from (i) any
breach by Landlord of any obligation of Landlord under this Lease or (ii) from
any negligence or misconduct of the Landlord, or the Landlord's contractors,
licensees, agents, servants or employees, provided that the foregoing indemnity
shall not include any claims, loss or damage to the extent arising from any act,
omission or negligence of the Tenant, or the Tenant's contractors, licensees,
agents, servants or employees, occurring following the Commencement Date and
until the expiration of earlier termination of the Term of this Lease.
The foregoing indemnity and hold harmless agreements shall include
indemnity against reasonable attorneys' fees and all other costs, expenses and
liabilities incurred in connection with any such claim or proceeding brought
thereon, and the defense thereof, but shall be subject to the limitations
specified in Sections 7.5 and 12.16.
Section 7.2 LIABILITY INSURANCE. The Tenant agrees to maintain in full
force from the Commencement Date (or such earlier date upon which the Tenant
first commences occupancy [as distinguished from construction of Initial
Leasehold Improvements by the Contractor (as defined in the Work Letter)] of all
or any part of the Premises), throughout the Term, and thereafter, so long as
the Tenant is in occupancy of any part of the Premises, a policy of commercial
general liability insurance under which the Landlord (and any individuals or
entities affiliated with the Landlord, any ground lessor and any holder of a
mortgage on the Property of whom the Tenant is notified by the Landlord) are
named as additional insureds, and under which the insurer provides a contractual
liability endorsement insuring against all cost, expense and liability arising
out of or based upon any and all claims, accidents, injuries and damages
described in Section 7.1, in the broadest form of such coverage from time to
time available. Each such policy shall be noncancelable and nonamendable (to the
extent that any proposed
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amendment reduces the limits or the scope of the insurance required in this
Lease) with respect to the Landlord and such ground lessors and mortgagees
without thirty (30) days' prior notice to the Landlord and such ground lessors
and mortgagees and at the election of the Landlord, either a certificate of
insurance or a duplicate original policy shall be delivered to the Landlord. The
minimum limits of liability of such insurance as of the Commencement Date shall
be Ten Million Dollars ($10,000,000.00) for combined bodily injury (or death)
and damage to property (per occurrence) with an aggregate annual limit of
liability of Ten Million Dollars ($10,000,000.00), and from time to time during
the Term such limits of liability shall be increased to reflect such higher
limits as are customarily required pursuant to new leases of space in the
Boston-Cambridge area with respect to similar properties. Such insurance may be
effected with a combination of a base commercial general liability policy and
umbrella insurance.
Section 7.3 PERSONAL PROPERTY AT RISK. The Tenant agrees that all of
the furnishings, fixtures, equipment, eff |
