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400 MINUTEMAN ROAD
ANDOVER, MASSACHUSETTS
LEASE
LANDLORD: 400 RIVER LIMITED PARTNERSHIP, a Massachusetts limited
partnership
TENANT: NAVISITE, INC., a Delaware corporation
DATE: May 14, 1999
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
1. BASIC LEASE PROVISIONS.............................................. 1
----------------------
2. CONSTRUCTION OF PREMISES............................................ 2
------------------------
3. POSSESSION AND SURRENDER OF PREMISES................................ 3
------------------------------------
4. TERM................................................................ 3
----
5. RENT................................................................ 3
----
6. TAXES............................................................... 3
-----
7. OPERATING COSTS..................................................... 4
---------------
8. INSURANCE........................................................... 4
---------
9. MONTHLY PAYMENT OF TAXES, OPERATING COSTS AND INSURANCE PREMIUMS.... 5
----------------------------------------------------------------
10. UTILITIES........................................................... 5
---------
11. USE OF PREMISES..................................................... 5
---------------
12. MAINTENANCE AND REPAIRS............................................. 6
-----------------------
13. ALTERATIONS......................................................... 6
-----------
14. INDEMNITY; SATISFACTION OF REMEDIES................................. 7
-----------------------------------
15. PARKING............................................................. 7
-------
16. DAMAGE OR DESTRUCTION............................................... 8
---------------------
17. CONDEMNATION........................................................ 8
------------
18. ASSIGNMENT AND SUBLETTING........................................... 9
-------------------------
19. MORTGAGEE PROTECTION................................................ 10
--------------------
20. ESTOPPEL CERTIFICATES............................................... 11
---------------------
21. DEFAULT............................................................. 11
-------
22. REMEDIES FOR DEFAULT................................................ 11
--------------------
23. [SEE EXHIBIT "F"]................................................... 12
24. GENERAL PROVISIONS.................................................. 12
------------------
25. HAZARDOUS SUBSTANCES................................................ 16
--------------------
SIGNATURES............................................................... 17
</TABLE>
EXHIBIT LIST
------------
"A" Premises Site Plan
"B" Legal Description
"B-1" Collection Agreement
"C" Workletter
"CC" Tenant Information
"D" Base Rent
"E" Current Rules and Regulations
i
<PAGE>
"F" Bankruptcy Provisions
"G" Pylon Signage
"H" Lender's Terms
"I" Subordination, Non-disturbance and Attornment Agreements
Rider #1 Expansion Option
Rider #2 Extension Options
Rider #3 Additional Terms
ii
<PAGE>
INDEX
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<TABLE>
<CAPTION>
Term Page Section or Exhibit
---- ---- ------------------
<S> <C> <C>
Acquiring Entity........................................... 16 24.18(ax)
Additional Letter of Credit................................ 15 24.17A(i)
Additional Parking Areas................................... 7 15.2
Additional Security........................................ 15 24.17A
Affiliates................................................. 16 24.18(a)
Alterations................................................ 6 13.1
Bankruptcy................................................. Page 1 of 1 Exhibit "F"
Base Rent.................................................. 1 1.1(e)
Building................................................... 1 1.1(d)
Condemned.................................................. 8 17
default.................................................... 11 21
Expansion Parking.......................................... 7 15.2
Family Entity.............................................. 16 24.18(bx)
Family Sublease............................................ 16 24.18(bxx)
Guarantor.................................................. 2 1.1(k)
hazardous substances....................................... 16 25(a)
Landlord................................................... 1, 13 opening (P), 24.12
Landlord's Mortgagee....................................... 10 19.1
Landlord's Work............................................ 2, Page 1 of 1 2, Exhibit "C"
Laws....................................................... 16 24.18(b)
Lease Year................................................. 3 4(a)
Letter of Credit........................................... 1, 14 1.1(g); 24.17
Letter of Credit Loan...................................... 14 24.17(b)
Liabilities................................................ 16 24.18(c)
Liens...................................................... 7 13.4
Notices.................................................... 14 24.16
Operating Costs............................................ 4 7.1
person..................................................... 14 24.14
Premises................................................... 1 1.1(c)
rent....................................................... 3 5(a)
Rent Commencement Date..................................... 1 1.1(a)
Superior Leases and Mortgages.............................. 12 24.4
Systems and Equipment...................................... 16 24.18(d)
Taxes...................................................... 3 6
Tenant..................................................... 1 opening (P)
Tenant Delays.............................................. Page 1 of 1 Exhibit "C"
Tenant's Broker............................................ 2 1.1(l)
Tenant's Property.......................................... 3 3
Tenant's Percentage........................................ 1 1.1(f)
Tenant's Work.............................................. 2, Page 1 of 1 2, Exhibit "C"
Term....................................................... 1 1.1(b)
Transfer................................................... 9 18.1
Use of Premises............................................ 1 1.1(h)
</TABLE>
iii
<PAGE>
LEASE
-----
THIS INDENTURE OF LEASE, dated as of ________________________, 1999, is
between 400 RIVER LIMITED PARTNERSHIP, a Massachusetts limited partnership
("Landlord"), and NAVISITE, INC. a Delaware corporation ("Tenant").
Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord on the following terms and conditions:
1. BASIC LEASE PROVISIONS.
----------------------
1.1 Summary.
-------
(a) Rent Commencement Date: The Rent Commencement Date will be the
later of: (i) February 1, 2000; or (ii) the date that is the earlier of: (x) the
-------
date that Tenant occupies the Building to conduct business, or (y) the date that
Landlord's Work is deemed to have been substantially completed as described in
Article 2.
(b) Term: The term will start on the date of this Lease and will
expire twelve (12) Lease Years after the Rent Commencement Date has occurred,
subject to extension as provided in Section 4(b) and Rider #2 or earlier
termination in accordance with this Lease. At Landlord's written request, Tenant
promptly will execute and deliver a written confirmation of the Rent
Commencement Date, but Tenant's failure to do so will not affect the actual Rent
Commencement Date.
(c) Premises: The land (the "Land") located in Minuteman Park in
Andover, Massachusetts, generally as depicted in Exhibit "A" and legally
described in Exhibit "B", and all improvements now or hereafter constructed on
the Land. Tenant acknowledges and agrees that Landlord retains the right to
reconfigure the boundary lines of the Land generally as set forth in Exhibit
"A", and upon such reconfiguration Exhibit "A" will be replaced with a more
accurate depiction of the Land as reconfigured, and Exhibit "B" will be replaced
with a new legal description of the Land as reconfigured, and the Land will
consist of the Land as reconfigured, provided that such reconfiguration will not
cause the Premises to violate applicable Laws nor will it reduce the parking
spaces allocated to Tenant under this Lease nor will it prevent a potential
expansion of the Premises in accordance with Rider #1.
(d) Building: The building, agreed to contain 153,000 square feet of
rentable area (including, without limitation, ground floor, second floor,
rooftop penthouse, lobby, atrium, and core areas), and associated improvements
to be constructed by Landlord on the Land pursuant to this Lease, as it may be
initially constructed and subsequently changed, enlarged or improved in the
future.
(e) Base Rent: (see Exhibit "D", which in turn is subject to Rider
#2).
(f) Tenant's Percentage: One Hundred Percent (100%).
(g) Letter of Credit: [See Sections 24.17 and 24.17A].
(h) Use of Premises: For general office purposes, for a data center,
and for the packaging, creation and duplication of computer software, light
assembly, testing, configuring computer hardware, and training (but no
manufacturing), including diesel holding tanks, chillers and diesel generators
necessary for the operation of a data center.
(i) Notice to Tenant:
(Before Occupancy)
NaviSite, Inc.
100 Brickstone Square
Andover, Massachusetts 01810
Attn: Chief Financial Officer
(After Occupancy)
NaviSite, Inc.
<PAGE>
400 Minuteman Road
Andover, Massachusetts 01810
Attn: Chief Financial Officer
As long as CMGI, Inc. is the Guarantor, with a copy to:
--------------
CMGI, Inc.
100 Brickstone Square
Andover, Massachusetts 01810
Attn: William Williams II, Esq., General Counsel
With a copy to:
--------------
Pamela Coravos, Esq.
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
(j) Notice to Landlord:
400 River Limited Partnership
200 Brickstone Square
Andover, Massachusetts 01810
Attn: Martin Spagat
With a Copy to:
---------------
The Brickstone Companies
2101 Rosecrans Avenue, Suite 5252
El Segundo, California 90245-4742
Attn: John G. Baker, Esq.
(k) Guarantor: CMGI, Inc., pursuant to a Guaranty of Lease.
(l) Tenant's Broker: CRF Partners, Inc.
(m) Certain Other Defined Terms: [See Section 24.18]
If there is a conflict between this summary and the rest of this Lease, the rest
of this Lease will control.
1.2 Premises. Exhibit "A" is the general site plan of the Land, the
--------
Building and the other improvements and areas that are now planned as part of
the Premises. The parties acknowledge and agree that this site plan is general
in nature and thus may differ somewhat from the actual Building and Premises as
constructed. Landlord will not, without Tenant's consent, construct new leasable
area in the Premises or additional parking not for Tenant's use (except for the
Additional Parking Areas)
1.3 Wiring. To the extent that it does not damage Landlord's Work and/or
------
existing Systems and Equipment or the rest of the Building, Tenant, at its cost,
may install wiring for its computers and equipment above hung ceilings and
within the interior walls of the Building, provided that Tenant otherwise
complies with the rest of this Lease and that Landlord will have no obligations
or Liabilities in connection therewith. Tenant will indemnify and hold Landlord
harmless from Liabilities in connection with this wiring and installation,
maintenance and removal. Tenant will maintain the wiring.
2. CONSTRUCTION OF PREMISES.
------------------------
(a) Landlord will diligently perform "'Landlord's Work" and Tenant will
diligently perform "'Tenant's Work" in accordance with Exhibit "C" and the rest
of this Lease. Landlord's Work will be deemed to have been substantially
completed, even if Landlord has not completed "punchlist" or other minor items,
as long as Landlord agrees to complete these items diligently and as long as
such completion shall not materially interfere with Tenant's use and occupancy
of the Premises to conduct business. Tenant's final punchlist will be submitted
to Landlord within forty five (45) days after Landlord notifies Tenant that
Landlord's Work is substantially completed. Substantial completion of Landlord's
Work
2
<PAGE>
will be deemed to have occurred on the date as of which Landlord's architect
certifies in good faith that Landlord's Work has been substantially completed
(or the date as of which it could have been completed but for delays for which
Tenant is responsible as described in Exhibit "C"). Subject to extension by
reason of delays for which Tenant is responsible and force majeure, Landlord
will diligently attempt to substantially complete Landlord's Work for the
Building: to a level that will permit Tenant's contractors to enter during the
month of October, 1999 or earlier (with the continuing right to enter thereafter
in accordance with this Lease), in order to perform portions of Tenant's Work
for the Ground Floor of the Building; and so that all of Landlord's Work for the
Building is substantially completed during the month of February, 2000. If
Landlord's Work is not deemed to have been substantially completed and Tenant
does not occupy the Building to conduct business within eighteen (18) months
after this Lease becomes effective (not including delays for which Tenant is
responsible, and which period shall be extended for up to an additional six (6)
months for force majeure), Tenant will have the right to terminate this Lease on
at least thirty (30) days prior written notice, which notice must be given
within thirty (30) days after the end of such period (as it may be extended);
provided, however, that if Landlord's Work is deemed to have been substantially
-------- -------
completed or Tenant occupies to conduct business before the end of the period
specified in the termination notice, the termination notice and Tenant's
termination right will be null and void and this Lease will continue in full
force and effect. Tenant also will deliver to Landlord in a timely manner the
information to be provided by Tenant as described in Exhibit "CC" hereto, and
any other information reasonably requested of Tenant by Landlord to enable
Landlord to design and perform Landlord's Work.
(b) Tenant understands that Landlord's ability to obtain permanent mortgage
financing for the Premises likely will be conditioned on the diligent
performance and completion of Tenant's Work and Tenant's substantial occupancy
of the data center and the rest of the Building to conduct business as soon as
reasonably possible after the completion of each of those areas, and therefore
Tenant agrees to so complete Tenant's Work and to so occupy.
(c) Subject to the terms of this Section and the rest of this Lease,
Landlord will use good faith, diligence and commercially reasonable efforts to
perform and complete Landlord's Work in a good and workmanlike manner subject to
and in compliance with applicable Laws then in effect.
(d) Provided that the conditions stated below all are satisfied, Tenant
will have the right to purchase at "par" (i.e., a net payment to the lender at
closing of the entire outstanding principal balance, all accrued but unpaid
interest, and all other sums due under the Construction Loan documents) the
first mortgage construction loan encumbering the Premises (and associated
collateral) that will provide construction financing for Landlord's Work (the
"Construction Loan") and thereafter to complete Landlord's Work and Tenant's
Work. The conditions to be satisfied are: Landlord has defaulted under the
Construction Loan, and Landlord's default did not result in whole or in any
material part from Tenant's breach of its obligations under this Lease
(including, without limitation, a failure to comply with the terms of Section
24.17) and Tenant is not in default; Landlord has failed to cure its default
under the Construction Loan within applicable grace and cure periods; as a
result of such default, the lender notifies the applicable parties in writing
that it refuses to advance any further funds under the Construction Loan and
refuses to permit Landlord and/or Gilbane Building Company (or their respective
affiliates) to continue with the performance of Landlord's Work and in fact as a
result thereof construction of Landlord's Work ceases for at least thirty (30)
consecutive days; Tenant notifies Landlord in writing of its intention to
purchase the Construction Loan and Landlord fails to commence and thereafter
diligently continue construction of Landlord's Work within thirty (30) days
after receipt of Tenant's notice; Tenant's purchase of the Construction Loan is
accomplished pursuant to documents approved by the lender of the Construction
Loan. The terms of the Construction Loan will provide for the foregoing or will
provide other terms relating to Tenant's purchase of the Construction Loan as
the parties may approve and will in any event be non-recourse to the lender
without any warranty, express or implied, by the lender.
3. POSSESSION AND SURRENDER OF PREMISES.
------------------------------------
When this Lease terminates, Tenant will remove all of its signs, movable
trade fixtures and movable computer and other equipment (and wiring integral to
such computers and equipment), inventory and other personal property that is not
attached to the Building in such a manner as to cause substantial damage to the
Building when it is removed ("Tenant's Property"). Notwithstanding the foregoing
or anything else to the contrary, Tenant need not remove Tenant's Property from
the ground floor data center area, Tenant will not have the right to remove
raised flooring that is Tenant's Property if the Lease terminates by reason of
any default by Tenant (but if there is not a default Tenant will have the right
to remove raised flooring in the Ground Floor data center area on the
termination of the Lease), and Tenant will not have the right to remove any
ceilings, or any equipment or wiring that would damage the exterior or the
structure of the Building or that is integral to or necessary for the proper
functioning of the base building Systems and Equipment in the Building. Tenant's
Property remaining after termination will be deemed abandoned and Landlord may
keep, sell, destroy or dispose of it without incurring any Liabilities to
Tenant. In areas of the Building other than the data center, Tenant will repair
all damage and surrender the Premises broom clean and in good order, condition
and repair, and otherwise in the same condition as on the completion of the
initial Landlord's Work and the initial Tenant's Work, normal wear and
3
<PAGE>
tear excepted. In the data center, Tenant will repair only damage to the
exterior or structure of the Building or the base building Systems and
Equipment.
4. TERM.
----
(a) The Lease term is as set forth in Section 1.1(b). A "Lease Year" is a
period of twelve (12) consecutive calendar months during the Lease term starting
with the Rent Commencement Date. However, the first Lease Year is the first
twelve (12) full calendar months plus the partial month (if any) after the Rent
Commencement Date if the Rent Commencement Date is not the first day of the
month, and the last Lease Year may be less than twelve (12) months if the Lease
is terminated early or if the expiration date does not fall on the end of the
12-month period.
(b) If necessary, the initial term of this Lease will be deemed extended
(but not shortened) so that the initial term of this Lease will expire twelve
(12) years (plus any partial month) after the closing and funding of the initial
permanent mortgage loan that is secured by the Premises or any portion thereof;
provided, however, that the initial term of this Lease will not be extended by
more than nine (9) months by reason of this clause (not counting any delay in
such closing or funding due to Tenant's failure to complete Tenant's Work). At
Landlord's request, Tenant promptly will execute a written confirmation of the
new expiration date of the initial term, although Tenant's failure to execute
such a confirmation will not affect the actual (extended) expiration date of the
initial Lease term.
5. RENT.
----
(a) Tenant will pay the annual base rent as shown in Exhibit "D" (which in
turn is subject to Rider #2) in equal monthly installments in advance beginning
on the Rent Commencement Date and thereafter on the first day of each month
during the term, prorated for any portion of a month. The term "rent" includes
base rent, additional rent and all other amounts to be paid by Tenant under this
Lease, whether or not specifically described as rent. Subject to Subsection (b)
below, all rent due under this Lease will be paid without demand, deduction,
counterclaim or offset of any type in lawful U.S. legal tender at 2101 Rosecrans
Avenue, Suite 5252, El Segundo, CA 90245-4742, Attn: Accounting Dept., or to
such other person or place as Landlord may from time to time designate by
written notice pursuant to this Lease. Tenant will pay the first month's base
rent when it executes this Lease.
(b) If and for so long as there is a mortgage loan encumbering the
Premises or a loan that is secured by the Letter of Credit, at the written
request of Landlord or Tenant, Landlord and Tenant will establish a collection
account for the receipt and disbursement of base rent. In such event, Tenant
will pay the base rent as and when required each month into this collection
account, and the collection agent promptly will disburse from such amount an
amount sufficient to pay debt service and any other amounts owed to the mortgage
lender and/or the lender of the loan secured by the letter of credit, with the
balance being disbursed to Landlord. The collection agent and the terms of this
collection account will be subject to the mutual written approval of Landlord
and Tenant, which approval will be based on customary terms for such agreement
and will not be unreasonably withheld or delayed. The parties agree to the Bank
of America or the Bank of Boston as collection agent, and to a collection
agreement in form substantially similar to the one attached as Exhibit "B-1."
6. TAXES.
-----
6.1 Definition of Taxes. "Taxes" means all taxes, assessments, and other
-------------------
governmental or quasi-governmental levies, charges and fees imposed against, for
or in connection with all or any portion of: the Premises; the use, ownership,
leasing, occupancy, operation, management, repair, maintenance, demolition or
improvement of the Premises; Landlord's right to receive, or the receipt of,
rent, profit or income from the Premises; improvements, utilities and services,
whether because of special assessment districts or otherwise; the value of
Landlord's interest in the Premises; a reassessment due to any change in
ownership or other transfer of all or any portion of the Premises; and fixtures,
equipment and other real or personal property used by Landlord in connection
with the Premises. Taxes also include, without limitation, license fees, sales,
use, capital and value-added taxes, penalties, interest and costs incurred in
contesting taxes, and any governmental or quasi-governmental charges or taxes in
addition to, in substitution or in lieu of, partially or totally, any taxes or
charges previously included within this definition, including taxes or
governmental or quasi-governmental charges completely unforeseen by the parties
and collected from whatever source. Taxes do not include: Landlord's federal,
--------------------
state or municipal net income, franchise, excise, inheritance, gift or estate
taxes.
6.2 Payment of Taxes. Subject to Article 9, as of the Rent Commencement
----------------
Date Tenant will pay its Tenant's Percentage of all Taxes directly to Landlord
as additional rent within thirty (30) days after receipt of Landlord's bills
from time to time.
4
<PAGE>
6.3 Tenant's Taxes. Tenant will pay before delinquency all taxes
--------------
assessments, license fees and charges levied, assessed or imposed on Tenant,
Tenant's business operations and Tenant's Property.
7. OPERATING COSTS.
---------------
7.1 Definition of Operating Costs. "Operating Costs" are all costs and
-----------------------------
expenses incurred in connection with the Premises and its ownership, operation,
management, maintenance, repair, replacement and improvement, including, without
limitation, costs for: services, costs and utilities not otherwise directly paid
or reimbursed by Tenant; materials, supplies and equipment; deductibles under
Landlord's insurance policies; wages and payroll, including bonuses, (all of
which, for existing employees, will not increase by more than ten percent (10%)
per annum, cumulative, and, for employees subsequently hired, will not increase
by more than ten percent (10%) per annum, cumulative, over their initial wages
and payroll, including bonuses); fringe benefits, workers compensation and
payroll taxes; professional and consulting fees; management fees equal to three
percent (3%) of all scheduled rent (including, without limitation, base rent,
Taxes, Operating Costs, insurance costs and additional rent payable by Tenant
and without giving effect to any abatements or reductions) or, if no managing
agent is retained, an amount in lieu thereof not in excess of the foregoing
rates; complying with any Laws and insurance requirements; "environmental
audits" deemed necessary by Landlord (but no more than once per year),
snowplowing, landscaping and roadway maintenance, and costs payable in
connection with any easements or covenants, conditions and restrictions or
similar agreements that benefit or burden the Premises. Operating Costs do not
----------------------
include: Taxes or the exclusions therefrom; depreciation
-------
of the Premises structures and improvements; Landlord's loan fees, points, debt
service or ground lease payments, or costs incurred in negotiating of any of the
underlying documents in connection therewith; the cost of Landlord's Work; costs
(if any) for the construction, signalization, widening or improvement of public
roads or bridges or traffic mitigation (except for transportation management
programs or compliance therewith, which will be equitably allocated to the
property or properties affected) that have been committed to by Landlord in
connection with the existing MEPA Certificate of Compliance and the Special
Permit obtained for the Premises; expenses for repairs or maintenance to the
extent reimbursed by warranties, guarantees, service contracts or insurance
proceeds (net of costs of enforcement and/or collection); costs involved in
defending Landlord's title to or interest in the Project; costs to influence
prospective legislation; costs otherwise directly paid or specifically
reimbursed by Tenant (other than by an allocation of Operating Costs), such as
separately metered electricity payable directly by Tenant to the utility
company; brokerage commissions; marketing costs; and costs to construct new
leasable area or parking areas in the Premises that are not for use by Tenant.
The following costs will be included in Operating Costs, but amortized over the
useful life of the applicable item or twelve (12) years, whichever is less,
assuming straight-line amortization and an interest rate of ten percent (10%)
per annum: the replacement of the Building's major structural members (as
opposed to the cost of the repair and maintenance thereof, which will not be
---
amortized and will be fully included as part of Operating Costs when incurred);
and the cost of replacing the Building's roof (as opposed to the cost of the
repair and maintenance thereof, which will not be amortized will be fully
---
included as part of Operating Costs when incurred). However, in either case, if
such replacement is required due to Tenant's failure to properly repair or
maintain or the negligent or intentional acts or omissions of Tenant or its
Affiliates, Tenant will pay all costs in connection therewith as and when
incurred, less the net amount of any insurance proceeds collectible on account
thereof.
7.2 Payment of Operating Costs. Subject to Article 9, as of the Rent
--------------------------
Commencement Date Tenant will pay its Tenant's Percentage of Operating Costs
described in Section 7.1, as additional rent within thirty (30) days after
receipt of Landlord's bills from time to time.
8. INSURANCE.
---------
8.1 Tenant's Insurance.
------------------
(a) Tenant will maintain during the term:
(i) Commercial general liability insurance (Broad Form CGL),
with contractual liability, cross-liability and fire legal liability
endorsements, protecting against all claims and liabilities for personal, bodily
and other injuries, death and property damage including, without limitation,
broad form property damage insurance, automobile and personal injury coverage.
This insurance also will insure Tenant's indemnities pursuant to this Lease. The
amount of this insurance will not be less than $10,000,000.00 combined single
limit for each occurrence.
(ii) "All risk" casualty insurance, covering all of Tenant's
Work, Tenant's Property and all Alterations made by or for the benefit of
Tenant. This insurance will be for full replacement value.
(iii) [INTENTIONALLY OMITTED]
5
<PAGE>
(iv) Worker's compensation insurance in statutory limits, and
employer's liability insurance of not less than $1,000,000.00.
(v) Builder's risk insurance (completed value form) for work
required of or permitted to be made by Tenant. The amount of this insurance will
be reasonably satisfactory to Landlord and must be obtained before any work is
begun.
(b) All policies of insurance carried by Tenant must: name Landlord
and its designees as additional insureds; contain a waiver by the insurer of any
right to subrogation against Landlord and its Affiliates; be from insurers
acceptable to Landlord; and state that the insurers will not cancel, fail to
renew or modify the coverage without first giving Landlord and any other
additional insureds at least thirty (30) days prior written notice.
(c) Tenant will supply copies of each paid-up policy or a certificate
from the insurer certifying that the policy has been issued and complies with
all of the terms of this Article. The policies or certificates will be delivered
to Landlord when this Lease is signed and renewals provided not less than thirty
(30) days before the expiration of the coverage. Landlord always may inspect and
copy any of the policies. Tenant waives any right to recover against Landlord
for Liabilities in connection with any type of cause or peril which is supposed
to be insured against under the insurance policies required to be maintained by
Tenant.
8.2 Landlord's Insurance; Payment; and Waiver of Subrogation.
--------------------------------------------------------
(a) Landlord will maintain casualty insurance of at least ninety
percent (90%) of the full replacement cost of the Building and other
improvements in the Premises (excluding foundations, footings and below-grade
space), with either no deductibles or deductibles that do not exceed
commercially reasonable amounts, commercial general liability insurance (Broad
Form CGL or the functional equivalent) of at least Five Million Dollars
($5,000,000), and other insurance policies in such amounts, with such
deductibles and providing protection against such perils as Landlord determines
to be necessary in its sole discretion (which may include, without limitation,
rental loss insurance policies). All losses on all policies maintained pursuant
to this Article will be settled in Landlord's name (or as otherwise designated
by Landlord) and proceeds will belong and be paid to Landlord. Landlord makes no
representations or warranties as to the adequacy of any insurance to protect
Landlord's or Tenant's interests. Landlord's insurance policies will contain
waivers of subrogation.
(b) Subject to Article 9, Tenant will pay directly to Landlord as
additional rent Tenant's Percentage of the cost of all premiums for Landlord's
insurance for the Premises within thirty (30) days after receipt of Landlord's
bills from time to time.
(c) Tenant and its Affiliates will not undertake, fail to undertake
or permit any acts or omissions which will in any way increase the cost of,
violate, void or make voidable all or any portion of any insurance policies
maintained by Landlord, unless Landlord gives its specific written consent and
Tenant pays all increased costs directly to Landlord on demand.
9. MONTHLY PAYMENT OF TAXES, OPERATING COSTS AND INSURANCE PREMIUMS.
----------------------------------------------------------------
At any time and from time to time, and subject to later change, Landlord
may elect to have Tenant pay Tenant's share of Taxes, Operating Costs and
Landlord's insurance premiums (or any of them) in monthly installments, in
advance on the first of each month, based on amounts estimated by Landlord (as
revised from time to time). If these estimated monthly payments are required,
after the end of each tax fiscal year, Lease Year or other relevant periods
selected by Landlord, Landlord will deliver to Tenant a statement of the actual
amounts due for the period. Any additional amounts due from Tenant will be
payable as additional rent within thirty (30) days after receipt of Landlord's
statement, and any overpayment by Tenant will be refunded by Landlord or
deducted from the next monthly installments due for that particular payment
category. Quarterly, or less frequently, Landlord may deliver a bill to Tenant
for Tenant's share of Taxes, Operating Costs or insurance premiums, and Tenant
will pay the amount due to Landlord as additional rent within thirty (30) days
after receipt of Landlord's bill. Tenant will receive a credit for any estimated
monthly payments already paid by Tenant for the period covered by that bill. If
required by Landlord's lenders, estimated monthly payments of Taxes and/or
Operating Costs and/or insurance premiums will be escrowed with Landlord's
lenders.
10. UTILITIES.
---------
Landlord will be solely responsible for bringing utility services to the
Premises to the extent provided as part of Landlord's Work. Tenant will pay when
due to the furnishing parties all fees and costs for utility services, and
meters and equipment (to the extent not supplied as part of Landlord's Work),
furnished to the Building and the rest of the Premises, including, without
limitation, telephone, electricity, HVAC, sewer, water and gas (if furnished).
If utilities and services for the Premises are not separately metered or
charged, Tenant will pay its share (as reasonably determined by Landlord) of
such costs directly to Landlord as additional rent, either monthly when base
rent is due, or within fifteen (15) days after receipt of Landlord's bill, at
Landlord's option. Landlord is not responsible for any Liabilities incurred by
6
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Tenant or Tenant's Affiliates nor may Tenant abate rent, terminate this Lease or
pursue any other right or remedy against Landlord or Landlord's Affiliates, as a
result of any termination or malfunction of any utilities or utility systems.
11. USE OF PREMISES.
---------------
Tenant will use the Premises for the purposes described in Section 1.1(h),
but for no other purpose. Tenant will:
(a) Operate its business in an attractive and first class manner.
Tenant will not permit any unreasonable (for a data center) noises, vibrations,
odors or fumes in or to emanate from the Premises, nor commit or permit any
waste, improper, immoral or offensive use of the Premises, any public or private
nuisance or anything that unreasonably disturbs the quiet enjoyment of
neighboring occupants. In particular, Tenant agrees that except in emergencies,
it will make commercially reasonable efforts not to test or "test fire" its
backup generators except on Sundays or before or after normal business hours for
neighboring office tenants. All deliveries and pickups must be conducted at
times and in a commercially reasonable manner and so as not to unreasonably
disturb neighboring occupants. All trash and waste products must be stored,
discharged, processed and removed in a commercially reasonable manner and so as
not to unreasonably disturb neighboring occupants, and so as not to be visible
to other occupants of Minuteman Park or create any health or fire hazard.
(b) As long as 400 River Limited Partnership or an affiliated entity
or an entity affiliated with Niuna-400 River, Inc. or its current shareholders
or officers owns part of Minuteman Park or an interest therein, install only
window coverings and treatments approved by Landlord and, once installed, keep
them sufficiently closed to shield from outside view any machinery or other
equipment that Landlord determines is unsightly or inconsistent with the rest of
Minuteman Park. The parties acknowledge that the ground floor data center area
as now being designed will not have windows.
(c) (i) Not permit any coin or token operated vending, video, pinball,
gaming or other mechanical devices on the Premises, except solely for use by
Tenant's employees; (ii) conduct retail sales to walk-in customers (other than
occasional sales); (iii) permit governmental or quasi-governmental agencies to
occupy the Premises;(iv) use the Premises as doctors' offices, a school or
educational institution (except for training for customers and/or Tenant's
personnel), living or sleeping quarters ; (v) store, sell or distribute obscene,
lewd or pornographic materials or engage in related businesses in or from the
Premises; or (vi) conduct any auction, distress, fire, bankruptcy or going-out-
of-business sale. Tenant's business of hosting web pages will not be deemed to
be in violation of Subsections (iv) or (v) above.
(d) Comply with: Laws and insurance requirements affecting the
Premises or any use and occupancy thereof by Tenant or its Affiliates
(including, without limitation, making required improvements to the Premises);
and Landlord's rules and regulations from time to time. Tenant will, at its
expense, obtain and maintain all licenses, approvals and variances necessary to
conduct its business and occupy the Premises, but none of those licenses,
permits or variances will be binding on or in any way affect or restrict
Landlord, Minuteman Park or the Premises itself. The foregoing will not be
deemed to waive Landlord's obligations to obtain any necessary licenses,
approvals and variances for Landlord's Work (except if and to the extent that
they are dependent on the completion of Tenant's Work, in which case they will
be obtained on such completion).
(e) If it wishes, install signs or lettering on the entry doors to the
Premises identifying its tenancy in the manner customary to first-class office
buildings. Subject to complying in all instances with applicable Laws, Tenant
also will have the right to install the following additional sign (the
"Additional Sign"): a pylon sign in a location specified by Landlord,
identifying its tenancy in the manner customary to first-class office buildings,
and in conformity with the sketch attached hereto as Exhibit "G." Tenant's
rights with respect to the Additional Signs are personal to the Tenant
originally named in the Lease and may not be exercised or maintained by or for
anyone else (except by an "Acquiring Entity" as defined in Section 24.18). If
Tenant defaults, or Transfers any part of this Lease or the Premises (except for
valid subleases that all together aggregate less than fifty percent (50%) of the
rentable area of the Building when made), and at the expiration of the Lease,
Tenant at its cost will remove the Additional Signs and repair any damage to the
Building and the rest of the Premises, all in a manner satisfactory to Landlord
(and in addition to any other rights and remedies of Landlord if Tenant
defaults). The design, materials and construction of the Additional Signs will
be subject in all respects to Landlord's prior approval. Tenant will conform to
standards established by Landlord from time to time for the above signs and
lettering and submit for Landlord's prior approval a plan or sketch of the
Tenant's proposed sign or lettering, and provided that Tenant's signs and
lettering so conform, Landlord's consent will not be unreasonably withheld. All
other signs, lettering, awnings, canopies or other decorations require
Landlord's prior approval.
(f) Not use any advertising or other media or other such device which
can be heard or experienced outside the Premises (except as permitted in
subparagraph (e) above), including without limitation, lights or audio or visual
devices. Tenant will not distribute handbills or advertising, promotional or
other materials anywhere in Minuteman Park or solicit business in Minuteman Park
other than within its own Building.
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12. MAINTENANCE AND REPAIRS.
-----------------------
12.1 Landlord's Obligations. Landlord will repair and maintain roadways,
----------------------
sidewalks and parking areas of the Premises in a first-class manner and provide
snowplowing and landscaping for the Premises. For a period of one (1) year
following delivery (i.e., to correspond to the standard one (1)-year warranty
period), Landlord will also repair any of Landlord's Work that is defective on
delivery. However, Tenant will be responsible for all repairs and maintenance
resulting from Tenant's Alterations or the negligent or intentional acts or
omissions of Tenant or its Affiliates. Landlord will make its repairs within a
reasonable time following Tenant's notification that the repairs are required.
Landlord's obligations are subject to the provisions of Articles 16 and 17 and
the rest of this Lease.
12.2 Tenant's Obligations. Except for Landlord's obligations in Section
--------------------
12.1 and as set forth immediately below, Tenant will maintain and repair the
Building and the Systems and Equipment serving the Building in a first-class
manner (including replacement thereof if and when necessary), and keep the
Building in good order and condition, including, without limitation, Tenant's
Property, all doors, windows, window treatments, wall coverings, floor
coverings, non-structural portions of the ceiling, floor and walls, and Tenant's
Alterations (unless otherwise requested by Landlord). Subject to Landlord's
prior consent, which will not be unreasonably withheld, Tenant may select a
cleaning company of its choice to clean the Building at Tenant's sole cost. In
furtherance of Tenant's maintenance and repair obligations, Landlord will assign
to Tenant, or cooperate in a commercially reasonable manner with Tenant in
enforcing, any guarantees or warranties applicable to the Building.
13. ALTERATIONS.
-----------
13.1 Landlord's Consent. "Alterations" means Tenant's alterations,
------------------
additions, improvements, remodeling, repainting, or other changes. Tenant may
make nonstructural Alterations to the interior of the Building without
-------
Landlord's consent as long as the Alterations do not: (a) affect the windows,
the exterior of the Building, or any portion of the Building or the rest of the
Premises outside of the Building; (b) affect the strength, structural integrity
or load-bearing capacity of any portion of the Building; (c) adversely affect
the base building Systems and Equipment in the Building or any life safety
Systems and Equipment, and any replacement of any base building Systems and
Equipment must be with items equivalent to or better than the items being
replaced, and any replacement of life safety Systems and Equipment will require
Landlord's prior written consent; or (d) in Landlord's reasonable judgment, cost
more than a total of One Hundred Eighty Thousand Dollars ($180,000) in any Lease
Year (increasing at the rate of 3% per year) when combined with the cost of
other Alterations made in that Lease Year (and in this case Landlord's consent
will not be unreasonably withheld if the other limitations in this Section are
complied with). All other Alterations require Landlord's prior written consent.
Whether or not Landlord's consent is required, Alterations are subject to the
rest of this Article.
13.2 Notice. Tenant will notify Landlord not less than fifteen (15) days
------
before beginning any Alterations (but no notice will be required for moveable,
unattached partitions and work stations). Together with Tenant's notice, Tenant
will give Landlord copies of the necessary permits and approvals and, if
Landlord deems it necessary, plans and specifications for the Alterations (but
not for minor, non-structural Alterations such as wall coverings, built-in
cabinetry, and painting). Landlord's review or approval of Tenant's plans and
specifications is solely for Landlord's benefit and will not be considered a
representation or warranty to Tenant as to safety, adequacy, efficiency,
compliance with Laws or any other matter, or a waiver of any of Tenant's
obligations. Except for items of Tenant's Property, all Alterations will be
deemed Landlord's property and part of the realty, and will be surrendered with
the Premises at the end of this Lease, unless otherwise requested by Landlord
(but Tenant will not be required to remove the Alterations it makes as part of
Tenant's Work for Tenant's initial occupancy of the Building).
13.3 Compliance with Laws. Alterations will comply in all respects with
--------------------
this Lease and applicable Laws and insurance requirements. Alterations will be
done in a first-class manner, using first quality materials, and so as not to
interfere in any way with Landlord or any other occupant in Minuteman Park,
cause labor disputes, disharmony or delay, or impose any Liabilities on
Landlord. Alterations will be performed only by experienced, licensed and bonded
contractors and subcontractors approved in writing by Landlord, which approval
will not be unreasonably withheld. Tenant will cause its contractors and
subcontractors to carry workmen's compensation insurance.
13.4 Liens. Tenant will pay when due all claims for labor, materials and
-----
services claimed to be furnished for Tenant or Tenant's Affiliates or for their
benefit and keep the Premises free from all liens, security interests and
encumbrances ("Liens"). Tenant will indemnify Landlord for, and hold Landlord
harmless from, all Liens, the removal of all Liens and any related actions or
proceedings, and all Liabilities incurred by Landlord in connection therewith.
NOTICE IS HEREBY GIVEN TO ALL PERSONS FURNISHING LABOR OR MATERIALS TO TENANT
THAT NO MECHANICS', MATERIALMENS' OR OTHER LIENS SOUGHT ON THE PREMISES WILL IN
ANY MANNER AFFECT LANDLORD'S RIGHT, TITLE OR INTEREST.
13.5 Rooftop. Subject to the following and the rest of this Article and
-------
this Lease, Tenant may install telecommunications equipment on the roof of the
Building, provided that the equipment and associated installations are fully
screened in a manner reasonably satisfactory to Landlord and in keeping with the
rest of the Building . Tenant will be responsible for all Liabilities in
connection with this equipment and associated installations, including, without
8
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limitation, installation, removal, operation, repair, maintenance, insurance,
taxes and other costs and fees. Tenant also will be solely responsible for
securing all federal, state and local permits in connection with the
installation and operation of this equipment. For these and any other
installations undertaken by or for Tenant on the roof, or any other penetrations
of the roof or the roof membrane by or for Tenant, Tenant will secure from the
membrane roofing manufacturer certification that the installations or
penetrations are compatible with all design requirements and will not void the
existing roof warranty. This certification must be delivered to Landlord before
installation begins. Tenant also will use only a manufacturer-authorized roofing
contractor for any work that requires the penetration of the roof or the
membrane roofing system. Upon the expiration or earlier termination of this
Lease, Tenant, at its expense, will remove this equipment and associated
installations and repair all damage to the roof caused thereby or otherwise
caused by Tenant or its Affiliates. Notwithstanding anything to the contrary,
Landlord will have no Liabilities in connection with this equipment and
associated installations and/or any penetrations of the roof by or for Tenant,
and Tenant will indemnify Landlord for and hold it free and harmless from all
Liabilities arising out of or in connection therewith.
14. INDEMNITY; SATISFACTION OF REMEDIES.
-----------------------------------
14.1 Indemnification. In addition to any other indemnities in this Lease,
---------------
Tenant will indemnify Landlord for and hold Landlord harmless from Liabilities
arising from or in connection with: acts or omissions of Tenant or its
Affiliates or the conduct of Tenant's business; Tenant's breach of or default
under this Lease; and claims by Tenant's Affiliates or other persons if Landlord
declines to consent to any act, event or document requiring Landlord's consent
under this Lease. Tenant will not be required to pay to or indemnify Landlord
for special, indirect, consequential, punitive or similar damages by reason of
this clause, but this limitation will not apply with respect to Section 22 of
this Lease nor to any obligations or other Liabilities that Tenant may incur
thereunder nor to any damages that Landlord may recover from Tenant thereunder
(whether or not such Liabilities or damages thereunder are considered to be
special, indirect, consequential, punitive or similar damages).
14.2 Damage to Persons or Property. Subject to the rest of this Section
-----------------------------
and the rest of this Lease, Landlord will be liable for damages solely to the
extent caused by its own negligence or willful misconduct in breach of this
Lease, but Landlord will not be liable for any special, indirect, consequential,
punitive or similar damages (including, without limitation, any loss of use or
revenue by Tenant or any other person) under any circumstances, or for any
Liabilities arising from or in connection with: acts or omissions of Tenant, any
other tenants of or occupants of Minuteman Park, any third parties, or their
Affiliates, including, without limitation, burglary, vandalism, theft, or
criminal or illegal activity; explosion, fire, steam, electricity, water, gas,
rain, pollution, contamination, hazardous substances, motor vehicles or any
casualties; breakage, leakage, malfunction, obstruction or other defects in
Systems and Equipment, or of any services or utilities; any work, demolition,
maintenance or repairs permitted under this Lease; any exercise of Landlord's
rights under any Laws or under this Lease, including any entry by Landlord or
its Affiliates on the Premises in accordance with this Lease; or any of the
matters described in Section 24.5. Tenant and Tenant's Affiliates assume the
risk of all of these Liabilities and waive all claims against Landlord in
connection therewith. Tenant also waives any Laws or rights that would permit
Tenant to terminate this Lease, perform repairs or maintenance in lieu of
Landlord (or on Landlord's behalf), or offset or withhold any amounts due
because of damage to or destruction of the Premises, any repairs or maintenance,
or for any other reason. Tenant immediately will notify Landlord of any damage
or injury to persons or property and any events which could be anticipated to
give rise to any of the foregoing Liabilities. This exculpation of Landlord and
all of Tenant's waivers in this Lease will apply to all of Tenant's Affiliates
to the greatest extent possible. This Section 14.2 is not meant to reduce the
extent of Landlord's obligations to repair or rebuild in any particular
circumstance as may be required in Section 12.1 and Articles 16 and 17 or to
prevent Tenant from exercising termination rights (if any) specifically granted
to Tenant elsewhere in this Lease.
14.3 Satisfaction of Remedies. Notwithstanding anything in this Lease or
------------------------
elsewhere to the contrary: Tenant and its Affiliates will look solely to
Landlord's interest in the Premises to satisfy any claims, rights or remedies,
and Landlord and its Affiliates, at every level of ownership and interest, have
no personal or individual liability of any type, whether for breach of this
Lease or otherwise, their assets will not be subject to lien or levy of any
type, nor will they be named individually in any suits, actions or proceedings
of any type.
15. PARKING.
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15.1 [INTENTIONALLY OMITTED]
15.2 Parking. At no additional cost to Tenant (other than Tenant's share
-------
of Taxes, insurance and Operating Costs from time to time), Tenant may park in
accordance with applicable Laws in the parking areas of the Premises to be
constructed (other than in the Additional Parking Areas), which will be
approximately 450 spaces initially. Provided that Tenant does not default and
does not Transfer any part of this Lease or the Premises (except for subleases
that all together aggregate less than fifty percent (50%) of the rentable area
of the Building when made), if during the first five (5) Lease Years Tenant at
its cost converts a portion of the Ground Floor space in the Building from data
center use to office use (and if Tenant does so it shall do so at its own cost
and to a level of fit, finish and specifications equivalent to the Second Floor
office space in the Building and in accordance with the terms of this Lease),
Landlord at its cost will construct if necessary additional parking spaces so
that Tenant will have the right to park 3.3 cars per 1,000 square feet of such
converted office space, up to a maximum of 16,000 square feet of such converted
office space (the "Expansion
9
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Parking"). In addition, provided that Landlord's ability to provide the
Expansion Parking and to accommodate Tenant's possible expansion of the Building
in accordance with Rider #3 is not adversely impacted, Landlord at its cost will
have the right to construct additional parking areas on the Premises (the
"Additional Parking Areas") in the designated area shown in the site plan
attached as Exhibit "A", and to permit others to park thereon to the exclusion
of Tenant, pursuant to leases, licenses, easements or otherwise (or at
Landlord's option adjust the lot lines of the Property in accordance with
applicable Laws to exclude the Additional Parking Areas from the Premises), and
in this case Tenant will not be required to pay any Operating Costs or utilities
for the Additional Parking Areas (and if the Additional Parking Areas are
removed from the Premises, then Tenant will not be required to pay any costs in
connection with the Additional Parking Areas). If the Additional Parking Areas
remain part of the Premises and are used by parties other than Tenant or its
Affiliates to park on, Landlord will indemnify, defend and hold Tenant harmless
from loss or damage arising out of the exercise by parties other than Tenants or
its Affiliates of rights to park on the Additional Parking Areas. Landlord may
reasonably: change signs, lanes and the direction of traffic within the parking
areas; change, or add parking spaces or areas devoted to parking for Tenant's
use (in addition to the Additional Parking Areas); allow free parking or parking
with a validation, valet, sticker or other system; promulgate rules and
regulations; and take any other actions deemed necessary by Landlord, provided
that Tenant always will have access to its parking areas (except to the extent
that access is prevented by force majeure or necessary repairs and maintenance)
without additional charge, except for Tenant's share of Taxes, insurance and
Operating Costs from time to time.
16. DAMAGE OR DESTRUCTION.
---------------------
16.1 Repairs. Subject to the rest of this Article and the rest of this
-------
Lease, Landlord will repair damage to the Premises caused by casualties insured
against under standard "all risk" casualty policies. However, Landlord is not
obligated to repair damage for which Tenant or its Affiliates are responsible or
for which Landlord has no liability under other provisions of this Lease. Except
as may otherwise be required by then applicable Laws, Landlord will attempt to
restore the damaged portions to their prior condition, but Landlord is not
required to undertake repairs unless insurance proceeds are available, spend
more than the net insurance proceeds it actually receives and is permitted to
retain for any repair or replacement (unless Tenant first deposits with Landlord
an amount equal to one hundred ten percent (110%) of the expected shortfall as
reasonably determined by Landlord and agrees in a manner satisfactory to
Landlord and its lenders to promptly fund any additional shortfall), or repair
or replace any damage to Tenant's Work, Tenant's Property or any Alterations.
Landlord will begin repairs within a reasonable time after receiving notice of
the damage, required building permits or licenses and the insurance proceeds
payable on account of the damage.
16.2 Election to Terminate. Landlord has the option either to repair the
---------------------
casualty damage, or terminate this Lease by delivering written notice within
sixty (60) days after the damage occurs, if: the damage occurs during the last
year of the term, as it may be extended; or Tenant is in default; or in
Landlord's reasonable judgment the repairs normally would take more than twelve
(12) months to complete (as long as there would be at least one year remaining
in the term, as it may be extended, after the expected repair period); or in
Landlord's reasonable judgment the repairs normally would take more than one
hundred twenty (120) days or more than one-third (1/3) of the remaining term to
complete (if there would be less than one (1) year remaining in the term, as it
may be extended, after the expected repair period).
16.3 Abatement of Rent. If the Building is damaged so as to be
-----------------
untenantable for more than five (5) consecutive business days, or if Tenant's
parking is damaged and Landlord is not able to replace any of Tenant's lost
parking spaces reasonably promptly and in reasonable proximity and the lack of
parking materially adversely affects Tenant's ability to use the Building for
its intended purposes, and Landlord is required or elects to repair the damage,
base rent and Tenant's share of Taxes and Landlord's insurance premiums will
abate until Landlord has substantially completed the repairs and given Tenant
access to the Building (or Tenant's use of the Building for its intended
purposes no longer is materially impaired), or Tenant reoccupies part of the
Building, whichever is earlier. If Tenant continues to occupy or reoccupies the
Building before substantial completion of these repairs but cannot occupy
substantially all of the Building because of these ongoing repairs, base rent
and Tenant's share of Taxes and Landlord's insurance premiums will abate in
proportion to the degree to which Tenant's use of the Building is impaired, as
reasonably determined by Landlord. Base rent and Tenant's share of Taxes and
Landlord's insurance premiums will not be abated if the acts or omissions of
Tenant or its Affiliates render Landlord unable to collect the rental loss
insurance proceeds that otherwise would have been payable to Landlord. The
abatement of base rent and Tenant's share of Taxes and Landlord's insurance
premiums described above is Tenant's sole remedy against and compensation from
Landlord in connection with any damage, destruction or repairs.
17. CONDEMNATION.
------------
If all or substantially all of the Building or the Premises are condemned,
taken or appropriated by any public or quasi-public authority under the power of
eminent domain, police power or otherwise, or if there is a sale in lieu thereof
("Condemned"), this Lease will terminate when title or possession is taken by
the condemning authority or its designee. If:
(a) More than twenty-five percent (25%) of the usable area of the
Building or of Tenant's parking spaces is Condemned, either Landlord or Tenant
may terminate this Lease when title or possession is taken by the condemning
authority or its designee by delivering written notice to the other within
fifteen (15) days thereafter. (But,
10
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notwithstanding the foregoing, even if less than twenty five percent (25%) of
the usable area of the Building is Condemned but more than twenty five percent
(25%) of Tenant's parking spaces is Condemned, Tenant will not have the right to
terminate the Lease if Landlord, at its option, is able to replace any of
Tenant's lost parking spaces in excess of the twenty five percent (25%) maximum
reasonably promptly and in reasonable proximity to the Premises.
(b) Part of the Building is Condemned and this Lease is not
terminated, Landlord will make the necessary repairs so that, to the extent
reasonably possible, the remaining part of the Building will be a complete
architectural unit. If part of Tenant's parking is Condemned and this Lease is
not terminated, Landlord will if possible under applicable Laws and if
commercially reasonable, replace the lost parking on the Premises so that the
ratio of the number of Tenant's parking spaces after the Condemnation compared
to the rentable area of the Building after the Condemnation is not materially
less than the ratio of Tenant's total initial parking spaces compared to the
initial rentable area of the Building. Otherwise, Landlord's restoration or
replacement will be conducted as described in Section 16.1, except that Landlord
will not be required to begin repairs until a reasonable time after it receives
any necessary building permits and substantially all of the proceeds of any
awards granted for the Condemnation.
All proceeds, income, rent, awards and interest in connection with any
Condemnation will belong to Landlord, whether awarded as compensation for
diminution of value to the leasehold improvements, or the unexpired portion of
this Lease, or otherwise. Tenant waives all claims against Landlord and the
condemning authority with respect thereto, but nothing in this Section prevents
Tenant from bringing a separate action against the condemning authority for
moving costs or for lost goodwill (as long as this separate action does not
diminish Landlord's recovery).
18. ASSIGNMENT AND SUBLETTING.
-------------------------
18.1 Landlord's Consent Required. Tenant will not voluntarily,
---------------------------
involuntarily or by operation of any Laws sell, convey, mortgage, subject to a
security interest, license, assign, sublet or otherwise transfer or encumber all
or any part of Tenant's interest in this Lease or the Premises, or allow anyone
other than Tenant's employees to occupy the Premises (singularly or
collectively, "Transfer"), without Landlord's prior written consent in each
instance. Any attempt to do so without this consent will be null and void and a
default. Without limiting the generality of the foregoing, Tenant will not have
the right or power to Transfer any portion of the Premises or its rights therein
(e.g., Tenant's right to park in its parking areas) except pursuant and
incidental to a good faith and valid assignment of this Lease or a good faith
and valid sublease of a portion of the Building.
18.2 Notice. Tenant will notify Landlord in writing at least thirty (30)
------
days before any proposed or pending Transfer and will deliver to Landlord such
information as Landlord may reasonably request in connection with the proposed
or pending Transfer and the proposed Transferee, including, without limitation,
a copy of the proposed Transfer documents, financial statements and other
financial information about and banking references for the proposed Transferee,
and information as to the type of business and business experience of the
proposed Transferee. All of this information must be suitably authenticated.
18.3 Landlord's Right to Terminate. If Tenant notifies Landlord of a
-----------------------------
Transfer, or if Landlord becomes aware of a Transfer, Landlord may: consent;
withhold consent (subject to Sections 18.4 and 18.5 below); or terminate this
Lease on written notice to Tenant if the Transfer is an assignment of the Lease
other than to an Acquiring Entity, or a sublease of all or substantially all of
the Building. If Tenant proposes a sublease for a term longer than one year that
together with all other subleases would total more than fifty percent (50%) of
the rentable area of the Building if made, Landlord may terminate the Lease as
to the portion of the Building proposed to be sublet. If Landlord elects to
terminate, this Lease (or this Lease as applicable to the portion to be sublet
as described above) will terminate on the date set forth in Landlord's
termination notice. Nothing in this Section limits Landlord's rights or remedies
if Tenant is in default or if the Transfer does not comply with this Article.
18.4 Reasonable Consent. Subject to Section 18.5, if Landlord does not
------------------
elect (assuming it is permitted) to terminate this Lease, and if the request for
Transfer is given after the end of the first (1st) Lease Year, Landlord will not
unreasonably withhold its consent to an assignment or subletting (for purposes
of this Article, Landlord may arbitrarily withhold consent to other Transfers).
Tenant agrees that the withholding of Landlord's consent will be deemed
reasonable if Tenant is in default or has failed to comply with the rest of this
Article, or if any of the following conditions are not satisfied:
(a) The proposed assignee or subtenant will use the Premises strictly
in accordance with the terms of this Lease.
(ax) The business of the proposed assignee or subtenant is consistent
with the other uses and the standards of Minuteman Park, in Landlord's
reasonable judgment.
(b) The proposed assignee or subtenant is reputable, has a credit
rating reasonably acceptable to Landlord, and otherwise has sufficient
independent financial capabilities to perform all of its obligations under this
11
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Lease or the proposed sublease, in Landlord's reasonable judgment, and within
the two-year period prior to the Transfer has not been subject to a bankruptcy
or reorganization or any proceedings or court-ordered compliance in connection
therewith, or had a receiver managing any of its affairs or assets or been
subject to criminal judgments.
(c) Neither the proposed assignee or subtenant nor its Affiliates is
or has been a tenant or occupant or has negotiated for space in Minuteman Park,
or in other projects in Massachusetts currently owned by Landlord or a
partnership or corporation affiliated with Landlord or Niuna-400 River, Inc.,
Inc. or its current shareholders or officers (such other projects are currently
located in Andover, Wakefield and Billerica) within the six (6) month period
before the delivery of Tenant's written notice. This Subsection (c) will apply
only while 400 River Limited Partnership or an affiliated entity or an entity
affiliated with Niuna-400 River, Inc. or its current shareholders or officers
owns property in Minuteman Park or an interest therein.
(d) A proposed sublease will not result in more than three (3)
entities or businesses occupying the Building or the rest of the Premises.
These conditions are not exclusive and Landlord may consider other factors in
determining if it should grant or reasonably withhold its consent.
18.5 (a) Family Transfers. The Transfer of more than forty nine percent
----------------
(49%) Tenant's capital stock or ownership interests to any person or entity or
affiliated persons or entities, whether directly or indirectly or by one or more
transactions (other than by unrelated transactions on a public exchange, such as
the NYSE or NASDAQ), or any dissolution, merger, consolidation or other
reorganization of Tenant, or the Transfer of all or substantially all of
Tenant's assets, will be deemed to be an attempted assignment of this Lease and
subject to all of the terms of this Article 18 (except as specifically noted
below) and the rest of this Lease, and the Transferee or other party will be
deemed to be a prospective assignee. However, an assignment by Tenant to an
Acquiring Entity, or a sublease by Tenant to a Family Entity, will be deemed to
be a permitted assignment or sublease, as applicable, provided that the rest of
this Article 18 is complied with (although Sections 18.4(ax) and (b) will not
apply and Section 18.4(c) will apply only with respect to the Premises and other
projects located in Andover, Massachusetts [and Section 18.4(c) will not apply
at all in the case of a Transfer to the entity resulting from a merger between
Tenant and another tenant located in one of the projects specified in Section
18.4(c)], in each case as long as the purpose of the transaction was not to
avoid those or any other provisions of this Lease). Tenant agrees that, despite
any contrary agreements between Tenant and a Transferee or other acquiring
party, anything else to the contrary, even if this Lease is not assigned a
Transferee or other acquiring party of all or substantially all of Tenant's
other assets will be deemed to have assumed all of Tenant's Liabilities under
this Lease, and Tenant will make such Transferee or other acquiring party aware
of this provision. Sublessees do not have the right, power, authority to further
sub-sublease or otherwise Transfer all or any portion of or interest in the
space they sublease.
(b) A Transferee (which for these purposes shall exclude any sublessee
but shall include any assignee by contract, foreclosure, operation of law or
otherwise) will be deemed to have assumed all of Tenant's obligations and
Liabilities under this Lease (all of which shall be deemed to run with the land)
and will be deemed to be bound by this Lease, and Tenant and the assignee will
indemnify Landlord and hold it harmless from all Liabilities in connection with
the assignment. To confirm the foregoing, a prospective Transferee (other than a
sublessee) will be required to execute and deliver to Landlord an unconditional
written assumption of Tenant's Liabilities under this Lease and the indemnity
described above, and Tenant and the Transferee will be deemed to be jointly and
severally liable for all Liabilities of the tenant under this Lease and any
existing and future amendments thereto (although such a written assumption shall
not be required to establish the full liability of the Transferee for all of
Tenant's Liabilities under this Lease). A sublease will be deemed to be subject
and subordinate to this Lease in all respects. Tenant and the subtenant will
indemnify Landlord and hold it harmless from all Liabilities in connection with
the sublease. The subtenant will acquire no rights or claims against Landlord or
its Affiliates and will not have the right to enforce any of Tenant's rights and
remedies under this Lease against Landlord. If this Lease is terminated or
Landlord rightfully reenters or repossesses the Premises, Landlord may terminate
the sublease, or at its option, become the sublessor under the sublease and the
subtenant will attorn to Landlord, but Landlord will not be liable for Tenant's
acts or omissions, subject to any existing defenses or offsets against Tenant or
bound by any amendment to the sublease made without Landlord's prior written
consent. By entering into a sublease, Tenant and the sublessee agree that if the
sublessee breaches an obligation under its sublease which would also constitute
a default by Tenant under this Lease if not cured within applicable grace
periods, then Landlord will have all of the rights and remedies against the
subtenant that is also has against Tenant for such a default. Without limiting
the generality of the foregoing, Landlord will be permitted (by assignment of
the cause of action or otherwise) to join the Tenant in any action or proceeding
against subtenant or to proceed against the subtenant directly in the name of
Tenant to enforce these rights and remedies. Tenant will cooperate with Landlord
and execute such documents as may be reasonably necessary to implement these
rights granted to Landlord. The exercise of these rights and remedies will not
constitute an election of remedies and will not in any way impair Landlord's
right to pursue other or similar rights and remedies directly against Tenant,
nor will the grant or exercise of these rights or remedies result in the
subtenant acquiring any rights or claims against Landlord or its Affiliates.
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18.6 No Release of Tenant. Whether or not Landlord consents, no Transfer
--------------------
will release or alter the primary liability of Tenant to pay rent and perform
all of Tenant's other obligations under this Lease. The acceptance of rent by
Landlord from any person other than Tenant is not a waiver by Landlord. Consent
to one Transfer will not be deemed to be consent to any subsequent Transfer. If
any Transferee defaults under this Lease, Landlord may proceed directly against
the Transferee and/or against Tenant without proceeding or exhausting its
remedies against the other. After any Transfer, Landlord may consent to
subsequent Transfers of or amendments to this Lease without notifying Tenant or
any other person, without obtaining consent thereto, and without relieving
Tenant of liability under this Lease (as it may be modified), except that
Tenant's aggregate monetary liability under this Lease, as it may be modified,
will not be greater than it would have been under this Lease without the
modification.
18.7 Additional Terms. Tenant will pay Landlord's reasonable attorneys'
----------------
fees and other costs in connection with any request for Landlord's consent to a
Transfer. To be effective all assignments and subleases must always prohibit any
further assignment, subleasing or other Transfer and state that they are subject
and subordinate to the terms of this Lease. Subject to Section 18.5(a), while
400 River Limited Partnership or an affiliated entity or an entity affiliated
with Niuna-400 River, Inc. or its current shareholders or officers owns the
Premises or an interest therein, Tenant and its Affiliates will not, directly or
indirectly, take an assignment or sublease from, or otherwise occupy premises
leased to, any existing or future tenants (or their assignees, sublessees or
successors) of space in Minuteman Park, or in other projects in Massachusetts
owned by Landlord or a partnership or corporation affiliated with Landlord or
with Niuna-400 River, Inc. or its current shareholders or officers (such other
projects are currently located in Wakefield, Andover, and Billerica). The
surrender of this Lease or its termination will not be a merger, but Landlord
will have the right to terminate all subleases and the occupancy rights of all
Transferees. Tenant will pay to Landlord as additional rent: fifty percent (50%)
of all consideration as and when paid for or by reason of any assignment of this
Lease; and, in the case of a sublease, fifty percent (50%) of the amount by
which the sublease rent and other consideration as and when paid for the
sublease (less the sublessee's pro-rata payment of real estate taxes and
insurance, to the extent paid, and less reasonable costs paid by Tenant to
unaffiliated third parties specifically and directly for the sublease, such as
tenant improvement costs and brokerage commissions) exceeds the base rent for
the sublease term (pro rated for the square footage subleased). At Landlord's
option, Landlord may collect all or any part of this additional rent directly
from the payor, and consideration paid or payable will be defined in its
broadest sense.
19. MORTGAGEE PROTECTION.
--------------------
19.1 Subordination and Attornment. This Lease is subordinate to all
----------------------------
Superior Leases and Mortgages (defined in Section 24.4), and Tenant will attorn
to each person or entity that succeeds to Landlord's interest under this Lease,
provided that such person or entity agrees in writing not to disturb Tenant's
rights under this Lease as long as Tenant is not in default. This Section is
self-operative, but if requested to confirm a subordination, non-disturbance
and/or attornment, Tenant will execute the form subordination, non-disturbance
and attornment agreements furnished by the then-current lessor or mortgagee
under any of the Superior Leases and Mortgages (a "Landlord's Mortgagee") within
ten (10) days after request, provided that such agreements are not materially
more adverse to Tenant with respect to any of Tenant's substantive rights under
this Lease than any (or all) of the forms attached hereto as Exhibit "I."
However, if a Landlord's Mortgagee elects in writing, this Lease will be
superior to its Superior Lease and Mortgage specified, regardless of the date of
recording, and Tenant will execute an agreement confirming this election on
request.
19.2 Mortgagee's Liability. The obligations and Liabilities of Landlord,
---------------------
Landlord's Mortgagees or their successors under this Lease will exist only if
and for so long as each of these respective parties owns fee title to the
Premises or is the lessee under a ground lease of the Premises. Tenant will be
liable to Landlord's Mortgagees or their successors if any of those parties
become the owner of the Premises for any base rent paid more than thirty (30)
days in advance. Landlord's Mortgagees and their successors will not be liable
for: (a) acts or omissions of prior owners; (b) the return of any security
deposit or Letter of Credit not delivered or credited to them (and Landlord
agrees to deliver or credit Tenant's unapplied security deposit to Landlord's
Mortgagees if they succeed to Landlord's interest under this Lease); or (c)
amendments to this Lease made without their consent (if their consent is
required under a Superior Lease or Mortgage).
19.3 Mortgagee's Right to Cure. No act or omission (if any) which
-------------------------
otherwise entitles Tenant under the terms of this Lease to be released from any
Lease obligations or to terminate this Lease will result in such a release or
termination unless Tenant first gives written notice of the act or omission to
Landlord and Landlord's Mortgagees and those parties then fail to correct or
cure the act or omission within ninety (90) days thereafter, or such longer
period of time as may be commercially reasonable if necessary to allow the
Landlord's Mortgagees to acquire title to the Premises in order to cure the act
or omission. Nothing in this Section or the rest of this Lease obligates
Landlord's Mortgagees to correct or cure any act or omission or is meant to
imply that Tenant has the right to terminate this Lease or be released from its
obligations unless that right is explicitly granted elsewhere in this Lease.
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20. ESTOPPEL CERTIFICATES.
---------------------
Landlord or Tenant or Guarantor will from time to time, within fifteen (15)
days after request by the other, execute and deliver an estoppel certificate in
form satisfactory to the other which will certify (except as may be noted) such
information concerning this Lease and/or the Guaranty as the other may request.
21. DEFAULT.
-------
The occurrence of one or more of the following events will be a default by
Tenant under this Lease: (a) the abandoning of the Premises; (b) the failure to
pay rent or any other required amount within seven (7) days after written notice
that the payment is due; (c) as provided in Article 23; (cc) the failure to
comply with the terms of Article 25 within five (5) days after written notice;
(d) a Transfer in violation of Article 18; (dd) a default by the Guarantor under
its Guaranty; (ddd) as described in Section 24.17(b); (e) the failure to
maintain its required insurance policies within seven (7) days after written
notice (although Tenant still will pay and be responsible for all Liabilities
incurred by Landlord as a result of Tenant's failure to maintain its required
insurance policies, whether or not such failure is subsequently cured); or (f)
the failure to comply with or perform any other obligation, term or condition
for which there is a specified time for compliance or performance set forth in
this Lease within five (5) days after written notice of such failure; if no time
period is specified, it will be a default if this failure continues for fifteen
(15) days after written notice from Landlord to Tenant, but if more than fifteen
(15) days are reasonably required to cure, Tenant will not be in default if
Tenant begins to cure within the fifteen (15)-day period and then diligently
completes the cure as soon as possible but within ninety (90) days after the
notice of default is given (but this 90-day limitation will not apply if
Tenant's failure to comply involves its failure to complete structural repairs
if more than 90 days is reasonably required to diligently complete such
repairs). Whenever the term "default" is used in this Lease, it shall mean and
refer to a default as described in this Article 21, including applicable notice
and cure periods. If Tenant defaults, unless Landlord subsequently gives another
written notice of default to Tenant (provided that the original default
initially required Landlord to send a written notice as set forth above) and
Tenant fails to cure that default within ten (10) days after that subsequent
notice of default, Landlord will not have the right to terminate this Lease nor
will that default cause Tenant to lose its rights under Rider #1, Rider #2,
Rider #3, or with respect to the Additional Signs under Section 11(e) or with
respect to its right to have Landlord construct Expansion Parking for Tenant
pursuant to Section 15.2. At its option, Landlord will have the right to
withhold in whole or in part payment and/or performance of any its obligations
that are premised on the absence of a default until and unless such a cure is
tendered within that subsequent 10-day period. If Tenant fails to cure within
that subsequent 10-day period, Landlord will have the right to terminate if it
wishes, and in any case Tenant will lose those rights. Nothing in this Article
21 will be deemed to limit in any way Landlord's rights and remedies hereunder,
at law or in equity in connection with a default, and notwithstanding the
foregoing or anything else to the contrary, Landlord will not be required to
give that subsequent notice of default more than twice in any 12-month period if
the defaults involve the non-payment of money, and in such case Landlord's
single notice of default will suffice.
22. REMEDIES FOR DEFAULT.
--------------------
22.1 General. If Tenant defaults, Landlord may at any time thereafter,
-------
with or without notice or demand, do any or all of the following: (a) give
Tenant written notice stating that the Lease is terminated, effective on the
giving of notice or on a date stated in the notice, as Landlord may elect, in
which event this Lease will terminate without further action; (b) with or
without process of law or notice, and with or without terminating this Lease,
terminate Tenant's right of possession and enter and repossess the Building and
the rest of the Premises either by force or otherwise, and expel Tenant and
Tenant's Affiliates, and remove their property and effects, without being guilty
of trespass; and (c) pursue any other right or remedy now or hereafter available
to Landlord under this Lease or at law or in equity.
22.2 Tenant's Obligations. If any default, termination, reentry or
--------------------
dispossess occurs:
(a) All rent provided for in this Lease will become due and will be
paid to the time of the default, termination, reentry or dispossess, together
with such costs as Landlord may incur for attorneys' fees and costs, inspection,
brokerage fees, putting the Building and the rest of the Premises in good order,
condition and repair and/or for preparing and improving the Premises for re-
letting.
(b) Landlord may, at its sole option, re-let all or any portion of the
Building and the rest of the Premises on terms satisfactory to Landlord in its
sole discretion, either in its own name or otherwise, for a term or terms which
may, at Landlord's option, be more or less than the balance of the term of this
Lease and pursuant to one or more leases, and Landlord may grant concessions,
tenant allowances and/or free rent, among other things.
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(c) Subject to Section 22.2(e), whether or not the Building and the
rest of the Premises are re-let, Tenant will pay punctually to Landlord all of
the rent and other sums and perform all of Tenant's obligations for the entire
Lease term (assuming the original expiration date and any exercised options) in
the same manner and at the same time as if this Lease had not been terminated.
(d) If Landlord re-lets the Building or the rest of the Premises,
Tenant will be entitled to a credit in the net amount of the rent actually
received by Landlord from the re-letting, after deducting all expenses described
in Sections 22.2(a) and 22.2(f) and the costs of collecting the rent. Rent
received by Landlord after re-letting first will be applied against Landlord's
expenses as described above until those expenses are recovered. Until recovery
of those expenses, Tenant will pay as and when due all amounts it is required to
pay under this Lease. Tenant's obligations prior to any re-letting and recovery
of expenses will not be diminished even if the re-letting is for a rent higher
than the rent hereunder. When and if these expenses have been completely
recovered, and subject to the rest of this Section, amounts collected by
Landlord from the re-letting that have not previously been applied will be
credited against Tenant's obligations to the extent arising on or before the
date of collection by Landlord, and otherwise when each payment would fall due
under this Lease, and only the net amount thereof will be payable by Tenant.
Amounts received by Landlord from re-letting for any period will be credited
only against obligations of Tenant allocable to that period or periods prior
thereto, and not against Tenant's obligations accruing after that period, nor
will any credit be given to Tenant for amounts received by Landlord for any
period after the original expiration date of this Lease.
(e) At Landlord's option, in lieu of other damages, Landlord may, by
written notice to Tenant at any time after Tenant's default, elect to recover,
and Tenant will thereupon pay, as liquidated damages, an amount equal to the
excess, if any, of: (i) the present value (assuming a 7% discount rate) of the
total rent and other benefits which would have accrued to Landlord under this
Lease for the remainder of the Lease term (assuming the original expiration date
and any exercised Extension Options) if the default had not occurred plus all of
the expenses described in Sections 22.2(a) and 22.2(f); less (ii) the present
value (assuming a 7% discount rate) of the cash rental to be paid to Landlord
for any lease or leases of the Building or the rest of the Premises actually
executed by Landlord at the time Landlord exercises its option, subject to
Subsection (d) above.
(f) No action of Landlord in connection with any re-letting, or
failure to re-let or collect rent under such re-letting, will operate or be
construed to release or reduce Tenant's Liabilities hereunder. Without limiting
any of the foregoing provisions, and in addition to any other amounts that
Tenant is otherwise obligated to pay, Tenant agrees that Landlord may recover
from Tenant all costs and expenses, including attorneys' fees and costs,
incurred by Landlord in enforcing this Lease from and after Tenant's default.
22.3 Redemption. Tenant waives any and all rights of redemption granted by
----------
or under any Laws if Tenant is evicted or dispossessed for any cause, or if
Landlord obtains possession of the Building or the rest of the Premises by
reason of the violation by Tenant of any of the terms, covenants or conditions
of this Lease, or otherwise.
22.4 Performance by Landlord. If Tenant defaults or fails to perform any
-----------------------
of its obligations under this Lease, Landlord, without waiving or curing the
default or failure, may, but will not be obligated to, perform Tenant's
obligations for the account and at the expense of Tenant. Notwithstanding
Section 21(i), in the case of an emergency or to prevent damage or injury or
protect health, safety or property, Landlord need not give any notice before
performing Tenant's obligations. Tenant will pay on demand all costs and
expenses incurred by Landlord in connection with Landlord's performance of
Tenant's obligations, and Tenant will indemnify Landlord for and hold Landlord
harmless from all Liabilities incurred by Landlord in connection therewith.
22.5 Post-Judgment Interest. The amount of any judgment obtained by
----------------------
Landlord against Tenant in any legal proceeding arising out of Tenant's default
under this Lease will bear interest until paid at the Bank of America announced
prime rate plus two percent (2%), or the maximum rate permitted by law,
whichever is less. Notwithstanding anything to the contrary contained in any
Laws, with respect to any damages that are certain or ascertainable by
calculation, interest will accrue from the day that the right to the damages
vests in Landlord, and in the case of any unliquidated claim, interest will
accrue from the day the claim arose.
23. [SEE EXHIBIT "F"]
24. GENERAL PROVISIONS.
------------------
24.1 Holding Over. Tenant will not hold over in the Building or the rest
------------
of the Premises after the end of the Lease term without the express prior
written consent of Landlord. Tenant will indemnify Landlord for, and hold
Landlord harmless from, any and all Liabilities arising out of or in connection
with any holding over, including, without limitation, any claims made by any
succeeding tenant and any loss of rent suffered by Landlord. If, despite this
express agreement, any tenancy is created by Tenant's holding over, except as
specifically set forth in the next sentence the tenancy will be a tenancy at
sufferance terminable immediately at Landlord's sole option on written notice to
Tenant, but otherwise subject to the terms of this Lease, except that the most
recent annual base rent will be doubled. Nothing in
15
<PAGE>
this Article or elsewhere in this Lease permits Tenant to hold over or in any
way limits Landlord's other rights and remedies if Tenant holds over.
24.2 Entry By Landlord. Subject to rest of this Section, provided that
-----------------
Tenant makes a representative available on at least twenty four (24) hours prior
notice from Landlord, Landlord and its Affiliates will have the right to enter
the Ground Floor, rooftop penthouse, or generator secure areas of the Premises
only if accompanied by such representative, and in such cases Landlord will
comply with security procedures of Tenant, provided that they do not
unreasonably interfere with the exercise of Landlord's rights under this Lease.
Subject to the foregoing and the rest of this Section, Landlord and its
Affiliates at all times will have the right to enter the Premises, and Landlord
will retain (or be given by Tenant) keys to unlock all the doors to or within
the Premises, excluding doors to Tenant's vaults and files. Notwithstanding the
foregoing or anything else to the contrary, Landlord and its Affiliates will
have the right to use any means necessary to enter the Premises if Landlord
believes there is an emergency or that entry is necessary to prevent damage or
injury or protect health, safety or property, and in such event Landlord will be
required to give only such notice (if any) that it in good faith believes is
feasible under the circumstances and need not wait to be accompanied by Tenant
or its employees or representatives (although these parties may still accompany
Landlord if they are available and wish to do so). Such entry to the Premises
and the exercise of Landlord's rights will not, under any circumstances, be
deemed to be a default, a forcible or unlawful entry into or a detainer of the
Premises or an eviction of Tenant from the Premises or any portion thereof, nor
will it subject Landlord to any Liabilities or entitle Tenant to any
compensation, abatement of rent or other rights and remedies.
24.3 Brokers. Tenant represents and warrants that it has had no dealings
-------
with any agent, broker, finder or other person who is or might be entitled to a
commission or other fee from Landlord in connection with this or any related
transaction except for Tenant's Broker.
24.4 Quiet Enjoyment. So long as Tenant pays all rent and performs its
---------------
other obligations as required, Tenant may quietly enjoy the Building and the
rest of the Premises without hindrance or molestation by Landlord or any person
lawfully claiming through or under Landlord, subject to the terms of this Lease
and the terms of any Superior Leases and Mortgages, and all other agreements or
matters of record or to which this Lease is subordinate. As used in this Lease,
the term "Superior Leases and Mortgages" means all present and future ground
leases, underlying leases, mortgages, deeds of trust or other title exceptions,
and all renewals, modifications, consolidations, replacements or extensions
thereof and advances made thereunder, affecting all or any portion of the
Premises.
24.5 Security. Tenant is solely responsible for providing security for the
--------
Building and the rest of the Premises and Tenant's personnel. Without limiting
the generality of this Article, Tenant agrees that: (a) Landlord may, but will
not be required to, supply security personnel and systems for the Building or
the rest of the Premises, and remove or restrain unauthorized persons and
prevent unauthorized acts; (b) Landlord will incur no Liabilities for failing to
provide security personnel or systems or, if provided, for acts, omissions or
malfunctions of the security personnel or systems; and (c) Landlord and its
Affiliates make no representations or warranties of any kind in connection with
the security or safety of the Building or the rest of the Premises.
24.6 Obligations; Successors; Recordation. If Tenant consists of more than
------------------------------------
one person or entity, the obligations and liabilities of those persons or
entities are joint and several. Time is of the essence of this Lease. Subject to
the restrictions in Article 18, this Lease inures to the benefit of and binds
Landlord, Tenant and their respective Affiliates. Tenant will not record this
Lease but Tenant may record a memorandum of this Lease, in form satisfactory to
Landlord, to comply with the Massachusetts statutory notice provisions. If this
Lease expires or is terminated, this memorandum will be deemed null and void and
removed from title, and Tenant will execute and record such documents as may be
necessary to accomplish this at Landlord's request, and if Tenant refuses to do
so, Landlord may execute and record such documents in Tenant's name or in its
own name.
24.7 Late Charges. If any rent or other amounts payable by Tenant are not
------------
received within five (5) days after the due date, Tenant will pay to Landlord on
demand a late charge equal to five percent (5%) of the overdue amount, and if
not received within ten (10) days after the due date, the amounts also will bear
interest from the due date until paid at the interest rate in Section 22.5.
Collection of these late charges and interest will not: be a waiver or cure of
Tenant's default or failure to perform; be deemed to be liquidated damages, an
invalid penalty or an election of remedies; or prevent Landlord from exercising
any other rights and remedies.
24.8 Accord and Satisfaction. Payment by Tenant or acceptance by Landlord
-----------------------
of less than the full amount of rent due is not a waiver, but will be deemed to
be on account of amounts next due, and no endorsements or statements on any
check or any letter accompanying any check or payment will be deemed an accord
and satisfaction or binding on Landlord. Landlord may accept the check or
payment without prejudice to any of Landlord's rights and remedies, including,
without limitation, the right to recover the full amount due.
24.9 Prior Agreements; Amendments; Waiver. This Lease is an integrated
------------------------------------
document and contains all of the agreements of the parties with respect to any
matter covered or mentioned in this Lease, and supersedes all prior
16
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agreements or understandings relating to the subject matter herein. This Lease
may not be amended except by an agreement in writing signed by the parties. All
waivers must be in writing, specify the act or omission waived and be signed by
Landlord. No other alleged waivers will be effective, including, without
limitation, Landlord's acceptance of rent, collection of a late charge or
application of a security deposit. Landlord's waiver of any specific act,
omission, term or condition will not be a waiver of any other or subsequent act,
omission, term or condition.
24.10 Representations; Inability to Perform. Landlord and its Affiliates
-------------------------------------
have not made, and Tenant is not relying on, any representations or warranties
of any kind, express or implied, with respect to the Premises or this
transaction. Landlord will not be in default nor incur any Liabilities if it
can't fulfill any of its obligations, or is delayed in doing so, because of
accidents, breakage, strike, labor troubles, war, sabotage, governmental
regulations or controls, inability to obtain materials or services, acts of God,
or any other cause, whether similar or dissimilar, beyond Landlord's reasonable
control (i.e., "force majeure"); provided, however, that this will not be deemed
to extend the time periods in Sections 2(a) or Article 16, except to the extent
that extension for force majeure is specifically permitted as provided therein.
24.11 Legal Proceedings. In any action or proceeding involving or
-----------------
relating in any way to this Lease, the court or other person or entity having
jurisdiction in such action or proceeding will award to the party in whose favor
judgment is entered the actual attorneys' fees and costs incurred. Tenant also
will indemnify Landlord for, and hold Landlord harmless from and against, all
Liabilities incurred by Landlord if Landlord becomes or is made a party to any
proceeding or action: (a) involving Tenant and any third party, or by or against
any person holding any interest under or using the Building or the rest of the
Premises by license of or agreement with Tenant (except and strictly to the
extent that Landlord is finally determined to be a joint tortfeasor with Tenant
against such third party); or (b) necessary to protect Landlord's interest under
this Lease in a proceeding under the Bankruptcy Code. Unless prohibited by law,
Tenant waives the right to trial by jury in all actions involving or related to
this Lease, the Premises or any collateral or subsequent agreements between the
parties, and any right to impose a counterclaim in any proceeding brought for
possession of the Premises as a result of Tenant's default. Tenant also submits
to and agrees not to contest the sole and exclusive jurisdiction of the state
and federal courts located in Massachusetts to adjudicate all matters in
connection with this Lease or involving Landlord or Landlord's Affiliates in any
way, and Tenant agrees that it will bring all suits and actions only in such
Massachusetts courts and not to seek a change of venue. Service on any one or
more of the individuals comprising Tenant will conclusively be deemed service on
all of those individuals. In any circumstance where Tenant is obligated to
indemnify or hold harmless Landlord under this Lease, that obligation also will
run in favor of Landlord's Affiliates, and will include the obligation to
protect Landlord and its Affiliates, and defend them with counsel acceptable to
Landlord, and Tenant will pay when due all attorneys' fees and costs. These
obligations to indemnify, hold harmless, protect and defend will survive the
expiration or termination of this Lease.
24.12 Ownership; Invalidity; Remedies; Choice of Law. As used in this
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Lease, the term "Landlord" means only the current owner or owners of the fee
title to the Premises. Upon each conveyance (whether voluntary or involuntary)
of fee title, the conveying party will be relieved of all Liabilities and
obligations contained in or derived from this Lease or arising out of any act,
occurrence or omission occurring after the date of such conveyance. Landlord may
Transfer all or any portion of its interests in this Lease or the Premises
without affecting Tenant's obligations and Liabilities under this Lease. Tenant
has no right, title or interest in the name of the Building or the Premises, and
may use these names only to identify its location. Any provision of this Lease
which is invalid, void or illegal will not affect, impair or invalidate any of
the other provisions and the other provisions will remain in full force and
effect. Landlord's rights and remedies are cumulative and not exclusive. This
Lease is governed by the laws of Massachusetts applicable to transactions to be
performed wholly therein.
24.13 Expense; Consent. Unless otherwise provided in this Lease, a
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party's obligation will be performed at that party's sole cost and expense,
except when Landlord is performing Tenant's obligations because of Tenant's
default or failure to perform or as otherwise permitted in this Lease. Except
where it is expressly provided that Landlord will not unreasonably withhold its
consent or approval or exercise its judgment reasonably, Landlord may grant or
withhold its consent or approval and exercise its judgment arbitrarily and in
its sole and absolute discretion and without dispute by Tenant. In any dispute
involving Landlord's withholding of consent or exercise of judgement, the sole
right and remedy of Tenant and its Affiliates is declaratory relief (i.e., that
such consent should be granted where Landlord has agreed not to unreasonably
withhold its consent) pursuant to arbitration in Massachusetts conducted by the
American Arbitration Association utilizing its expedited arbitration procedures,
and Tenant and its Affiliates waive all other rights and remedies, including,
without limitation, claims for damages.
24.14 Presumptions; Exhibits; Submission; Net Lease. This Lease will be
---------------------------------------------
construed without regard to any presumption or other rule requiring construction
or interpretation against the party drafting the document. The titles to the
Articles and Sections of this Lease are not a part of this Lease and will have
no effect on its construction or interpretation. Whenever required by the
context of this Lease, the singular includes the plural and the plural includes
the singular, and the masculine, feminine and neuter genders each include the
others, and the word "person" includes individuals, corporations, partnerships
or other entities. All exhibits and riders attached to this Lease are
incorporated in this Lease by this reference, and if there is any conflict with
the rest of this Lease, the riders will control. The
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submission of this Lease to Tenant or its broker, agent or attorney for review
or signature is not an offer to Tenant to lease the Premises or the grant of an
option to lease to Premises. This Lease will not be binding unless and until it
is executed and delivered by both Landlord and Tenant. This Lease is intended to
be a completely "triple net" lease, unless specifically otherwise provided in
this Lease.
24.15 Cooperation. Tenant will, at its expense, cooperate with Landlord
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in all respects in connection with this Lease, Landlord's ownership, operation,
management, improvement, maintenance and repair of the Premises, and Landlord's
exercise of its rights and obligations under this Lease.
24.16 Notices. All notices, demands or communications required or
-------
permitted under this Lease (the "Notices") will be in writing and personally (by
hand or recognized overnight courier) or electronically delivered, or sent by
certified mail, return receipt requested, postage prepaid. Notices to Tenant
will be delivered to the address for Tenant in Section 1.1. Notices to Landlord
will be delivered to the addresses for Landlord in Section 1.1. Notices will be
effective on the earlier of: delivery; or, if mailed, three (3) days after they
are mailed in accordance with this Section.
24.17 Letter of Credit.
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(a) On or before the initial funding of the Construction Loan,
Tenant will obtain and deliver to Landlord an irrevocable, unconditional standby
letter of credit in accordance with the terms and conditions of this Section
(the "Letter of Credit"). The Letter of Credit will be in the amount of $4
Million, will be issued initially by _____________________________________ (or
its successor) and subsequently by any issuer that meets the criteria in Section
24.17(e), will name Landlord (or, at Landlord's request from time to time, a
current lender to Landlord) as the beneficiary thereof and will have an initial
term of at least one (1) year and, with renewals, an aggregate term (as renewed)
as set forth below. The terms of the Letter of Credit shall be as set forth in
this Section 24.17 and in form reasonably acceptable to the beneficiary thereof.
The beneficiary shall have the right to draw under the Letter of Credit on one
or more occasions from time to time during its term and in accordance with the
terms hereof simply upon presentation to the issuer of a sight draft executed by
the beneficiary or its authorized representative and without further condition,
and the issuer shall pay upon presentation of such draft without deduction or
offset of any type. The Letter of Credit shall be assignable in whole but not in
part, and at Landlord's request from time to time, it shall be reissued in favor
of a new beneficiary in accordance with the terms of this Lease.
(b) Each loan obtained from time to time by Landlord which is
secured by the Letter of Credit (other than the initial mortgage construction
loan) sometimes is referred to as the "Letter of Credit Loan." Until and unless
the Letter of Credit is drawn upon, starting as of one (1) year after the Rent
Commencement Date, and on each annual anniversary thereafter (or, if the Letter
of Credit Loan has not funded within one (1) year after the Commencement Date,
then starting as of fourteen (14) months after the Rent Commencement Date, and
on each annual anniversary thereafter), the face amount of the Letter of Credit
shall be reduced in an amount equal to the annual principal reduction that would
result from a direct reduction loan amortization schedule, assuming an interest
rate equal to the interest rate used to calculate principal amortization under
the Letter of Credit Loan (such schedule to be provided or approved by the
lender of the Letter of Credit Loan), which will have the effect of reducing the
Letter of Credit to zero over the initial term of the Lease (as it may be
extended pursuant to Section 4(b)) . However, subject to the foregoing sentence
but notwithstanding anything else to the contrary, even if the Letter of Credit
has been drawn upon, if and to the extent that those amounts are repaid to
Tenant, Tenant shall thereupon cause the face amount (and thus the amount that
may again be drawn) under the Letter of Credit to be increased by an amount
equal to the amount so repaid, but the face amount will not be more than what it
would have been absent such draw and repayment . (For example, if $500,000 were
to be validly drawn under the Letter of Credit at a time when its face amount is
$4 Million, and if that $500,000 were then repaid to Tenant, the face amount and
the amount that could be drawn under the Letter of Credit again would be $4
Million.) Tenant shall cause the Letter of Credit to be renewed continuously on
the same terms as described above for successive one (1)-year terms (or longer
terms) so that the Letter of Credit is continuously maintained for a term
expiring at the end of the initial term of the Lease (as it may be extended
pursuant to Section 4(b)). Each succeeding Letter of Credit shall be effective
on or before the date that the then-existing Letter of Credit expires. Tenant's
failure to deliver these renewals of the Letter of Credit to the beneficiary at
least thirty (30) days prior to each expiration date shall be a default under
this Lease, and at the beneficiary's option, and notwithstanding anything to the
contrary, the beneficiary shall have the immediate right thereon and thereafter
to draw under the Letter of Credit for all or any portion thereof; provided,
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however, that if Tenant delivers the required renewal of the Letter of Credit to
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the beneficiary before the expiration of the existing Letter of Credit and
---
before the beneficiary has drawn under the existing Letter of Credit, then
Tenant shall be deemed to have cured such default.
(c) The Letter of Credit is security for the timely payment and
performance of all of Tenant's Liabilities in connection with this Lease,
including, without limitation, Tenant's obligation to pay base rent and
additional rent, and the obligations under Landlord's loan(s) to the extent
secured thereby. If Tenant defaults under this Lease or there is a default under
such loan(s) or if otherwise permitted under the loan documents, the beneficiary
may, but shall not be obligated to, draw under the Letter of Credit on one or
more occasions, and the beneficiary's draw(s) under or failure to draw down all
or any portion of the Letter of Credit in any particular instance will not be
deemed to be a waiver
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or election of any rights and remedies of any type, a limitation on Landlord's
or the beneficiary's right to damages, a payment of liquidated damages or an
accord or satisfaction.
(d) [INTENTIONALLY OMITTED]
(e) Tenant shall cause the Letter of Credit to be replaced by a
Letter of Credit issued by another recognized bank located and in good standing
in the New England area of the United States that meets the financial criterion
described below and is otherwise reasonably acceptable to the beneficiary: (i)
on demand by the beneficiary if the issuer ever fails to meet the financial
criterion described below; or (ii) if Tenant wishes to replace the Letter of
Credit with a Letter of Credit issued by another bank. The financial criterion
referred to above is the requirement that the issuer will maintain ratings from
Moody's and Standard & Poor's at least equal to those enjoyed by the initial
issuer of the Letter of Credit on the date that the Letter of Credit is
initially issued. The beneficiary shall have the immediate right thereon and
thereafter to draw under the Letter of Credit for all or any portion thereof if
the Letter of Credit is not replaced as and when required by an issuer meeting
the financial criterion referred to above.
(f) In addition to the other circumstances set forth in this Lease
pursuant to which the beneficiary of the Letter of Credit may draw thereunder,
the beneficiary may draw under the Letter of Credit in accordance with the terms
of Exhibit "H" or terms substantially similar thereto.
(g) If Landlord defaults under any loan which is secured by the
Letter of Credit, and if as a result thereof the lender under such loan draws
under the Letter of Credit, and if Landlord's default and/or such draws did not
result in whole or in any material part from Tenant's breach of its obligations
under this Lease (including, without limitation, a failure to comply with the
terms of this Section 24.17) and Tenant is not in default, and if the amount so
drawn is not repaid to Tenant within thirty (30) days after written notice from
Tenant or at Landlord's option credited against amounts owed by Tenant to
Landlord, then the amount so drawn (the "LC Amount") will be treated as a loan
made by Tenant to Landlord, which will be repayable on the terms set forth
below:
(i) The outstanding balance from time to time of the LC
Amount will bear interest at a rate equal to the scheduled interest rate payable
to the lender whose loan is in default (i.e., not any so-called "Default Rate"
or penalty rate thereunder). Subject to the terms of this Subsection (g),
payments to Tenant will be made monthly in an amount equal to: (x) the base rent
paid by Tenant under the Lease for that month; less an amount equal to (y) the
amount owed (if any) for that month by Landlord under any mortgage loan(s)
encumbering the Premises and under any remaining loan(s) secured by the Letter
of Credit plus one twelfth (1/12) of the annual amounts owed (if any) by
Landlord, or required by Landlord's lenders, for taxes, insurance, operating
costs, repairs and maintenance and other similar costs related to the Premises
to the extent not paid by Tenant under the Lease. Amounts not paid when due will
accrue and bear interest at the rate set forth above. The unpaid balance of the
LC Amount, together with any accrued and unpaid interest, will be due and
payable in full on the earlier of: any sale of the Premises; or within thirty
(30) days after the expiration or earlier termination of this Lease other than
because of Tenant's default. Payments made by Landlord to Tenant hereunder will
not be subject to recall or repayment by Tenant.
(ii) All payments owed by Landlord to Tenant will be subject
and subordinate in all respects to the prior payment in full of all amounts then
due under any mortgage loan(s) encumbering the Premises and any loan(s) secured
by the Letter of Credit. Under no circumstances will Landlord be in default
under the Lease by reason of any default by Landlord under any loans or by
reason of Landlord's failure to make any payments owed to Tenant hereunder
(although Landlord still will have the obligation to repay the LC Amount), and
Tenant will not have the right to offset against amounts payable by Tenant under
the Lease any amounts due from Landlord nor will it have the right to terminate
this Lease nor will any of its Liabilities under the Lease be waived, excused or
otherwise affected.
(iii) Notwithstanding anything herein or elsewhere to the
contrary, the obligation to repay all or any portion of the LC Amount and any
interest or other charges in connection therewith will not be binding on nor
will it be applicable to Landlord's lenders or their respective successors or
assigns or their respective purchasers or Affiliates.
24.17A Additional Security.
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(a) On at least ten (10) days' prior written notice, and thereafter
throughout the Lease term (as it may be extended), Tenant will provide |
