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Exhibit 10.8
91 HARTWELL AVENUE
LEXINGTON, MASSACHUSETTS
Lease Dated January 13, 2005
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in a
certain building (the "Building") known as, and with an address at, 91 Hartwell
Avenue, Lexington, Massachusetts.
The parties to this Indenture of Lease hereby agree with each other as
follows:
ARTICLE I
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REFERENCE DATA
--------------
1.1 SUBJECTS REFERRED TO.
---------------------
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this
Article:
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Landlord: Mortimer B. Zuckerman and Edward H. Linde, Trustees
of 91 Hartwell Avenue Trust under Declaration of
Trust dated September 28, 1981 filed with the
Middlesex South Registry as Document No. 616455 as
amended by instruments dated December 10, 1984 and
April 17, 1991 respectively filed with said Registry
District as Document Nos. 675674 and 844541 but not
individually.
Landlord's Original Address: c/o Boston Properties Limited Partnership
111 Huntington Avenue, Suite 300
Boston, Massachusetts 02199-7610
Landlord's Construction Representative: Michael Schumacher
Tenant: Synta Pharmaceuticals, Inc., a Delaware corporation.
Tenant's Original Address: 45 Hartwell Avenue
Lexington, Massachusetts 02421
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Tenant's Construction Representative:
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Commencement Date: January 15, 2005
Second Floor Premises Rent February 15, 2005
Commencement Date:
Third Floor Premises Rent July 1, 2005
Commencement Date:
Original Term: Twenty-five (25) calendar months (plus
the partial month, if any, immediately
following the Commencement Date),
unless extended or sooner terminated as
provided in this Lease.
Extension Option: One (1) period of one (1) year as provided in and on
the terms set forth in Section 2.4.1 hereof.
Term or Lease Term: All references in this Lease or to the Term
or Lease Term shall mean the Original Term
and if extended pursuant to Section 2.4.1, the Original
Term as extended by the exercise of the extension option
unless otherwise specifically provided in this Lease.
The Site: That certain parcel of land known as and numbered 91
Hartwell Avenue, Lexington, Middlesex Count, Massachusetts,
being more particularly described in Exhibit A attached
hereto. The Building (as defined below) is the only structure
located on the Site.
The Building: The Building known as and numbered 91 Hartwell
Avenue, Lexington, Massachusetts.
The Complex: The Building together with all surface parking areas,
the Site and all improvements (including landscaping)
thereon and thereto.
Tenant's Space: A portion of the second (2nd) floor of the Building
(the "Second Floor Premises") and a portion of the
third (3rd) floor of the Building (the "Third Floor
Premises"), in
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accordance with the floor plan annexed
hereto as Exhibit D and incorporated herein by
reference.
Number of Parking Spaces: Seventy-six (76) spaces.
Annual Fixed Rent: (a) With respect to the Second Floor Premises, for
the period commencing on the Second Floor Premises
Rent Commencement Date and ending on the last day of
the Original Term of this Lease at the annual rate of
$268,398.00, being the product of (i) $19.50 and (ii)
the "Rentable Floor Area of the Second Floor
Premises" (hereinafter defined in this Section 1.1).
(b) With respect to the Third Floor Premises, for the
period commencing on the Third Floor Premises Rent
Commencement Date and ending on the last day
of the Original Term of this Lease at the annual rate of
$157,326.00, being the product of (i) $19.50
and (ii) the "Rentable Floor Area of the Third Floor
Premises" (hereinafter defined in this Section 1.1).
(c) During the extension option period (if
exercised), as determined pursuant to Section 2.4.1).
Operating Expenses: As provided in Section 2.6 hereof.
Real Estate Taxes: As provided in Section 2.7 hereof.
Tenant Electricity: Initially as provided in Section 2.5 subject to
adjustment as provided in Section 2.8 hereof.
Additional Rent: All charges and other sums payable by Tenant as set
forth in this Lease, in addition to Annual Fixed Rent.
Rentable Floor Area of Tenant's Space 21,832 rentable square feet, consisting of 13,764
(sometimes also called "Rentable Floor square feet of rentable floor area in the Second
Area of the Premises"): Floor Premises (the "Rentable Floor Area of the
Second Floor Premises") and 8,068 square feet of
rentable floor area in the Third Floor Premises (the
"Rentable Floor Area of the Third Floor Premises").
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Total Rentable Floor Area of the Building: 122,328 rentable square feet.
Permitted Use: General office purposes.
Initial Minimum Limits of Tenant's $5,000,000.00 combined single limit per occurrence on
Commercial General Liability Insurance: a per location basis.
Broker: Richards Barry Joyce & Partners
53 State Street, 29th Floor
Boston, Massachusetts 02110
Security Deposit: $35,477.00
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1.2 EXHIBITS.
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There are incorporated as part of this Lease:
Exhibit A -- Description of Site
Exhibit B -- Intentionally Omitted
Exhibit C -- Landlord's Services
Exhibit D -- Floor Plan
Exhibit E -- Intentionally Omitted
Exhibit F -- Form of Lien Waivers
1.3 TABLE OF ARTICLES AND SECTIONS.
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ARTICLE I.......................................................................................1
REFERENCE DATA..................................................................................1
1.1 SUBJECTS REFERRED TO..........................................................1
1.2 EXHIBITS......................................................................4
1.3 TABLE OF ARTICLES AND SECTIONS................................................4
ARTICLE II......................................................................................6
BUILDING, PREMISES, TERM AND RENT...............................................................6
2.1 THE PREMISES..................................................................6
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2.2 RIGHTS TO USE COMMON FACILITIES...............................................6
2.3 LANDLORD'S RESERVATIONS.......................................................7
2.4 HABENDUM......................................................................8
2.5 FIXED RENT PAYMENTS...........................................................8
2.6 OPERATING EXPENSES............................................................9
2.7 REAL ESTATE TAXES............................................................11
2.8 TENANT ELECTRICITY...........................................................14
ARTICLE III....................................................................................15
CONDITION OF PREMISES; ALTERATIONS.............................................................15
3.1 CONDITION OF PREMISES........................................................15
3.2 QUALITY AND PERFORMANCE OF WORK..............................................15
3.3 SPECIAL ALLOWANCE............................................................15
ARTICLE IV.....................................................................................16
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS.................................................16
4.1 LANDLORD COVENANTS:..........................................................16
4.2 INTERRUPTIONS AND DELAYS IN SERVICES AND REPAIRS, ETC........................17
ARTICLE V......................................................................................18
TENANT'S COVENANTS.............................................................................18
5.1 PAYMENTS.....................................................................18
5.2 REPAIR AND YIELD UP..........................................................18
5.3 USE..........................................................................18
5.4 OBSTRUCTIONS; ITEMS VISIBLE FROM EXTERIOR; RULES AND REGULATIONS.............19
5.5 SAFETY APPLIANCES............................................................19
5.6 ASSIGNMENT; SUBLEASE.........................................................19
5.7 INDEMNITY; INSURANCE.........................................................25
5.8 PERSONAL PROPERTY AT TENANT'S RISK...........................................26
5.9 RIGHT OF ENTRY...............................................................26
5.10 FLOOR LOAD; PREVENTION OF VIBRATION AND NOISE................................27
5.11 PERSONAL PROPERTY TAXES......................................................27
5.12 COMPLIANCE WITH LAWS.........................................................27
5.13 PAYMENT OF LITIGATION EXPENSES...............................................27
5.14 ALTERATIONS..................................................................28
5.15 VENDORS......................................................................29
ARTICLE VI.....................................................................................30
CASUALTY AND TAKING............................................................................30
6.1 DAMAGE RESULTING FROM CASUALTY...............................................30
6.2 UNINSURED CASUALTY...........................................................31
6.3 RIGHTS OF TERMINATION FOR TAKING.............................................31
6.4 AWARD........................................................................32
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ARTICLE VII....................................................................................32
DEFAULT 32
7.1 TENANT'S DEFAULT.............................................................32
7.2 LANDLORD'S DEFAULT...........................................................36
ARTICLE VIII...................................................................................37
MISCELLANEOUS PROVISIONS.......................................................................37
8.1 EXTRA HAZARDOUS USE..........................................................37
8.2 WAIVER.......................................................................37
8.3 CUMULATIVE REMEDIES..........................................................37
8.4 QUIET ENJOYMENT..............................................................38
8.5 NOTICE TO MORTGAGEE AND GROUND LESSOR........................................39
8.6 ASSIGNMENT OF RENTS..........................................................39
8.7 SURRENDER....................................................................40
8.8 BROKERAGE....................................................................40
8.9 INVALIDITY OF PARTICULAR PROVISIONS..........................................40
8.10 PROVISIONS BINDING, ETC......................................................40
8.11 RECORDING....................................................................41
8.12 NOTICES......................................................................41
8.13 WHEN LEASE BECOMES BINDING...................................................42
8.14 SECTION HEADINGS.............................................................42
8.15 RIGHTS OF MORTGAGEE..........................................................42
8.16 STATUS REPORTS AND FINANCIAL STATEMENTS......................................43
8.17 SELF-HELP....................................................................43
8.18 HOLDING OVER.................................................................44
8.19 NON-SUBROGATION..............................................................44
8.20 SECURITY DEPOSIT.............................................................44
8.21 LATE PAYMENT.................................................................45
8.22 TENANT'S PAYMENTS............................................................45
8.23 WAIVER OF TRIAL BY JURY......................................................46
8.24 GOVERNING LAW................................................................46
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ARTICLE II
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BUILDING, PREMISES, TERM AND RENT
---------------------------------
2.1 THE PREMISES.
Landlord hereby demises and leases to Tenant, and Tenant hereby hires
and accepts from Landlord, Tenant's Space in the Building excluding
exterior faces of exterior walls, the common stairways and stairwells,
elevators and elevator wells, fan rooms, electric and telephone
closets, janitor closets, and pipes, ducts, conduits, wires and
appurtenant fixtures serving exclusively, or in common, other parts of
the Building, and if Tenant's Space includes less than the entire
rentable area of any floor, excluding the common corridors, elevator
lobbies and toilets located on such floor.
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Tenant's Space with such exclusions is hereinafter referred to as the
"Premises." The term "Building" means the Building identified on the
first page, and which is the subject of this Lease; the term "Site"
means all, and also any part of the Land described in Exhibit A, plus
any additions or reductions thereto resulting from the change of any
abutting street line and all parking areas and structures. The term
"Property" means the Building and the Site.
2.2 RIGHTS TO USE COMMON FACILITIES.
-------------------------------
Subject to Landlord's right to change or alter any of the following in
Landlord's discretion as herein provided, Tenant shall have, as
appurtenant to the Premises, the non-exclusive right to use in common
with others, subject to reasonable rules of general applicability to
tenants of the Building from time to time made by Landlord of which
Tenant is given notice (a) the common lobbies, corridors, stairways,
elevators and loading area of the Building, and the pipes, ducts,
conduits, wires and appurtenant meters and equipment serving the
Premises in common with others, (b) common walkways and driveways
necessary for access to the Building, and (c) if the Premises include
less than the entire rentable floor area of any floor, the common
toilets, corridors and elevator lobby of such floor. Notwithstanding
anything to the contrary herein, Landlord has no obligation to allow
any particular telecommunication service provider to have access to the
Building or to the Premises except as may be required by applicable
law. If Landlord permits such access, Landlord may condition such
access upon the payment to Landlord by the service provider of fees
assessed by Landlord in its sole discretion.
2.2.1 TENANT'S PARKING.
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In addition, Tenant shall have the right to use the Number of
Parking Spaces (referred to in Section 1.1) of the parking
area, in common with use by other tenants from time to time of
the Complex; provided, however, Landlord shall not be
obligated to furnish stalls or spaces in any parking area
specifically designated for Tenant's use. Tenant covenants and
agrees that it and all persons claiming by, through and under
it, shall at all times abide by all reasonable rules and
regulations promulgated by Landlord with respect to the use of
the parking areas on the Site. The parking privileges granted
herein are non-transferable except to a permitted assignee or
subtenant as provided in Section 5.6 through Section 5.6.6.
Further, Landlord assumes no responsibility whatsoever for
loss or damage due to fire, theft or otherwise to any
automobile(s) parked on the Site or to any personal property
therein, however caused, and Tenant covenants and agrees, upon
request from Landlord from time to time, to notify its
officers, employees, agents and invitees of such limitation of
liability. Tenant acknowledges and agrees that a license only
is hereby granted, and no bailment is intended or shall be
created.
2.3 LANDLORD'S RESERVATIONS.
-----------------------
Landlord reserves the right from time to time, without unreasonable
interference with Tenant's use: (a) to install, use, maintain, repair,
replace and relocate for service to the Premises and other parts of the
Building, or either, pipes, ducts, conduits, wires and
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appurtenant fixtures, wherever located in the Premises or Building,
and (b) to alter or relocate any other common facility, provided that
substitutions are substantially equivalent or better. Installations,
replacements and relocations referred to in clause (a) above shall be
located so far as practicable in the central core area of the
Building, above ceiling surfaces, below floor surfaces or within
perimeter walls of the Premises. Except in the event of an emergency,
Landlord shall provide Tenant with forty-eight (48) hours advance
notice of the above-referenced work if such work shall adversely
affect Tenant's use of or access to the Premises, the common areas of
the Site and/or the parking area.
2.4 HABENDUM.
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Tenant shall have and hold the Premises for a period commencing on the
Commencement Date, and continuing for the Term unless sooner terminated
as provided in Article VI or Article VII or unless extended as provided
in Section 2.4.1.
2.4.1 EXTENSION OPTION.
----------------
(A) On the conditions (which conditions Landlord may waive by
written notice to Tenant) that both at the time of exercise of
the option to extend and at the commencement date of the
extension option period (i) there exists no Event of Default
(defined in Section 7.1), (ii) this Lease is still in full
force and effect, and (iii) Tenant has not assigned this
(except for an assignment permitted without Landlord's consent
under Section 5.6.1 hereof), Tenant shall have the right to
extend the Term hereof upon all the same Annual Fixed Rent,
terms, conditions, covenants and agreements herein contained
(except that the only extension option shall be as set forth
in this Section 2.4.1) for one (1) period of one (1) year as
hereinafter set forth. Such option period is sometimes herein
referred to as an "Extended Term." Notwithstanding any
implication to the contrary Landlord has no obligation to make
any additional payment to Tenant in respect of any
construction allowance or the like or to perform any work to
the Premises as a result of the exercise by Tenant of such
option.
(B) If Tenant desires to exercise the option to extend the
Term, then Tenant shall give notice to Landlord, not earlier
than twelve (12) months nor later than six (6) months prior to
the expiration of the Original Term. Upon the giving of such
notice, this Lease and the Term hereof shall be extended for
the option period, without the necessity for the execution of
any additional documents (except that Landlord and Tenant
agree to enter into an instrument in writing setting forth the
fixed rent); and in such event all references herein to the
Term or the term of this Lease shall be construed as referring
to the Term, as so extended, unless the context clearly
otherwise requires.
2.5 FIXED RENT PAYMENTS.
-------------------
Tenant agrees to pay to Landlord, or as directed by Landlord, at
Landlord's Original Address specified in Section 1.1 hereof, or at such
other place as Landlord shall from time to time designate by notice,
(1)(a) on the Second Floor Premises Rent
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Commencement Date with respect to the Second Floor Premises and on the
Third Floor Premises Rent Commencement Date with respect to the Third
Floor Premises, respectively, and thereafter monthly, in advance, on
the first day of each and every calendar month during the Original
Term, a sum equal to one twelfth (1/12th) of the applicable Annual
Fixed Rent (sometimes hereinafter referred to as "fixed rent") and (b)
on the Commencement Date and thereafter monthly, in advance, on the
first day of each and every calendar month during the Original Term, a
sum equal to one twelfth (1/12th) of $1.00 per annum for each square
foot of Rentable Floor Area of Tenant's Space for tenant electricity
subject to escalation as provided in Section 2.8 and (2) on the first
day of each and every calendar month during the extension option
period (if exercised), a sum equal to (a) one twelfth (1/12th) of the
Annual Fixed Rent as determined in Section 2.4.1 for the extension
option period plus (b) then applicable monthly electricity charges
(subject to escalation for electricity as provided in Section 2.8
hereof). Until notice of some other designation is given, fixed rent
and all other charges for which provision is herein made shall be paid
by remittance to or for the order of Boston Properties Limited
Partnership, Agents at P.O. Box 3557, Boston, Massachusetts
02241-3557, and all remittances received by Boston Properties Limited
Partnership, as Agents as aforesaid, or by any subsequently designated
recipient, shall be treated as payment to Landlord.
Annual Fixed Rent for any partial month shall be paid by Tenant to
Landlord at such rate on a pro rata basis, and, if the Second Floor
Premises Rent Commencement Date and/or the Third Floor Premises Rent
Commencement Date are a day other than the first day of a calendar
month, the first payment of Annual Fixed Rent which Tenant shall make
to Landlord shall be a payment equal to a proportionate part of such
monthly Annual Fixed Rent for the partial month from the Second Floor
Premises Rent Commencement Date and/or the Third Floor Premises Rent
Commencement Date, as applicable, to the first day of the succeeding
calendar month.
Additional Rent payable by Tenant on a monthly basis, as hereinafter
provided, likewise shall be prorated, and the first payment on account
thereof shall be determined in similar fashion but shall commence on
the Commencement Date; and other provisions of this Lease calling for
monthly payments shall be read as incorporating this undertaking by
Tenant.
Notwithstanding that the payment of Annual Fixed Rent payable by Tenant
to Landlord with respect to the Second Floor Premises shall not
commence until the Second Floor Premises Rent Commencement Date and
with respect to the Third Floor Premises shall not commence until the
Third Floor Premises Rent Commencement Date, respectively, Tenant shall
be subject to, and shall comply with, all other provisions of this
Lease as and at the times provided in this Lease.
The Annual Fixed Rent and all other charges for which provision is
herein made shall be paid by Tenant to Landlord, without offset,
deduction or abatement except as otherwise specifically set forth in
this Lease.
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2.6 OPERATING EXPENSES.
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"Landlord's Operating Expenses" means the cost of operation of the
Building and the Site which shall exclude costs of special services
rendered to tenants (including Tenant) for which a separate charge is
made, but shall include, without limitation, the following: premiums
for insurance carried with respect to the Building and the Site
(including, without limitation, liability insurance, insurance against
loss in case of fire or casualty and insurance of monthly installments
of fixed rent and any Additional Rent which may be due under this Lease
and other leases of space in the Building for not more than 12 months
in the case of both fixed rent and Additional Rent and if there be any
first mortgage of the Property, including such insurance as may be
required by the holder of such first mortgage); compensation and all
fringe benefits, worker's compensation insurance premiums and payroll
taxes paid to, for or with respect to all persons engaged in the
operating, maintaining or cleaning of the Building or Site, water,
sewer, electric, gas, oil and telephone charges (excluding utility
charges separately chargeable to tenants for additional or special
services); cost of building and cleaning supplies and equipment; cost
of maintenance, cleaning and repairs (other than repairs directly
chargeable to other tenants or not properly chargeable against income
or reimbursed from contractors under guarantees); cost of snow removal
and care of landscaping; payments under service contracts with
independent contractors; management fees at reasonable rates consistent
with the type of occupancy and the service rendered; and all other
reasonable and necessary expenses paid in connection with the
operation, cleaning and maintenance of the Building and the Site and
properly chargeable against income, provided, however, there shall be
included (a) depreciation for capital expenditures made by Landlord (i)
to reduce Landlord's Operating Expenses if Landlord shall have
reasonably determined that the annual reduction in Landlord's Operating
Expenses shall exceed depreciation therefor or (ii) to comply with
applicable laws, rules, regulations, requirements, statutes,
ordinances, by-laws and court decisions of all public authorities which
are now or hereafter in force; plus (b) in the case of both (i) and
(ii) an interest factor, reasonably determined by Landlord, as being
the interest rate then charged for long term mortgages by institutional
lenders on like properties within the locality in which the Building is
located; depreciation in the case of both (i) and (ii) shall be
determined by dividing the original cost of such capital expenditure by
the number of years of useful life of the capital item acquired and the
useful life shall be reasonably determined by Landlord in accordance
with generally accepted accounting principles and practices in effect
at the time of acquisition of the capital item.
"Tenant's Share" shall mean 17.85%.
"Operating Expenses Allocable to the Premises" shall mean Tenant's
Share of Landlord's Operating Expenses for and pertaining to the
Building and the Site.
"Base Operating Expenses" shall mean Landlord's Operating Expenses for
calendar year 2005 (that is, the period beginning January 1, 2005 and
ending December 31, 2005). Base Operating Expenses shall not include
market-wide cost increases due to extraordinary circumstances, included
but not limited to Force Majeure (as defined in Section 6.1),
conservation surcharges, boycotts, strikes, embargoes or shortages.
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"Base Operating Expenses Allocable to the Premises" shall mean Tenant's
Share of Base Operating Expenses.
If with respect to any calendar year falling within the Term, or
fraction of a calendar year falling within the Term at the beginning or
end thereof, the Operating Expenses Allocable to the Premises for a
full calendar year exceed Base Operating Expenses Allocable to the
Premises or for any such fraction of a calendar year exceed the
corresponding fraction of Base Operating Expenses Allocable to the
Premises (such amount being hereinafter sometimes referred to as the
"Operating Cost Excess") then, Tenant shall pay to Landlord, as
Additional Rent, the amount of such excess. Such payments shall be made
at the times and in the manner hereinafter provided in this Section
2.6. (The Base Operating Expenses Allocable to the Premises do not
include the $1.00 for tenant electricity to be paid by Tenant together
with Annual Fixed Rent and for which provision is made in Section 2.5
hereof, separate provision being made in Section 2.8 of this Lease for
Tenant's share of increases in electricity costs.)
Not later than one hundred and twenty (120) days after the end of the
first calendar year or fraction thereof ending December 31 and of each
succeeding calendar year during the Term or fraction thereof at the end
of the Term, Landlord shall render Tenant a statement in reasonable
detail and according to generally accepted accounting practices
certified by a representative of Landlord, showing for the preceding
calendar year or fraction thereof, as the case may be, Base Operating
Expenses, Landlord's Operating Expenses and Operating Expenses
Allocable to the Premises. Said statement to be rendered to Tenant
shall also show for the preceding year or fraction thereof as the case
may be the amounts of operating expenses already paid by Tenant as
Additional Rent on account of the operating expenses and the amount of
the Operating Cost Excess remaining due from, or overpaid by, Tenant
for the year or other period covered by the statement. Within thirty
(30) days after the date of delivery of such statement, Tenant shall
pay to Landlord the balance of the amounts, if any, required to be paid
pursuant to the above provisions of this Section 2.6 with respect to
the preceding year or fraction thereof, or Landlord shall credit any
amounts overpaid by Tenant against (i) monthly installments of fixed
rent next thereafter coming due or (ii) any sums then due from Tenant
to Landlord under this Lease (or refund such portion of the overpayment
as aforesaid if the Term has ended and Tenant has no further obligation
to Landlord).
In addition, Tenant shall make payments monthly on account of Tenant's
share of increases in Landlord's Operating Expenses anticipated for the
then current year at the time and in the fashion herein provided for
the payment of fixed rent. The amount to be paid to Landlord shall be
an amount reasonably estimated annually by Landlord to be sufficient to
cover, in the aggregate, a sum equal to the Operating Cost Excess for
each calendar year during the Term.
Notwithstanding the foregoing provisions, no decrease in Landlord's
Operating Expenses shall result in a reduction of the amount otherwise
payable by Tenant if and to the extent said decrease is attributable to
vacancies in the Building rather than to any other causes.
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2.7 REAL ESTATE TAXES.
-----------------
If with respect to any full Tax Year or fraction of a Tax Year falling
within the Term, Landlord's Tax Expenses Allocable to the Premises (as
hereinafter defined) for a full Tax Year exceed Base Taxes Allocable to
the Premises or for any such fraction of a Tax Year exceed the
corresponding fraction of Base Taxes Allocable to the Premises (such
amount being hereinafter sometimes referred to as the "Tax Excess")
then, on or before the thirtieth (30th) day following receipt by Tenant
of the certified statement referred to below in this Section 2.7, then
Tenant shall pay to Landlord, as Additional Rent, the amount of the Tax
Excess. Not later than ninety (90) days after Landlord's Tax Expenses
Allocable to the Premises are determined for the first such Tax Year or
fraction thereof and for each succeeding Tax Year or fraction thereof
during the Term, Landlord shall render Tenant a statement in reasonable
detail certified by a representative of Landlord showing for the
preceding year or fraction thereof, as the case may be, real estate
taxes on the Building and the Site and abatements and refunds of any
taxes and assessments. Expenditures for legal fees and for other
expenses incurred in seeking the tax refund or abatement may be charged
against the tax refund or abatement before the adjustments are made for
the Tax Year. Said statement to be rendered to Tenant shall also show
for the preceding Tax Year or fraction thereof as the case may be the
amounts of real estate taxes already paid by Tenant as Additional Rent,
and the amount of real estate taxes remaining due from, or overpaid by,
Tenant for the year or other period covered by the statement. Within
thirty (30) days after the date of delivery of the foregoing statement,
Tenant shall pay to Landlord the balance of the amounts, if any,
required to be paid pursuant to the above provisions of this Section
2.7 with respect to the preceding Tax Year or fraction thereof, or
Landlord shall credit any amounts due from it to Tenant pursuant to the
provisions of this Section 2.7 against (i) monthly installments of
fixed rent next thereafter coming due or (ii) any sums then due from
Tenant to Landlord under this Lease (or refund such portion of the
over-payment as aforesaid if the Term has ended and Tenant has no
further obligation to Landlord).
In addition, payments by Tenant on account of increases in real estate
taxes anticipated for the then current year shall be made monthly at
the time and in the fashion herein provided for the payment of fixed
rent. The amount so to be paid to Landlord shall be an amount
reasonably estimated by Landlord to be sufficient to provide Landlord,
in the aggregate, a sum equal to Tenant's share of such increases, at
least ten (10) days before the day on which such payments by Landlord
would become delinquent.
To the extent that real estate taxes shall be payable to the taxing
authority in installments with respect to periods less than a Tax Year,
the foregoing statement shall be rendered and payments made on account
of such installments. Notwithstanding the foregoing provisions, no
decrease in Landlord's Tax Expenses with respect to any Tax Year shall
result in a reduction of the amount otherwise payable by Tenant if and
to the extent said decrease is attributable to vacancies in the
Building or partial completion of the Building rather than to any other
causes.
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Terms used herein are defined as follows:
(i) "Tax Year" means the twelve-month period beginning July 1 each
year during the Term or if the appropriate governmental tax
fiscal period shall begin on any date other than July 1, such
other date.
(ii) "Tenant's Tax Share" means 18.79%.
(iii) "Landlord's Tax Expenses Allocable to the Premises" shall mean
Tenant's Tax Share of Landlord's Tax Expenses.
(iv) "Landlord's Tax Expenses" with respect to any Tax Year means the
aggregate real estate taxes on the Building and Site with respect
to that Tax Year, reduced by any abatement receipts with respect
to that Tax Year.
(v) "Base Taxes" means Landlord's Tax Expenses (hereinbefore defined)
for fiscal tax year 2006 (that is, the period beginning July 1,
2005 and ending June 30, 2006).
(vi) "Base Taxes Allocable to the Premises" means Tenant's Tax Share
of Base Taxes.
(vii) "Real estate taxes" means all taxes and special assessments of
every kind and nature and user fees and other like fees assessed
by any governmental authority on the Building or Site which the
Landlord shall become obligated to pay because of or in
connection with the ownership, leasing or operation of the Site,
the Building and the Property (including, without limitation, if
applicable the excise prescribed by Mass Gen Laws Chapter 121A,
Section 10 and amounts in excess thereof paid to the Town of
Lexington pursuant to agreement between Landlord and the Town)
and reasonable expenses of and fees for any formal or informal
proceedings for negotiation or abatement of taxes (collectively,
"Abatement Expenses"), which Abatement Expenses shall be excluded
from Base Taxes. The amount of special taxes or special
assessments to be included shall be limited to the amount of the
installment (plus any interest, other than penalty interest,
payable thereon) of such special tax or special assessment
required to be paid during the year in respect of which such
taxes are being determined. There shall be excluded from such
taxes all late fees or penalties, and income, estate, succession,
inheritance and transfer taxes; provided, however, that if at any
time during the Term the present system of ad valorem taxation of
real property shall be changed so that in lieu of, or in addition
to, the whole or any part of the ad valorem tax on real property
there shall be assessed on Landlord a capital levy or other tax
on the gross rents received with respect to the Site or Building
or Property, or a federal, state, county, municipal, or other
local income, franchise, excise or similar tax, assessment, levy
or charge (distinct from any now in effect in the jurisdiction in
which the Property is located) measured by or based, in whole or
in part, upon any such gross rents, then any and all of such
taxes, assessments, levies or charges, to the extent so measured
or based, shall be
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deemed to be included within the term "real estate taxes" but
only to the extent that the same would be payable if the Site and
Building were the only property of Landlord.
(viii) If during the Lease Term the Tax Year is changed by applicable
law to less than a full 12-month period, the Base Taxes and Base
Taxes Allocable to the Premises shall each be proportionately
reduced.
2.8 TENANT ELECTRICITY.
------------------
The current cost of furnishing electricity to the base building
components of the Building and the Site is approximately $1.36 per
square foot of the Total Rentable Floor Area of the Building and the
current cost of furnishing electricity to the tenant spaces in the
Building is approximately $1.15 per square foot of the Total Rentable
Floor Area of the Building. The costs of electricity consumption
chargeable to the tenants of the Building are based on the costs
charged to Landlord by the local utility company providing service to
the Building and the Site and are passed through to the tenants without
mark-up. If with respect to any calendar year falling within the Term
or fraction of a calendar year falling within the Term at the beginning
or end thereof, the cost of furnishing electricity to the Building and
the Site, including common areas and facilities and space occupied by
tenants, (but expressly excluding utility charges separately chargeable
to tenants for additional or special services) for a full calendar year
exceeds $1.00 per square foot of Rentable Floor Area of the Building,
or for any such fraction of a calendar year exceeds the corresponding
fraction of $1.00 per square foot of Rentable Floor Area of the
Building, then Tenant shall pay to Landlord, as Additional Rent, on or
before the thirtieth (30th) day following receipt by Tenant of the
statement referred to below in this Section 2.8, its proportionate
share of the amount of such excess (i.e. the same proportion of such
excess as the Rentable Floor Area of Tenant's Space bears to the Total
Rentable Floor Area of the Building). In no event shall Tenant be
responsible for any increases in the cost of electricity caused by
another tenant's excessive use. Payments by Tenant on account of such
excess shall be made monthly at the time and in the fashion herein
provided for the payment of Annual Fixed Rent. The amount so to be paid
to Landlord shall be an amount from time to time reasonably estimated
by Landlord to be sufficient to cover, in the aggregate, a sum equal to
such excess for each calendar year during the Term. If the Landlord
shall reasonably determine that the cost of electricity furnished to
the Tenant at the Premises exceeds the amount being paid under Sections
2.5 and 2.8, then the Landlord may charge the Tenant for such excess
and the Tenant shall promptly pay the same upon billing therefor.
Not later than ninety (90) days after the end of the first calendar
year or fraction thereof ending December 31 and of each succeeding
calendar year during the Term or fraction thereof at the end of the
Term, Landlord shall render Tenant a reasonably detailed accounting
certified by a representative of Landlord showing for the preceding
calendar year, or fraction thereof, as the case may be, the costs of
furnishing electricity to the Building. Said statement to be rendered
to Tenant also shall show for the preceding year or fraction thereof,
as the case may be, the amount already paid by Tenant on account of
electricity, and the amount remaining due from, or overpaid by, Tenant
for the year or
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other period covered by the statement. Within thirty (30) days after
the date of the delivery of such statement, Tenant shall pay to
Landlord the balance of the amounts, if any required to be paid
pursuant to the above provisions of this Section 2.8 with respect to
the preceding year, or fraction thereof, or Landlord shall credit any
amounts due from it to Tenant pursuant to the above provisions of this
Section 2.8 against monthly installments of Annual Fixed Rent or
Additional Rent next thereafter coming due unless the Lease Term has
expired and Tenant has no other or further obligations to Landlord, in
which case Landlord shall promptly refund such amount to Tenant.
ARTICLE III
-----------
CONDITION OF PREMISES; ALTERATIONS
----------------------------------
3.1 CONDITION OF PREMISES.
---------------------
Tenant shall accept the Premises in their As-Is condition without any
obligation on the Landlord's part to perform any additions,
alterations, improvements, demolition or other work therein or
pertaining thereto.
3.2 QUALITY AND PERFORMANCE OF WORK.
-------------------------------
All construction work required or permitted by this Lease shall be done
in a good and workmanlike manner and in compliance with all applicable
laws, ordinances, rules, regulations, statutes, by-laws, court
decisions, and orders and requirements of all public authorities
("Legal Requirements") and all Insurance Requirements (as defined in
Section 5.14 hereof). All of Tenant's work shall be coordinated with
any work being performed by or for Landlord and in such manner as to
maintain harmonious labor relations. Each party may inspect the work of
the other at reasonable times and shall promptly give notice of
observed defects. Each party authorizes the other to rely in connection
with design and construction upon approval and other actions on the
party's behalf by any Construction Representative of the party named in
Section 1.1 or any person hereafter designated in substitution or
addition by notice to the party relying. Except to the extent to which
Tenant shall have given Landlord notice of respects in which Landlord
has not performed Landlord's construction obligations under this
Article III (if any) (i) not later than the end of the sixth (6th) full
calendar month next beginning after the Commencement Date with respect
to the heating, ventilating and air conditioning systems servicing the
Premises, and (ii) not later than the third (3rd) full calendar month
next beginning after the Commencement Date with respect to Landlord's
construction obligations under this Article III not referenced in (i)
above, Tenant shall be deemed conclusively to have approved Landlord's
construction and shall have no claim that Landlord has failed to
perform any of Landlord's obligations under this Article III (if any).
Landlord agrees to correct or repair at its expense items which are
then incomplete or do not conform to the work contemplated under the
Plans and as to which, in either case, Tenant shall have given notice
to Landlord, as aforesaid.
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3.3 SPECIAL ALLOWANCE.
-----------------
Landlord shall provide to Tenant a special allowance equal to the
product of (i) $6.00 and (ii) the Rentable Floor Area of the Premises
(the "Tenant Allowance"). The Tenant Allowance shall be used and
applied by Tenant solely on account of the cost of work performed by or
on behalf of Tenant ("Tenant's Work"), which such Tenant's Work shall
be performed in accordance with the terms of this Lease. Provided that
the Tenant (i) has opened for business in the Premises, (ii) has
completed all of such Tenant's Work in accordance with the terms of
this Lease, has paid for all of such Tenant's Work in full and has
delivered to Landlord lien waivers from all persons who might have a
lien as a result of such work, in the recordable forms attached hereto
as Exhibit F, (iii) has delivered to Landlord its certificate
specifying the cost of such Tenant's Work and all contractors,
subcontractors and supplies involved with Tenant's Work, together with
evidence of such cost in the form of paid invoices, receipts and the
like, (iv) has satisfied the requirements of (i) through (iii) above
and made request for such payment on or before May 1, 2006, (v) is not
otherwise in default under this Lease, and (vi) there are no liens
(unless bonded to the reasonable satisfaction of Landlord) against
Tenant's interest in the Lease or against the Building or the Site
arising out of Tenant's Work or any litigation in which Tenant is a
party, then within thirty (30) days after the satisfaction of the
foregoing conditions, the Landlord shall pay to the Tenant the lesser
of the amount of such costs so certified or the amount of the Tenant
Allowance. Notwithstanding the foregoing, Tenant shall have the option
to request Landlord to make two separate disbursements of the Tenant
Allowance (one prior to final completion of the Tenant's Work and one
upon completion of the same), provided that in the case of the request
made prior to final completion (1) Tenant has satisfied the
requirements of items (ii) through (vi) above with respect to that
portion of the Tenant's Work completed prior to the date of the request
and (2) the disbursement requested by Tenant equals $21,832.00 or more.
For the purposes hereof, the cost to be so reimbursed by Landlord shall
include (x) the cost of leasehold improvements, engineering fees,
architectural fees and third-party supervision or management fees and
(y) up to $21,832.00 towards the cost of Tenant's voice and data
cabling, personal property, trade fixtures or trade equipment, moving
expenses or any so-called soft costs.
Notwithstanding the foregoing, Landlord shall be under no obligation to
apply any portion of the Tenant Allowance for any purposes other than
as provided in this Section 3.4, nor shall Landlord be deemed to have
assumed any obligations, in whole or in part, of Tenant to any
contractors, subcontractors, suppliers, workers or materialmen.
Further, in no event shall Landlord be required to make application of
any portion of the Tenant Allowance on account of any supervisory fees,
overhead, management fees or other payments to Tenant, or any partner
or affiliate of Tenant. In the event that such cost of Tenant's Work is
less than the Tenant Allowance, Tenant shall not be entitled to any
payment or credit nor shall there be any application of the same toward
Annual Fixed Rent or Additional Rent owed by Tenant under this Lease.
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ARTICLE IV
----------
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
----------------------------------------------
4.1 LANDLORD COVENANTS:
------------------
4.1.1 SERVICES FURNISHED BY LANDLORD.
------------------------------
To furnish services, utilities, facilities and supplies set
forth in Exhibit C equal to those customarily provided by
landlords in high quality buildings in the Boston West
Suburban Market subject to escalation reimbursement in
accordance with Section 2.6.
4.1.2 ADDITIONAL SERVICES AVAILABLE TO TENANT.
---------------------------------------
To furnish, at Tenant's expense, reasonable additional
Building operation services which are usual and customary in
similar office buildings in the Boston West Suburban Market
upon reasonable advance request of Tenant at reasonable and
equitable rates from time to time established by Landlord.
Tenant agrees to pay to Landlord, as Additional Rent, the
reasonable cost of any such additional Building services
requested by Tenant and for the reasonable cost of any
additions, alterations, improvements or other work performed
by Landlord in the Premises at the request of Tenant within
thirty (30) days after being billed therefor.
4.1.3 ROOF, EXTERIOR WALL, FLOOR SLAB AND COMMON FACILITY REPAIRS.
-----------------------------------------------------------
Except for (a) normal and reasonable wear and use and (b)
damage caused by fire and casualty and by eminent domain, and
except as otherwise provided in Article VI and subject to the
escalation provisions of Section 2.6, (i) to make such repairs
to the structural portions of the Building (including but not
limited to the roof, exterior walls and floor slabs) and to
the common areas and facilities as may be necessary to keep
them in serviceable condition and (ii) to maintain the
Building (exclusive of Tenant's responsibilities under this
Lease) in a first class manner comparable to the maintenance
of similar properties in the Boston West Suburban Market.
4.1.4 DOOR SIGNS.
----------
To provide and install, at Landlord's expense, letters or
numerals on the exterior doors to the Premises to identify
Tenant's official name and Building address; all such letters
and numerals shall be in the building standard graphics and no
others shall be used or permitted on the Premises.
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4.2 INTERRUPTIONS AND DELAYS IN SERVICES AND REPAIRS, ETC.
-----------------------------------------------------
Landlord shall not be liable to Tenant for any compensation or
reduction of rent by reason of inconvenience or annoyance or for loss
of business arising from the necessity of Landlord or its agents
entering the Premises for any of the purposes in this Lease authorized,
or for repairing the Premises or any portion of the Building however
the necessity may occur. In case Landlord is prevented or delayed from
making any repairs, alterations or improvements, or furnishing any
services or performing any other covenant or duty to be performed on
Landlord's part, by reason of any cause reasonably beyond Landlord's
control, including without limitation the causes set forth in Section
3.2 hereof as being reasonably beyond Landlord's control, Landlord
shall not be liable to Tenant therefor, nor, except as expressly
otherwise provided in Article VI, shall Tenant be entitled to any
abatement or reduction of rent by reason thereof, or right to terminate
this Lease, nor shall the same give rise to a claim in Tenant's favor
that such failure constitutes actual or constructive, total or partial,
eviction from the Premises.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary
repairs have been completed; provided, however, that in each instance
of stoppage, Landlord shall exercise reasonable diligence to eliminate
the cause thereof. Except in case of emergency repairs, Landlord will
give Tenant reasonable advance notice of any contemplated stoppage and
will use reasonable efforts to avoid unnecessary inconvenience to
Tenant by reason thereof.
In the event that the electrical, heating, ventilating, air
conditioning, or all elevator service to the Premises shall be shut
down for more than five (5) full and consecutive business days, but
only as a result of causes which are covered by Landlord's loss of
rentals insurance, then, Tenant shall be entitled to an abatement of
Annual Fixed Rent equal to the "Insurance Amount" (hereinafter
defined). The "Insurance Amount" shall be an amount equal to the
payment actually received by Landlord (but only allocable to and on
account of the Premises) for such shut down of electricity service to
the Premises from Landlord's insurance carrier providing such loss of
rents insurance less the amount of any deductible contained in such
loss of rents insurance coverage. Notwithstanding anything herein
contained to the contrary, in no event shall any of the events referred
to in this Section give rise to a claim in Tenant's favor that such
failure constitutes actual or constructive, total or partial, eviction
from the Premises.
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ARTICLE V
---------
TENANT'S COVENANTS
------------------
Tenant covenants during the Term and such further time as Tenant
occupies any part of the Premises:
5.1 PAYMENTS.
--------
To pay when due all fixed rent and Additional Rent and all charges for
utility services rendered to the Premises (except as otherwise provided
in Exhibit C) and, further, as Additional Rent, all charges for
additional services rendered pursuant to Section 4.1.2.
5.2 REPAIR AND YIELD UP.
-------------------
Except as otherwise provided in Article VI and Section 4.1.3, to keep
the Premises in good order, repair and condition, damage by casualty
and reasonable wear and tear only excepted, and all glass in windows
(except glass in exterior walls unless the damage thereto is
attributable to Tenant's negligence or misuse) and doors of the
Premises whole and in good condition with glass of similar type and
quality as that injured or broken, damage by fire or taking under the
power of eminent domain only excepted, and at the expiration or
termination of this Lease peaceably to yield up the Premises all
construction, work, improvements, and all alterations and additions
thereto in good order, repair and condition, reasonable wear and tear
only excepted, first removing all goods and effects of Tenant and, to
the extent specified by Landlord by notice to Tenant given at the time
Landlord approves Tenant's plans for the installation of the same that
removal will be required upon the expiration or earlier termination of
the Lease Term, the wiring for Tenant's computer, telephone and other
communication systems and equipment whether located in the Premises or
in any other portion of the Building, including all risers and all
alterations and additions made by Tenant and all partitions. Tenant
shall repair any damage caused by such removal and shall restore the
Premises and leave them clean and neat. Tenant shall not permit or
commit any waste, and Tenant shall be responsible for the cost of
repairs which may be made necessary by reason of damage to common areas
in the Building or to the Site caused by Tenant, Tenant's agents,
contractors, employees, sublessees, licensees, concessionaires or
invitees.
5.3 USE.
---
Continuously from the commencement of the Term, to use and occupy the
Premises for the Permitted Use only, and not to injure or deface the
Premises, Building, the Site or any other part of the Complex nor to
permit in the Premises or on the Site any auction sale, vending machine
(except for two (2) vending machines exclusively for use by Tenant's
employees, one per on each floor occupied by Tenant; provided, however,
that (i) Landlord shall have the right to approve the location of each
such vending machine and (ii) Tenant shall be required to remove the
vending machines upon the expiration or earlier termination of this
Lease and repair any damage to the Premises caused by their
installation and removal), or inflammable fluids or chemicals, or
nuisance, or the emission from the Premises of any objectionable noise
or odor, nor to permit in the Premises anything which will in any way
result in the leakage of fluid or the growth of mold, and not to use or
devote the Premises or any part thereof for any purpose other than the
Permitted Uses, nor for any use thereof which is inconsistent with
maintaining the Building as a first class office building in the
quality of its maintenance, use and occupancy, or which is improper,
offensive, contrary to law or ordinance or liable to render necessary
any alteration or addition to the Building. Further, (i) Tenant shall
not,
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nor shall Tenant permit its employees, invitees, agents, independent
contractors, contractors, assignees or subtenants to, keep, maintain,
store or dispose of (into the sewage or waste disposal system or
otherwise) or engage in any activity which might produce or generate
any substance which is or may hereafter be classified as a hazardous
material, waste or substance (collectively "Hazardous Materials"),
under federal, state or local laws, rules and regulations, including,
without limitation, 42 U.S.C. Section 6901 et seq., 42 U.S.C. Section
9601 et seq., 42 U.S.C. Section 2601 et seq., 49 U.S.C. Section 1802
et seq. and Massachusetts General Laws, Chapter 21E and the rules and
regulations promulgated under any of the foregoing, as such laws,
rules and regulations may be amended from time to time (collectively
"Hazardous Materials Laws"), (ii) Tenant shall immediately notify
Landlord of any incident in, on or about the Premises, the Building or
the Site that would require the filing of a notice under any Hazardous
Materials Laws, (iii) Tenant shall comply and shall cause its
employees, invitees, agents, independent contractors, contractors,
assignees and subtenants to comply with each of the foregoing and (iv)
Landlord shall have the right upon forty-eight (48) hours notice
(except in the event of an emergency) to make such inspections
(including testing) as Landlord shall reasonably determine are
necessary from time to time to determine that Tenant is complying with
the foregoing.
5.4 OBSTRUCTIONS; ITEMS VISIBLE FROM EXTERIOR; RULES AND REGULATIONS.
----------------------------------------------------------------
Not to obstruct in any manner any portion of the Building not hereby
leased or any portion thereof or of the Site used by Tenant in common
with others; not without prior consent of Landlord to permit the
painting or placing of any signs, curtains, blinds, shades, awnings,
aerials or flagpoles, or the like, visible from outside the Premises;
and to comply with all reasonable rules and regulations now or
hereafter made by Landlord, of which Tenant has been given notice, for
the care and use of the Building and Site and their facilities and
approaches; Landlord shall not be liable to Tenant for the failure of
other occupants of the Building to conform to such rules and
regulations.
5.5 SAFETY APPLIANCES.
-----------------
To keep the Premises equipped with all safety appliances required by
any public authority because of any use made by Tenant other than for
Tenant's Permitted Use, and to procure all licenses and permits so
required because of such use and, if requested by Landlord, to do any
work so required because of such use, it being understood that the
foregoing provisions shall not be construed to broaden in any way
Tenant's Permitted Use.
5.6 ASSIGNMENT; SUBLEASE.
--------------------
Except as otherwise expressly provided herein, Tenant covenants and
agrees that it shall not assign, mortgage, pledge, hypothecate or
otherwise transfer this Lease and/or Tenant's interest in this Lease or
sublet (which term, without limitation, shall include granting of
concessions, licenses or the like) the whole or any part of the
Premises. Any assignment, mortgage, pledge, hypothecation, transfer or
subletting not expressly
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permitted in or consented to by Landlord under Sections 5.6.1-5.6.6
shall be void, ab initio; shall be of no force and effect; and shall
confer no rights on or in favor of third parties. In addition,
Landlord shall be entitled to seek specific performance of or other
equitable relief with respect to the provisions hereof.
5.6.1 Notwithstanding the provisions of Section 5.6 above and the
provisions of Section 5.6.2, 5.6.3 and 5.6.5 below, Tenant shall
have the right to assign this Lease or to sublet the Premises (in
whole or in part) to any parent or subsidiary corporation of
Tenant or to any corporation into which Tenant may be converted
or with which it may merge, provided that the entity to which
this Lease is so assigned or which so sublets the Premises has a
credit worthiness (e.g. assets on a pro forma basis using
generally accepted accounting principles consistently applied and
using the most recent financial statements) which is the same or
better than Tenant as of the date of this Lease. If any parent or
subsidiary corporation of Tenant to which this Lease is assigned
or the Premises sublet (in whole or in part) shall cease to be
such a parent or subsidiary corporation, such cessation shall be
considered an assignment or subletting requiring Landlord's
consent, which consent shall not be unreasonably withheld,
delayed or conditioned. Any such assignment or subletting shall
be subject to the provisions of Section 5.6.4 and Section 5.6.6
below.
5.6.2 Notwithstanding the provisions of Section 5.6 above, in the
event Tenant desires to assign this Lease or to sublet the
Premises (in whole or in part), Tenant shall give Landlord a
Proposed Transfer Notice (as defined in Section 5.6.4 hereof) and
Landlord shall have the right at its sole option, to be exercised
within fifteen (15) days after receipt of Tenant's Proposed
Transfer Notice (the "Acceptance Period"), to terminate this
Lease as of a date specified in a notice to Tenant, which date
shall not be earlier than sixty (60) days nor later than one
hundred and twenty (120) days after Landlord's notice to Tenant;
provided, however, that upon the termination date as set forth in
Landlord's notice, all obligations relating to the period after
such termination date (but not those relating to the period
before such termination date) shall cease and promptly upon being
billed therefor by Landlord, Tenant shall make final payment of
all rent and Additional Rent due from Tenant through the
termination date. Notwithstanding the foregoing, in the event
that Tenant shall propose to sublease a portion of the Premises,
Landlord shall only have the right to so terminate this Lease
with respect to the portion of the Premises which Tenant proposes
to sublease (the "Terminated Portion of the Premises") and from
and after the termination date the Rentable Floor Area of the
Premises shall be reduced to the rentable floor area of the
remainder of the Premises and the definition of Rentable Floor
Area of the Premises shall be so amended and after such
termination all references in this Lease to the "Premises" or the
"Rentable Floor Area of the Premises" shall be deemed to be
references to the remainder of the Premises and accordingly
Tenant's payments for Annual Fixed Rent, operating costs, real
estate taxes and electricity shall be reduced on a pro rata basis
to reflect the size of the remainder of the Premises.
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In the event that Landlord elects to terminate this Lease as
aforesaid, Tenant shall have the right upon written notice
delivered to Landlord within fifteen (15) days from receipt of
Landlord's termination notice, to rescind its Proposed Transfer
Notice, at which point Landlord's termination notice shall be
deemed null and void and this Lease shall continue in full force
and effect.
In the event that Landlord shall not exercise its termination
rights as aforesaid, or shall fail to give any or timely notice
pursuant to this Section the provisions of Sections 5.6.3-5.6.6
shall be applicable. This Section 5.6.2 shall not be applicable
to an assignment or sublease pursuant to Section 5.6.1.
5.6.3 Notwithstanding the provisions of Section 5.6 above, but subject
to the provisions of this Section 5.6.3 and the provisions of
Sections 5.6.4, 5.6.5 and 5.6.6 below, in the event that Landlord
shall not have exercised the termination right as set forth in
Section 5.6.2, or shall have failed to give any or timely notice
under Section 5.6.2, then for a period of ninety (90) days (i)
after the receipt of Landlord's notice stating that Landlord does
not elect the termination right, or (ii) after the expiration of
the Acceptance Period in the event Landlord shall not give any or
timely notice pursuant to Section 5.6.2, as the case may be,
Tenant shall have the right to assign this Lease or sublet the
Premises in accordance with the Proposed Transfer Notice given as
provided in Section 5.6.4 provided that, in each instance, Tenant
first obtains the express prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed.
Without limiting the foregoing standard, Landlord shall not be
deemed to be unreasonably withholding its consent to such a
proposed assignment or subleasing if:
(a) if Landlord has comparable space available for lease in the
Building, the proposed assignee or subtenant is a tenant in
the Building or is in active negotiation with Landlord for
premises in the Building, or
(b) the proposed assignee or subtenant is not of good character
and reputation or is not of a character consistent with the
operation of a first class office building (by way of
example Landlord shall not be deemed to be unreasonably
withholding its consent to an assignment or subleasing to
any governmental or quasi-governmental agency which is open
to the public), or
(c) the proposed assignee does not possess adequate financial
capability to perform the Tenant obligations as and when due
or required or the proposed subtenant does not possess
adequate financial capability to perform the subtenant
obligations under the sublease as and when due or required,
or
(d) the assignee or subtenant proposes to use the Premises (or
part thereof) for a purpose other than the purpose for which
the Premises may be used as stated in Section 1.1 hereof, or
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(e) the character of the business to be conducted or the
proposed use of the Premises by the proposed subtenant or
assignee shall (i) be likely to increase Landlord's
Operating Expenses beyond that which Landlord now incurs for
use by Tenant; (ii) be likely to increase the burden on
elevators or other Building systems or equipment over the
burden prior to such proposed subletting or assignment; or
(iii) violate or be likely to violate any provisions or
restrictions contained herein relating to the use or






