<PAGE>
EXHIBIT 10.6
LEASE
BY AND BETWEEN
TRUSTEES OF 4 MAGUIRE ROAD REALTY TRUST
LANDLORD
AND
PREDIX PHARMACEUTICALS HOLDINGS, INC.
TENANT
4 MAGUIRE ROAD
LEXINGTON,
MASSACHUSETTS
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Table of Contents
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ARTICLE 1 Reference
Data.............................................. 1
1.1 Introduction and Subjects
Referred To......................... 1
1.2
Exhibits......................................................
2
ARTICLE 2 Premises and
Term........................................... 3
2.1
Premises......................................................
3
2.2
Term..........................................................
3
2.3 Extension
Option.............................................. 3
2.4 Measurement of the Premises
and Building...................... 5
ARTICLE 3 Commencement
and Condition.................................. 5
3.1 Commencement
Date............................................. 5
3.2 Preparation of the
Premises................................... 5
3.3 Conclusiveness of Landlord's
Performance...................... 7
3.4 Tenant Delay: Force
Majeure................................... 7
3.5 Construction
Representatives.................................. 9
3.6 Application of Remaining
Contribution......................... 9
3.7 Early
Access..................................................
10
ARTICLE 4 Rent,
Additional Rent, Insurance and Other Charges.......... 10
4.1 The Annual Fixed
Rent......................................... 10
4.2 Additional
Rent............................................... 10
4.2.1 Real Estate Taxes.......................................
11
4.2.2 Operating Costs.........................................
12
4.3 Personal Property and Sales
Taxes............................. 16
4.4
Insurance.....................................................
16
4.5
Utilities.....................................................
17
4.6 Late Payment of
Rent.......................................... 18
4.7 Security
Deposit.............................................. 18
ARTICLE 5 Landlord's
Covenants........................................ 20
5.1 Affirmative
Covenants......................................... 20
5.1.1 Heat and Air-Conditioning...............................
20
5.1.2 Landscaping.............................................
20
5.1.3 Elevator, Lighting and Electricity......................
20
5.1.4 Repairs.................................................
21
5.2
Interruption..................................................
21
5.3 Outside
Services.............................................. 21
5.4 Access to
Building............................................ 21
5.5
Parking.......................................................
22
5.6 Compliance with Americans
with Disabilities Act............... 22
5.7 Hazardous Waste
Representation and Covenants.................. 22
5.8
Indemnification...............................................
23
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ARTICLE 6 Tenant's
Additional
Covenants..................................................
23
6.1 Affirmative
Covenants............................................................
23
6.1.1 Perform
Obligations........................................................
23
6.1.2
Use........................................................................
23
6.1.3 Repair and
Maintenance.....................................................
23
6.1.4 Compliance with
Law........................................................
24
6.1.5
Indemnification............................................................
24
6.1.6 Landlord's Right to
Enter..................................................
25
6.1.7 Personal Property at Tenant's
Risk......................................... 25
6.1.8 Payment of Landlord's Cost of
Enforcement.................................. 25
6.1.9 Yield
Up...................................................................
26
6.1.10 Rules and
Regulations.....................................................
27
6.1.11 Estoppel
Certificate......................................................
27
6.1.12 Landlord's Expenses For
Consents.......................................... 27
6.1.13 Financial
Information.....................................................
27
6.2 Negative
Covenants...............................................................
27
6.2.1 Assignment and
Subletting..................................................
27
6.2.2
Nuisance...................................................................
31
6.2.3 Floor Load; Heavy
Equipment................................................
31
6.2.4
Electricity................................................................
32
6.2.5 Installation, Alterations or
Additions..................................... 32
6.2.6 Intentionally
Deleted......................................................
33
6.2.7
Signs......................................................................
33
6.2.8 Oil and Hazardous
Materials................................................
34
ARTICLE 7 Casualty or
Taking.............................................................
35
7.1
Termination......................................................................
35
7.1.1 Termination by Landlord
................................................... 35
7.1.2 Termination by
Tenant......................................................
36
7.2
Restoration......................................................................
36
7.3
Award............................................................................
37
7.4 Effect of Casualty or Taking
on the Tax Excess and the Operating Cost Excess..... 37
ARTICLE 8
Defaults.......................................................................
37
8.1 Default of
Tenant................................................................
37
8.2
Remedies.........................................................................
38
8.3 Remedies
Cumulative..............................................................
40
8.4 Landlord's Right to Cure
Defaults................................................
40
8.5 Holding
Over.....................................................................
41
8.6 Effect of Waivers of
Default.....................................................
41
8.7 No Waiver,
etc...................................................................
41
8.8 No Accord and
Satisfaction.......................................................
41
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ARTICLE 9 Rights of
Holders..............................................................
42
9.1 Rights of Mortgagees or
Ground Lessor............................................
42
9.2
Modifications....................................................................
43
9.3 Subordination,
Non-Disturbance and Attornment....................................
43
ARTICLE 10
Miscellaneous
Provisions......................................................
43
10.1
Notices..........................................................................
43
10.2
Quiet Enjoyment;
Landlord's Right to Make Alterations, Etc.......................
43
10.3
Recording of Lease;
Confidentiality of Lease Terms...............................
44
10.4
Assignment of Rents
and Transfer of Title; Limitation of Landlord's Liability....
44
10.5
Landlord's
Default...............................................................
45
10.6
Notice to Mortgagee
and Ground Lessor............................................
46
10.7
Brokerage........................................................................
46
10.8
Applicable Law and
Construction..................................................
46
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iii
<PAGE>
LEASE
4 Maguire Road
Lexington, Massachusetts
ARTICLE 1
Reference Data
1.1 Introduction and Subjects Referred To.
This is a
lease (this "Lease") entered into by and between Trustees of 4
Maguire Road Realty Trust, under Declaration of Trust dated January
30, 1998 and
filed with Middlesex County Registry District of the Land Court as
Document No.
1054066 ("Landlord") and Predix Pharmaceuticals Holdings, Inc., a
Delaware
corporation ("Tenant").
Each
reference in this Lease to any of the following terms or
phrases
shall be construed to incorporate the corresponding definition
stated in this
Section 1.1.
Date of this
Lease:
January 25, 2005.
Building
and Property: That building in the
Town of Lexington,
Massachusetts known as 4 Maguire Road (the
"Building"). The Building and the land parcels
on which it is located and the sidewalks
adjacent thereto are hereinafter collectively
referred to as the "Property".
Premises:
A portion of the first floor of the Building
containing a pH neutralization tank and related
equipment, the exact location and size to be
determined by Landlord and Tenant by the Final
Plans Date, and the entire rentable area on the
second floor of the Building, substantially as
shown on Exhibit A hereto.
Premises
Rentable Area:
27,500 square feet, subject to the provisions of
Section 2.4.
Original
Term:
Seven (7) years and two (2) months, commencing
on the Commencement Date and expiring on the day
preceding the seventh anniversary of the Rent
Commencement Date.
Annual
Fixed Rent:
The sum of (i) for the period commencing on the
Rent Commencement Date and expiring on the day
preceding the first anniversary of the Rent
Commencement Date, $16.29 per square foot of
Premises Rentable Area, (ii) for the period
commencing on the first anniversary of the Rent
Commencement Date and expiring on the day
preceding the second anniversary of the Rent
Commencement Date, $19.55
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per square foot of Premises Rentable Area, (iii)
for the period commencing on the second
anniversary of the Rent Commencement Date and
expiring on the day preceding the fifth
anniversary of the Rent Commencement Date,
$25.00 per square foot of Premises Rentable Area
per annum, and (iv) for the remaining two (2)
years of the Original Term, $27.50 per square
foot of Premises Rentable Area per annum. The
first Year shall be the period commencing on the
Rent Commencement Date and expiring on the day
preceding the first anniversary of the Rent
Commencement Date, and each subsequent
twelve-month period shall be a subsequent Year.
Tenant's
Percentage: Fifty
percent (50%), subject to the provisions
of Section 2.4.
Permitted
Uses:
General offices and pharmaceutical research and
laboratory purposes and any other lawful
purposes ancillary to the aforesaid principle
uses, subject to the provisions of Subsection
6.1.2.
Plan
Submission Date: March 2,
2005.
Final
Plans Date:
March 31, 2005.
Security
Deposit:
$450,000, subject to reduction as provided in
Section 4.7.
Commercial
General
$5,000,000 per occurrence (combined single
Liability
Insurance
limit) for property damage, bodily and personal
Limits:
injury and death.
Original
Address of c/o
Reit Management & Research LLC
Landlord:
400 Centre Street
Newton, Massachusetts 02458
Original
Address of 10K
Gill Street
Tenant:
Woburn, Massachusetts 01801
1.2
Exhibits.
The
Exhibits listed below in this section are incorporated in this
Lease
by reference and are to be construed as a part of this Lease.
EXHIBIT A. Plan
showing the Premises.
EXHIBIT
A-1. Plan Showing Location of Tenant's Visitor Parking Spaces
EXHIBIT B.
Rules and Regulations.
EXHIBIT C.
Alterations Requirements.
EXHIBIT D.
Contractor's Insurance Requirements.
EXHIBIT E. Clerk's
Certificate.
EXHIBIT 1.
Shell and Core Work.
EXHIBIT 2.
Exterior Work.
-2-
<PAGE>
ARTICLE 2
Premises and Term
2.1 Premises. Landlord
hereby leases to Tenant and Tenant hereby leases
from Landlord, subject to and with the benefit of the terms,
covenants,
conditions and provisions of this Lease, the Premises, excluding
exterior faces
of exterior walls, the common lobbies, hallways, stairways,
stairwells, elevator
shafts and other common areas, and the escalators, elevators,
pipes, ducts,
conduits, wires and appurtenant fixtures and other common
facilities serving the
common areas, the Premises and the premises of other tenants in the
Building.
Tenant
shall have, as appurtenant to the Premises, rights 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, hallways and stairways and
loading docks
of the Building, (b) the common escalators, elevators, pipes,
ducts, conduits,
wires and appurtenant fixtures and other common facilities serving
the Premises,
and (c) common walkways and driveways (if any) necessary for access
to the
Building.
2.2 Term.
The term of this Lease shall be for a period beginning on the
Commencement Date (as defined in Section 3.1) and continuing for
the Original
Term and any extension of the term hereof in accordance with the
provision of
this Lease, unless sooner terminated as hereinafter provided. When
the dates of
the beginning and end of the Original Term have been determined
such dates shall
be evidenced by a document executed by Landlord and Tenant and
delivered each to
the other, but the failure of Landlord and Tenant to execute or
deliver such
document shall have no effect upon such dates. The Original Term
and any
extension of the term hereof in accordance with the provisions of
this Lease is
hereinafter referred to as the "term" of this Lease.
2.3
Extension Option. So long as this Lease is still in full force
and
effect, and the named Tenant as set forth in Section 1.1(or any
successor by
merger, or any Affiliate) shall actually occupy at least seventy
percent (70%)
of the Premises, Tenant shall have the right to extend the term of
this Lease
for two (2) additional periods (the "Extended Term(s)") of three
(3) years each.
Each Extended Term shall commence on the day succeeding the
expiration of the
Original Term or the preceding Extended Term, as the case may be,
and shall end
on the day immediately preceding the third anniversary of the
commencement of
such Extended Term. All of the terms, covenants and provisions of
this Lease
applicable immediately prior to the expiration of the then current
term (i.e.
Original Term or Extended Term, as applicable) shall apply to each
such Extended
Term except that (i) the Annual Fixed Rent for each such Extended
Term shall be
ninety-five percent (95%) of the Market Rate (as hereinafter
defined) for the
Premises determined as of the commencement of such Extended Term,
as designated
by Landlord by notice to Tenant ("Landlord's Notice"), but subject
to Tenant's
right to dispute as hereinafter provided; and (ii) Tenant shall
have no further
right to extend the term of this Lease beyond the Extended Terms
hereinabove
provided. If Tenant shall elect to exercise any of the aforesaid
options, it
shall do so by giving Landlord notice ("Tenant's Extension Notice")
of its
election not later than one year, nor sooner than eighteen (18)
months, prior to
the expiration of the then current term of this Lease (Original
Term or Extended
Term, as applicable). If Tenant fails to give any such notice to
Landlord, the
term of this Lease shall automatically terminate no
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later than the end of the term then in effect, and Tenant shall
have no further
option to extend the term of this Lease, it being agreed that time
is of the
essence with respect to the giving of any such notice. If Tenant
shall extend
the term hereof pursuant to the provisions of this Section 2.3,
such extension
shall be automatically effected without the execution of any
additional
documents, but Tenant shall, at Landlord's request, execute an
agreement
confirming the Annual Fixed Rent for the applicable Extended
Term.
"Market
Rate" shall mean the then fair market annual rental rate and
terms
for the Premises for the applicable period (determined as set forth
below).
Within thirty (30) days after Landlord's receipt of a Tenant's
Extension Notice,
Landlord shall provide Landlord's Notice. Within thirty (30) days
after Tenant's
receipt of Landlord's Notice, Tenant shall either accept
Landlord's
determination of the Market Rate or shall propose its determination
of the
Market Rate by providing notice to Landlord. If Tenant disagrees
with Landlord's
designation of the Market Rate, the parties shall meet for the
purpose of
reaching agreement. If the parties cannot agree upon the Market
Rate by the date
that is thirty (30) days following Landlord's receipt of Tenant's
proposal, then
the Market Rate shall be submitted to appraisal as follows: Within
fifteen (15)
days after the expiration of such thirty (30) day period, Landlord
and Tenant
shall designate a mutually acceptable appraiser, or either party
then may
request the American Arbitration Association, Boston office (or any
successor
organization) to designate an independent appraiser in accordance
with its then
prevailing rules.
Any
appraisers selected as herein provided shall have at least ten
(10)
years experience in the leasing, ownership or management of
1,000,000 or more
square feet of floor area of properties of the same type and
quality as the
Building in the Route 128 market area. Each party shall pay one
half (1/2) of
the fees and expenses of the appraiser and all other expenses of
the appraisal.
The parties shall have the opportunity to present evidence in
accordance with
reasonable procedures prescribed by the appraiser. The decision and
award of the
appraiser shall be in writing and shall be final and conclusive on
all parties,
and counterpart copies thereof shall be delivered to both Landlord
and Tenant.
Judgment upon the award of the appraiser may be entered in any
court of
competent jurisdiction.
The
appraiser shall select the Market Rate determination of either
Landlord or Tenant that the appraiser considers closest to his or
her own
determination of the Market Rate of the Premises for the applicable
Extended
Term and render a decision and award as to such determination to
both Landlord
and Tenant (a) within twenty (20) days after the appointment of the
appraiser.
In rendering such decision and award, the appraiser shall assume
(i) that the
Premises are available in the then rental market, (ii) that
Landlord has had a
reasonable time to locate a tenant, (iii) that neither Landlord nor
the
prospective tenant is under a compulsion to rent, (iv) that
Landlord and Tenant
are typically motivated, well-informed and well-advised, and each
is acting in
what it considers its own best interest, (v) the Premises are
appropriate and
desired for immediate occupancy by Tenant and contain no work that
has been
carried out thereon by Tenant, its subtenant(s), or its or
their
successors-in-interest during the Term of this Lease which has
diminished the
rental value of the Premises, and (vi) that in the event the
Premises are
destroyed or damaged by fire or other casualty prior to the
commencement of the
applicable Extended Term, they have been fully restored. In
rendering such
decision and award, the appraiser shall consider the fair market
annual rents
(as the same may change over time and considering any rent
abatement or other
offset against stated annual rents) then being charged for
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comparable space in comparable buildings for the period of the
applicable
Extended Term in the Route 128 market area, but shall not modify
the provisions
of this Lease.
If the
dispute between the parties as to the Market Rate has not been
resolved before the commencement of Tenant's obligation to pay the
Annual Fixed
Rent based upon determination of such Market Rate, then Tenant
shall pay the
Annual Fixed Rent under the Lease for the annual period just ended
until either
the agreement of the parties as to the Market Rate, or the decision
of the
appraiser(s), as the case may be, at which time Tenant shall pay
any
underpayment of the Annual Fixed Rent to Landlord, or Landlord
shall refund any
overpayment of the Annual Fixed Rent to Tenant.
2.4
Measurement of the Premises and Building. Landlord shall cause
its
architect to determine the measurement of the Premises and the
Building in
accordance with the ANSI/BOMA Z65.1 1996 standards. Such
measurement shall occur
only once, shall be made only after reasonable prior notice to
Tenant, and at
Tenant's request the architect shall meet with Tenant or its
architect to
provide any appropriate substantiation.
If the rentable
area of the Premises, as so measured, is different from
the Premises Rentable Area as set forth in Section 1. 1, the
definition of
Premises Rentable Area for all purposes (e.g. Annual Fixed Rent,
Landlord's
Contribution and the Applied Rent Amount) shall be deemed amended
in accordance
with such measurement, and if the Premises Rentable Area as so
measured is not
one-half of the rentable area of the Building as so measured
("Building Rentable
Area"), Tenant's Percentage shall be amended to be the ratio of the
Premises
Rentable Areas as so measured to Building Rentable Area, all
retroactively to
the Commencement Date.
In the
event of any adjustment pursuant to this Section 2.3, Landlord
and
Tenant shall promptly execute a written statement setting forth the
recomputed
Premises Rentable Area and Tenant's Percentage, but the failure by
either party
to execute such a statement shall have no effect on the validity of
such
recomputation.
ARTICLE 3
Commencement and Condition
3.1
Commencement Date. The Commencement Date shall be the
Substantial
Completion Date, as defined in Section 3.2(c).
3.2
Preparation of the Premises.
(a) Landlord and Tenant shall adhere to any schedules for
submittals
and decisions reasonably established by The Richmond Group to have
final
construction drawings ("Tenant's Plans") for the initial
improvements to the
Premises completed on or before the Final Plans Date.
(b) Landlord shall fill in the atrium on the second floor and
perform the alterations and improvements described on Exhibit 1
(the "Shell and
Core Work") and shall perform the alterations and improvements to
the exterior
of the Building described on Exhibit 2 (the "Exterior Work").
Landlord shall
cause the improvements to the second floor lobby common
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<PAGE>
area to be consistent with adjacent areas of the Premises, and
shall seek input
from Tenant regarding the Exterior Work prior to Landlord
finalizing plans
therefor.
Promptly
after approval by Landlord of Tenant's Plans, Landlord shall
also
perform the work specified therein (the "Leasehold Improvement
Work", and
together with the Shell and Core Work and the Exterior Work, as may
be modified
as hereinafter provided, "Landlord's Work"); and Landlord shall use
all
reasonable efforts to complete Landlord's Work diligently, but
Tenant shall have
no claim against Landlord or right to terminate this Lease due to
failure by
Landlord to complete Landlord's Work by any given date, except as
provided in
Section 3.4(d). Landlord shall enter into a contract to perform the
Leasehold
Improvement Work with The Richmond Group provided that The Richmond
Group shall
execute Landlord's standard form of construction contract
containing the
contractor's agreement to perform the Leasehold Improvement Work in
accordance
with Tenant's Plans and Landlord's reasonable requirements,
including, without
limitation, providing customary contractor insurance and
performance and payment
bonds and to substantially complete the Leasehold Improvement Work
not later
than August 31, 2005 (the "Target Delivery Date"), subject to Force
Majeure and
Tenant Delay, as hereinafter defined; otherwise Landlord shall be
free to select
the contractor to perform the Leasehold Improvement Work on the
foregoing terms.
Landlord
shall perform the Shell and Core Work and the Exterior Work at
its sole cost and expense, in a good and workmanlike manner, using
materials
that are new, commercial grade and of first-class quality. Tenant
agrees that
Landlord may make any changes in Landlord's Work from that shown on
Tenant's
Plans or the Exhibits to this Lease, the necessity or desirability
of which
becomes apparent following the Date of this Lease, upon prior
written notice to
Tenant for changes that are not substantial (either individually or
in the
aggregate) and do not increase the cost of Landlord's Work (either
individually
or in the aggregate) and with the approval of Tenant (which
approval shall not
be unreasonably withheld or delayed) for all other changes.
Landlord shall
provide Tenant with an allowance ("Landlord's Contribution") of One
hundred
dollars ($100.00) per square foot of Premises Rentable Area for the
performance
of the Leasehold Improvement Work. To the extent that the cost of
the Leasehold
Improvement Work exceeds Landlord's Contribution (such excess being
the "Excess
Cost"), Tenant shall (at Landlord's election) (i) pay fifty percent
(50%) of the
Excess Cost (as estimated by Landlord) to Landlord upon approval by
Landlord of
Tenant's Plans and the remainder of such Excess Cost within ten
(10) days after
delivery to Tenant of a final accounting of the cost of the
Leasehold
Improvement Work, or (ii) pay the entire Excess Cost within ten
(10) days after
delivery to Tenant of a final accounting of the cost of Leasehold
Improvement
Work. For purposes of this subsection (b), "cost" shall be the
actual cost to
Landlord of performing the Leasehold Improvement Work including,
without
limitation, all architectural and engineering fees and expenses in
preparing
Tenant's Plans or otherwise and all filing fees and other
permitting costs and
all contractor charges ("Contractor Charges") for the cost of work
and
materials, profit, general conditions and overhead and supervision,
plus five
percent (5%) of Contractor Charges as a fee for administering the
Leasehold
Improvement Work on behalf of Landlord. Tenant shall, if requested
by Landlord,
execute an agreement (the "Excess Cost Amendment") confirming
Landlord's
estimate of such Excess Cost, and (subject to Landlord's obligation
to
substantiate the actual Excess Cost following completion of
Landlord's Work)
Tenant's obligation on account thereof within five (5) Business
Days after
Landlord's request therefor.
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(c) The "Substantial Completion Date" shall be the first day as
of
which Landlord's Work has been completed except for items of work
(and, if
applicable, adjustment of equipment and fixtures) which can be
completed after
occupancy has been taken without causing undue interference with
Tenant's use of
the Premises (i.e. so-called "punch list" items), and a temporary
or permanent
certificate of occupancy has been issued. Landlord shall complete
as soon as
conditions permit all "punch list" items and Tenant shall afford
Landlord access
to the Premises for such purposes.
3.3
Conclusiveness of Landlord's Performance. Tenant shall be
conclusively
deemed to have accepted Landlord's Work unless, within ten (10)
months after the
Commencement Date with regard to heat, ventilation and
air-conditioning
equipment and related work or within ninety (90) days after the
Commencement
Date with regard to other items, Tenant gives Landlord a notice
setting forth in
detail those portions of Landlord's Work Tenant does not accept.
Upon Tenant's
request, Landlord shall assign to Tenant any warranties provided to
Landlord in
connection with Landlord's Work which are assignable without
expense to Landlord
provided Tenant shall release Landlord from any liability with
respect to the
matter subject to the warranty.
3.4 Tenant
Delay; Force Majeure. A "Tenant Delay" shall be any delay in
the occurrence of the Substantial Completion Date as a result of a
Direct Delay
(as defined in Section 3.4 (a)), plus any delay in the occurrence
of the
Substantial Completion Date as a result of an Additional Delay (as
defined in
Section 3.4(b)). Tenant shall pay to Landlord (as Additional Rent),
for each day
of Tenant Delay, the amount of Annual Fixed Rent, Additional Rent
and other
charges that would have been payable hereunder as if the Rent
Commencement Date
occurred, and the obligation to pay the full amount of Annual Fixed
Rent,
Additional Rent and other charges (without abatement) had
commenced, immediately
prior to such Tenant Delay.
(a) A "Direct Delay" shall be any of the following:
(i) any request
by Tenant that Landlord delay in the
commencement or completion of the Leasehold Improvement
Work or any other portions of Landlord's Work for any
reason (other than as a result of Landlord's failure to
perform its obligations under this Lease);
(ii) Tenant's failure
to submit Tenant's Plans by the Plan
Submission Date, or to obtain Landlord's approval
thereof by the Final Plans Date, or to execute the
Excess Cost Agreement if requested by Landlord or to pay
when due any Excess Cost;
(iii) any request by Tenant for any change in any of Tenant's
Plans after the Final Plans Date;
(iv) any requirement
of Tenant's Plans identified by Landlord
at time of Landlord's approval of Tenant's Plans as a
long lead item; or
(v) any other act or omission of
Tenant or its officers,
agents, servants or contractors (including unreasonable
delay or withholding of
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<PAGE>
approval to changes
desired by Landlord and which
require Tenant's approval, as described in Subsection
3.2(b)).
(b) An "Additional Delay" shall be (i) any reasonably necessary
change in Landlord's construction schedule resulting from a Direct
Delay or (ii)
any "Force Majeure" condition (as defined in subsection (e) hereof)
which would
have occurred after the Substantial Completion Date but for a
Direct Delay.
(c) If, as a result of a Tenant Delay, the Substantial
Completion
Date is delayed in the aggregate for more than ninety (90) days,
Landlord may
(but shall not be required to) at any time thereafter terminate
this Lease by
giving notice of such termination to Tenant and thereupon this
Lease shall
terminate without further liability or obligation on the part of
either party,
except that Tenant shall pay to Landlord the cost theretofore
incurred by
Landlord in performing Landlord's Work, plus an amount equal to
Landlord's
out-of-pocket expenses incurred in connection with this Lease,
including,
without limitation, brokerage and legal fees, together with any
amount required
to be paid pursuant to this Section 3.4 through the date of
termination. If as a
result of Force Majeure the Substantial Completion Date is delayed
for more than
six (6) months, Landlord may (but shall not be required to) at any
time
thereafter terminate this Lease by giving notice of such
termination to Tenant
and thereupon this Lease shall terminate without further liability
or obligation
on the part of either party.
(d) Landlord shall comply with all of its obligations and
enforce
all of its rights under the contract it shall execute for the
performance of
Landlord's Work. If nevertheless the Substantial Completion Date
has not
occurred within ninety (90) days after the Target Delivery Date (as
it may be
extended pursuant to Section 3.4), Tenant shall have the right to
terminate this
Lease by giving notice to Landlord not later than thirty (30) days
after the
expiration of such ninety (90) day period; and this Lease shall
cease and come
to an end without further liability or obligation on the part of
either party
(except, if applicable, for any undischarged obligations of Tenant
arising
pursuant to Section 3.7, which obligations shall remain in effect)
on the giving
of such notice, it being agreed that time is of the essence with
respect to the
giving of such notice. Tenant's termination right shall be Tenant's
sole and
exclusive remedy at law or in equity for Landlord's failure to
complete
Landlord's Work.
(e) "Force Majeure" shall be defined as any strike or other
labor
trouble, fire, flood or other casualty, breakage, accident,
repairs, unusually
severe weather, governmental preemption of priorities or other
controls in
connection with a national or other public emergency, governmental
moratoria, or
inaction of governmental authority (or shortages of fuel, supplies
or labor
resulting therefrom), war, civil commotion, labor or
transportation
difficulties, inability to obtain supplies, or any other cause,
whether similar
or dissimilar, beyond Landlord's reasonable control.
(f) The Target Delivery Date shall be extended by the number of
days
of delay due to any Tenant Delay or Force Majeure.
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3.5
Construction Representatives. Both Landlord and Tenant shall
appoint
one individual as its "Construction Representative" who is
authorized to act on
its behalf in connection with any matters arising pursuant to this
Article 3.
The Construction Representative may be changed from time to time by
notice
hereunder from the then current Construction Representative to the
other party's
Construction Representative or by notice from Landlord or Tenant
pursuant to
Section 10.1. The initial Construction Representatives shall be
Michael Marx
(Landlord) and Christine H. Wang (Tenant). Notwithstanding Section
10.1, any
notices or other communication under this Article 3 may be made by
letter or
other writing sent by U.S. mail, facsimile or email, provided the
communication
is made by one party's Construction Representative to the other
party's
Construction Representative.
3.6
Application of Remaining Contribution. To the extent the cost of
the
Leasehold Improvement Work shall be less than Landlord's
Contribution, Tenant
may apply such difference (the "Difference") toward the following
(the
"Associated Costs"): (i) architectural services incurred by Tenant
in preparing
Tenant's Plans (including any amounts incurred prior to the Date of
this Lease),
(ii) construction management services incurred by Tenant in
connection with the
Leasehold Improvement Work, (iii) costs incurred by Tenant to
install in the
Premises any "work" as defined in Section 6.2.5 of this Lease
including lab
benches and fixtures, (iv) costs (including reasonable third party
relocation
management fees) incurred by Tenant in moving from 10K Gill Street
to the
Premises, (v) costs incurred by Tenant to install telephone, data
and electrical
cabling and wiring in the Premises and (vi) up to $100,000 of costs
incurred by
Tenant to purchase new office furniture; and to the extent of the
remaining
Difference, Landlord shall reimburse Tenant for such expenses
within thirty (30)
days of receipt of request therefor together with paid invoices,
and provided
that there shall exist no Default of Tenant and such invoices are
delivered to
Landlord prior to the first anniversary of the Commencement
Date.
To the
extent the cost of the Leasehold Improvement Work plus any
amounts
paid by Landlord toward the Associated Costs shall be less than
Landlord's
Contribution, up to the Applied Rent Amount of such remaining
difference may be
applied to the first installment(s) of Annual Fixed Rent due
hereunder, provided
Tenant shall elect to make such application by notice to Landlord
on or before
the Rent Commencement Date. The "Applied Rent Amount" is $5.00 per
square foot
of Premises Rentable Area.
Should
there remain any portion of Landlord's Contribution that shall
not
have been applied toward the cost of the Leasehold Improvement
Work, the
Associated Costs or application against Annual Fixed Rent as
provided in the
previous paragraph, such remaining portion shall be available to
reimburse
Tenant for any "work" as defined in Section 6.2.5 of this Lease
performed to the
Premises in compliance with the terms of this Lease, further
provided that there
shall exist no Default of Tenant and provided paid invoices for
such work are
provided to Landlord on or before the fourth anniversary of the
Commencement
Date.
Any
portion of Landlord's Contribution not applied toward the cost of
the
Leasehold Improvement Work, the Associated Costs, credit against
Annual Fixed
Rent or work, as described in the three preceding paragraphs, shall
be forfeited
by Tenant and shall become Landlord's property.
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3.7 Early
Access. Landlord acknowledges that Tenant desires to occupy a
portion of the Premises of approximately five thousand (5,000)
rentable square
feet as soon as possible after May 31, 2005, irrespective of the
fact that the
Commencement Date may not have occurred. Landlord therefore agrees
that, at such
point as, in Landlord's reasonable judgment, Landlord's Work has
proceeded to
such point where Tenant may, in compliance with applicable law and
building
codes, occupy such portion as desired by Tenant without interfering
with the
performance of Landlord's Work, Tenant may occupy such portion of
the Premises
for the Permitted Uses. In connection with such access, Tenant
agrees to cease
promptly upon notice from Landlord any activity (including mere
possession of
such area) which shall interfere with or delay the performance of
Landlord's
Work. Such access by Tenant shall be deemed to be subject to all of
the
applicable provisions of this Lease, except that the Commencement
Date shall not
be deemed to have occurred but Tenant shall pay rent monthly in
advance during
such pre-Commencement Date period at a per annum rate of $16.25 per
rentable
square foot so occupied. If Tenant fails or refuses to comply with
any of the
obligations described or referred to above, then immediately upon
notice to
Tenant, Landlord may revoke Tenant's rights of access to the
Premises until the
Commencement Date.
ARTICLE 4
Rent, Additional Rent, Insurance and Other Charges
4.1 The
Annual Fixed Rent. Commencing on that date (the "Rent
Commencement
Date") which is two (2) months following the Commencement Date,
Tenant shall pay
Annual Fixed Rent to Landlord, or as otherwise directed by
Landlord, without
offset, abatement (except as provided in Article 7), deduction or
demand. Annual
Fixed Rent shall be payable in equal monthly installments, in
advance, on the
first day of each and every calendar month after the Rent
Commencement Date and
during the term of this Lease, at the Original Address of Landlord,
or at such
other place as Landlord shall from time to time designate by
notice, by check
drawn on a domestic bank.
Annual
Fixed Rent for any partial month shall be prorated on a daily
basis, and if Annual Fixed Rent commences on a day other than the
first day of a
calendar month, the first payment which Tenant shall make to
Landlord shall be
payable on the date Annual Fixed Rent commences and shall be equal
to such
pro-rated amount plus the installment of Annual Fixed Rent for the
succeeding
calendar month. Annual Fixed Rent for any month during which Annual
Fixed Rent
shall increase after the first day of such month shall be the sum
of similarly
pro-rated amounts for both the period prior to such change and the
period from
and after such change.
4.2
Additional Rent. Tenant covenants and agrees to pay Tenant's
Percentage of Taxes and Operating Costs as provided in Sections
4.2.1 and 4.2.2,
and all other charges and amounts payable by or due from Tenant to
Landlord (all
such amounts referred to in this sentence being "Additional
Rent").
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<PAGE>
4.2.1 Real Estate Taxes. Tenant shall pay to Landlord, as
Additional
Rent, Tenant's Percentage of Taxes (as hereinafter defined)
assessed against the
Property (or estimated to be due by governmental authority) for any
fiscal tax
period (a "Tax Year") during the term of this Lease (Tenant's
Percentage of
Taxes being "Tenant's Tax Obligation"). Upon the request of Tenant,
Landlord
shall deliver to Tenant copies of all applicable tax bills and the
calculation
of Tenant's Tax Obligation. Except as otherwise provided in the
immediately
following paragraph, Tenant shall pay Tenant's Tax Obligation to
Landlord at
least thirty (30) days prior to the date or dates within any year
during the
term hereof that the same, or any fractional share thereof, shall
be due and
payable to any governmental authority responsible for collection of
same (as
stated in a notice to Tenant given at least thirty (30) days prior
to the date
or dates any such payment shall be due, which notice shall set
forth the manner
of computation of Tenant's Tax Obligation due from Tenant), except
that such
payment shall be made to Landlord not later than thirty (30) days
after such
notice to Tenant, if such notice is given subsequent to the date
thirty (30)
days prior to the date the same is due and payable as
aforesaid.
Tenant
shall pay to Landlord, as Additional Rent on the first day of
each
calendar month during the term but otherwise in the manner provided
for the
payment of Annual Fixed Rent, estimated payments on account of
Tenant's Tax
Obligation, such monthly amounts to be sufficient to provide
Landlord by the
time Tax payments are due or are to be made by Landlord a sum equal
to Tenant's
Tax Obligation, as reasonably estimated by Landlord from time to
time on account
of Taxes for the then current Tax Year. If the total of such
monthly remittances
for any Tax Year is greater than Tenant's Tax Obligation for such
Tax Year,
Landlord shall credit such overpayment against Tenant's subsequent
obligations
on account of Taxes (or promptly refund such overpayment if the
term of this
Lease has ended and Tenant has no further obligations to Landlord);
if the total
of such remittances is less than Tenant's Tax Obligation for such
Tax Year,
Tenant shall pay the difference to Landlord within thirty (30) days
after being
so notified by Landlord.
If, after
Tenant shall have made all payments due to Landlord pursuant to
this subsection 4.2.1, Landlord shall receive a refund of any
portion of Taxes
as a result of an abatement of such Taxes by legal proceedings,
settlement or
otherwise, Landlord shall credit to Tenant's subsequent obligations
on account
of Taxes (or promptly refund such overpayment if the term of this
Lease has
ended and Tenant has no further obligations to Landlord) Tenant's
Percentage of
that percentage of the refund (after first deducting any reasonable
expenses,
including attorneys', consultants' and appraisers' fees, incurred
in connection
with obtaining any such refund) which equals the percentage of the
applicable
Tax Year included in the term hereof. In addition to Tenant's
rights pursuant to
Mass. Gen Laws Ann. c. 59 Section 59, from time to time, Landlord,
in its
reasonable discretion, shall make commercially reasonable efforts
to challenge
obvious and materially unfair assessments of Taxes by contesting or
objecting to
increases in the determination of the fair market value of the
Property.
In the
event that the Commencement Date shall occur or the term of
this
Lease shall expire or be terminated during any Tax Year, or should
the Tax Year
or period of assessment of real estate taxes be changed or be more
or less than
one (1) year, or should Tenant's Percentage be modified during any
Tax Year due
to a change in the rentable area of the Building and/or the
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Premises or otherwise, as the case may be, then the amount of
Tenant's Tax
Obligation which may be otherwise payable by Tenant as provided in
this
subsection 4.2.1 shall be pro-rated on a daily basis based on a 365
day Tax
Year.
"Taxes"
shall mean all taxes, assessments, excises and other charges
and
impositions (including penalties and interest only to the extent
due to Tenant's
failure to make payments in accordance with this Section 4.2. 1)
which are
general or special, ordinary or extraordinary, foreseen or
unforeseen, of any
kind or nature which are levied, assessed or imposed at any time
during the term
by any governmental authority upon or against or with respect to
the Property,
Landlord or the owner or lessee of personal property used by or on
behalf of
Landlord in connection with routine maintenance and operation of
the Property,
or taxes in lieu thereof, and additional types of taxes to
supplement real
estate taxes due to legal limits imposed thereon. If, at any time
during the
term of this Lease, any tax or excise on rents or other taxes,
however
described, are levied or assessed against Landlord, either wholly
or partially
in substitution for, or in addition to, real estate taxes assessed
or levied on
the Property, such tax or excise on rents or other taxes shall be
included in
Taxes; however, Taxes shall not include franchise, estate,
inheritance,
succession, capital levy, income (except to the extent that a tax
on income or
revenue is levied solely on rental revenues and not on other types
of income and
then only from rental revenue generated by the Property) or excess
profits taxes
assessed on Landlord. Taxes also shall include all court costs,
attorneys',
consultants' and accountants' fees, and other expenses incurred by
Landlord
contesting Taxes through and including all appeals. Taxes shall
include any
estimated payment made by Landlord on account of a fiscal tax
period for which
the actual and final amount of taxes for such period has not been
determined by
the governmental authority as of the date of any such estimated
payment.
4.2.2 Operating Costs. Tenant shall pay to Landlord, as
Additional
Rent, Tenant's Percentage of Operating Costs (as hereinafter
defined) paid or
incurred by Landlord with respect to the Property in any
twelve-month period
established by Landlord (an "Operating Year") during the term of
this Lease.
Except as otherwise provided in the immediately following paragraph
Tenant shall
pay Tenant's Percentage of Operating Costs ("Tenant's Operating
Cost
Obligation") to Landlord within twenty (20) days from the date
Landlord shall
furnish to Tenant an itemized statement thereof, prepared,
allocated and
computed in accordance with then prevailing customs and practices
of the real
estate industry, consistently applied. Any year-end statement by
Landlord
relating to Operating Costs (other than an invoice for a monthly
estimate) shall
be final and binding upon Tenant unless it shall within thirty (30)
days after
receipt thereof, contest any item therein by giving notice to
Landlord
specifying each item contested and the reasons therefor.
Tenant
shall pay to Landlord, as Additional Rent on the first day of
each
calendar month during the term but otherwise in the manner provided
for the
payment of Annual Fixed Rent, estimated payments on account of
Tenant's
Operating Cost Obligation, such monthly amounts to be sufficient to
provide to
Landlord, by the end of each Operating Year, a sum equal to the
Tenant's
Operating Cost Obligation for such Operating Year, as reasonably
estimated by
Landlord from time to time during such Operating Year. If, at the
expiration of
each Operating Year in respect of which monthly installments of
Operating Cost
Obligation shall have been made as aforesaid, the total of such
monthly
remittances is greater than the Tenant's Operating Cost Obligation
for such
Operating Year, Landlord shall credit such overpayment against
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<PAGE>
Tenant's subsequent obligations on account of Operating Costs (or
promptly
refund such overpayment if the term of this Lease has ended and
Tenant has no
further obligation to Landlord); if the total of such remittances
is less than
the Operating Cost Obligation for such Operating Year, Tenant shall
pay the
difference to Landlord within ten (10) days after being so notified
by Landlord.
In the
event that the Commencement Date shall occur or the term of
this
Lease shall expire or be terminated during any Operating Year or
Tenant's
Percentage shall be modified during any Operating Year due to a
change in the
rentable area of the Building and/or the Premises or otherwise, as
the case may
be, then the amount of Tenant's Operating Cost Obligation which may
be payable
by Tenant as provided in this subsection 4.2.2 shall be pro-rated
on a daily
basis based on a 365 day Operating Year.
"Operating
Costs" shall include all costs and expenses reasonably paid or
incurred for the operation, cleaning, management, maintenance,
repair, upkeep
and security of the Property, including, without limitation:
(a) all salaries, wages, fringe benefits, payroll taxes and
workmen's compensation insurance premiums related thereto and all
other costs
paid or incurred with respect to employment of personnel engaged in
operation,
administration, cleaning, maintenance, repair, upkeep and security
of the
Property including, without limitation, supervisors, property
managers,
accountants, bookkeepers, janitors, carpenters, engineers,
mechanics,
electricians and plumbers;
(b) all utilities and other costs related to provision of heat
(including oil, steam and/or gas), electricity, air conditioning,
and water
(including sewer charges) and other utilities to the Property
(exclusive of
reimbursement to Landlord for any of same received as a result of
direct billing
to any tenant of the Building);
(c) all costs, including supplies, material and equipment costs,
for
cleaning and janitorial services to the common areas of the
Property (including,
without limitation, exterior window cleaning), and interior and
exterior
landscaping and pest control;
(d) the cost of replacements for tools and other similar
equipment
used in the repair, maintenance, cleaning and protection of the
Property,
provided that, in the case of any such equipment used jointly on
other property
of Landlord, such costs shall be suitably prorated among the
Property and such
other properties;
(e) all costs and premiums for fire, casualty, rental income,
liability and such other insurance as may be maintained reasonably
from time to
time by Landlord relating to the Property;
(f) all costs of maintaining, repairing, decorating, operating,
administering, inspecting and protecting the Property (including,
without
limitation, lighting, installation, maintenance, repair and
alteration of signs,
snow removal on the Property and adjacent walks and ways, paving,
patching and
restriping of parking areas and operation, maintenance, replacement
and repair
of heating, ventilating and air conditioning equipment, fire
protection and
security systems, elevators, roofs, parking areas and any other
common Building
equipment,
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<PAGE>
systems or facilities), and all costs of structural and other
repairs and
replacements (other than repairs for which Landlord has received
full
reimbursement from contractors, other tenants of the Building or
from others)
necessary to keep the Property in good working order, repair,
appearance and
condition;
(g) costs of compliance with any laws, rules, regulations,
ordinances, agreements or standards applicable to the Building or
the Property,
which conformance is not the responsibility of any tenant of the
Building, and
which Landlord elects or is required to perform, and costs of
testing and
monitoring for any Hazardous Materials (as defined in Section
6.2.8) in the
Building or Property, which is not the responsibility of any tenant
of the
Building, and which Landlord elects to perform;
(h) all costs incurred in connection with the administration
and
supervision of all matters referred to in items (a) through (g)
hereof and in
performing Landlord's obligations under Article 5, including
Landlord's office
overhead costs provided that, if any such administrative or
supervisory
personnel are also employed on other property of Landlord, such
cost of
compensation shall be suitably prorated among the Property and such
other
properties;
(i) payments under all service contracts relating to matters
referred to in Items (a) through (h) hereof;
(j) a management fee of three percent (3%) of gross rents payable
by
tenants of the Property; and
(k) reasonable attorney's fees and disbursements (exclusive of
any
such fees and disbursements incurred in tax abatement proceedings
or in the
preparation of leases) and auditing and other professional fees and
expenses.
If, after
twenty-four months after the Commencement Date and during the
term of this Lease, Landlord shall make any capital expenditure,
the total cost
of which is not included in Operating Costs for the Operating Year
in which it
was made, Landlord may include in Operating Costs for the Operating
Year in
which such expenditure was made and in Operating Costs for each
succeeding
Operating Year an annual charge-off of such capital expenditure.
Annual
charge-offs shall be equal to the level payments of principal and
interest
necessary to amortize the original capital expenditure over the
useful life of
the improvement, repair, alteration or replacement made with the
capital
expenditure using an interest rate reasonably determined by
Landlord as being
the interest rate being charged at the time of the original capital
expenditure
for long-term mortgages by institutional lenders on like
properties; and the
useful life shall be determined reasonably by Landlord in
accordance with then
prevailing customs and practices of the real estate industry,
consistently
applied.
Notwithstanding any other contrary provision, Operating Costs shall
not
include:
(i) the cost of
any additions or expansions to the rentable
areas of the Property;
(ii) any leasehold
improvements performed to any premises
intended to be occupied by individual tenants;
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<PAGE>
(iii) any reserves for future expenditures not yet incurred;
(iv) ground lease
rental;
(v) costs
incurred by Landlord for repair or restoration to
the extent that Landlord is reimbursed by insurance or
condemnation proceeds or that the same is covered by
warranty;
(vi) attorneys' fees,
leasing commissions and other costs and
expenses incurred in connection with negotiations or
disputes with present or prospective tenants or other
occupants of, or persons, firms or entities with respect
to, the Property;
(vii) expenses in connection with services or benefits that
are not offered to Tenant;
(viii) costs incurred by Landlord due to the negligence or
misconduct (including any violation of law) of Landlord
or its agents, contractors, licensees and employees or
the violation by Landlord or any tenants or other
occupants of the terms and conditions of any lease of
space or other agreements including this Lease;
(ix)
interest, principal,
points and fees on debts or
amortization on any mortgage or mortgages or any other
debt instrument encumbering all or any portion of the
Property;
(x) all items
and services for which Tenant or any other
tenant reimburses Landlord or that Landlord provides
exclusively to one or more tenants (other than Tenant)
but not all tenants;
(xi) advertising and
promotional expenditures in connection
with leasing the Property;
(xii) electric power and any other utility costs for which any
tenant or occupant directly contracts with the local
public service company;
(xiii) any costs relating to clean-up of hazardous materials,
asbestos and the like;
(xiv) any charges for depreciation of the Building, fixtures
or otherwise; and
(xv) the cost of any
electric current or other utility
furnished to any leasable area of the Building.
In
addition, if during any portion of any Operating Year for which
Operating Costs are being computed, less than ninety-five percent
(95%) of the
rentable area of the Building was leased to tenants or if Landlord
is supplying
less than ninety-five percent (95%) of the rentable
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<PAGE>
area of the Building with the services and utilities being supplied
hereunder,
Landlord may, at its option, reasonably project, on an item-by-item
basis, the
Operating Costs that would have been incurred if ninety-five
percent (95%) of
the Building were occupied for such Operating Year and such
services and
utilities were being supplied to ninety-five percent (95%) of the
rentable area
of the Building, and such projected amount shall, for the purposes
hereof, be
deemed to be the Operating Costs for such Operating Year.
4.3
Personal Property and Sales Taxes. Tenant shall pay all taxes
charged,
assessed or imposed upon the personal property of Tenant and all
taxes on the
sales of services or inventory, merchandise and any other goods by
Tenant in or
upon the Premises.
4.4
Insurance. Tenant shall, at its expense, take out and maintain,
throughout the tenor of this Lease, the following insurance:
4.4.1 Commercial general liability insurance (on an occurrence
basis
and on a 1988 ISO CGL form or its equivalent, including without
limitation,
broad form contractual liability, bodily injury, property damage,
fire legal
liability, and products and completed operations coverage) under
which Tenant is
named as an insured and Landlord and Reit Management and Research
LLC (and the
holder of any mortgage on the Premises or Property, as set out in a
notice from
time to time) are named (on an ISO Form 20226 or as otherwise
acceptable to
Landlord) as additional insureds as their interests may appear, in
an amount
which shall, at the beginning of the term, be at least equal to the
Commercial
General Liability Insurance Limits, and, which, from time to time
during the
term, shall be for such higher limits, if any, as Landlord shall
reasonably
determine to be customarily carried in the area in which the
Premises are
located at property comparable to the Premises and used for similar
purposes;
Worker's
compensation insurance with statutory limits covering all of
Tenant's employees working on the Premises; and
So-called
"special form" property insurance on a "replacement cost" basis
with an agreed value endorsement covering all furniture,
furnishings, fixtures
and equipment and other personal property brought to the Premises
by Tenant and
all improvements and betterments to the Premises performed at
Tenant's expense.
4.4.2 All such policies shall contain deductibles not in excess
of
that reasonably approved by Landlord, shall contain a clause
confirming that
such policy and the coverage evidenced thereby shall be primary
with respect to
any insurance policies carried by Landlord and shall be obtained
from
responsible companies qualified to do business and in good standing
in the state
or district in which the Property is located, which companies shall
have a
general policy holder's rating of at least A and a financial class
of at least
VIII by A.M. Best Company, Inc.. A copy of each paid-up policy
evidencing such
insurance (appropriately authenticated by the insurer) or a
certificate (on
ACORD Form 27 or its equivalent) of the insurer, certifying that
such policy has
been issued and paid in full, providing the coverage required by
this Section
and containing provisions specified herein, shall be delivered to
Landlord prior
to the commencement of the term of this Lease and, upon renewals,
not less than
three (3) days prior to the expiration of such coverage. Each such
policy shall
be non-cancelable and not materially changed with respect to the
interest of
Landlord and such mortgagees of the Property (and others
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that are in privity of estate with Landlord of which Landlord
provides notice to
Tenant from time to time) without at least thirty (30) days' prior
written
notice thereto. Any insurance required of Tenant under this Lease
may be
furnished by Tenant under a blanket policy carried by it provided
that such
blanket policy shall reference the Premises, and shall guarantee a
minimum limit
available for the Premises equal to the insurance amounts required
in this
Lease. Landlord may, at any time, and from time to time, inspect
and/or copy any
and all insurance policies required to be procured by Tenant
hereunder.
4.4.3 Landlord
and Tenant shall each endeavor to secure an
appropriate clause in, or an endorsement upon, each property damage
insurance
policy obtained by it and covering the Building, the Premises or
the personal
property, fixtures and equipment located therein or thereon,
pursuant to which
the respective insurance companies waive subrogation and permit the
insured,
prior to any loss, to agree with a third party to waive any claim
it might have
against said third party. The waiver of subrogation or permission
for waiver of
any claim hereinbefore referred to shall extend to the agents of
each party and
its employees and, in the case of Tenant, shall also extend to all
other persons
and entities occupying or using the Premises by, through or under
Tenant. If and
to the extent that such waiver or permission can be obtained only
upon payment
of an additional charge then the party benefiting from the waiver
or permission
shall pay such charge upon demand, or shall be deemed to have
agreed that the
party obtaining the insurance coverage in question shall be free of
any further
obligations under the provisions hereof relating to such waiver or
permission
from such insurance companies.
Subject to
the foregoing provisions of this Subsection 4.4.3, and insofar
as may be permitted by the terms of the insurance policies carried
by it, each
party hereby releases the other with respect to any claim which it
might
otherwise have against the other party for any loss or damage,
excluding any
deductible amounts, to the extent such damage is actually covered
or would have
been covered by policies of insurance required by this Lease to be
carried by
the respective parties hereunder. In addition, Tenant agrees to
exhaust any and
all claims against its insurer(s) prior to commencing an action
against Landlord
for any property loss.
4.5
Utilities. Tenant shall pay all charges related to the supply
of
electricity and natural gas to the Premises, whether designated as
a charge,
tax, assessment, fee or otherwise, all such charges to be paid as
the same from
time to time become due. Except as otherwise provided in this
Subsection 4.5 or
in Article 5, it is understood and agreed that Tenant shall make
its own
arrangements for the installation or provision of all utilities and
services and
that Landlord shall be under no obligation to furnish any utilities
to the
Premises.
Tenant
acknowledges that Annual Fixed Rent does not include the cost
of
supplying electricity or water and sewer service to the Premises.
If the utility
serving the Premises shall agree to separate metering, electricity
usage shall
be separately metered (and the cost of installing such separate
metering shall
be included as part of the Shell and Core Work) and Tenant shall
pay all bills
for the supply of electricity to the Premises during the term of
this Lease
directly to the utility company furnishing the same. If such
separate metering
is not available with respect to the Premises, then Tenant shall,
during such
portion of the term as such separate metering is not in effect, pay
as
Additional Rent all cost of electricity supplied to the Premises as
determined
in good faith by Landlord by submetering or similar device and the
cost of
operating, maintaining and repairing (but not installing, which
shall be done as
part of the
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Shell and Core Work, if applicable) any meter or other device used
to measure
Tenant's electrical consumption and any cost incurred by Landlord
in keeping
account of or determining Tenant's electrical consumption. Tenant
shall pay as
Additional Rent all cost of water and sewer service for the
Premises during the
term as determined by Landlord by submetering or other similar
device and the
cost of operating, maintaining and repairing (but not installing,
which shall be
done as part of the Shell and Core Work) any meter or other device
used to
measure water consumption and any cost incurred by Landlord in
keeping account
of or determining Tenant's water consumption. Alternatively, at
Landlord's
option, Tenant shall pay Tenant's Percentage of the charges for
electricity
service and/or the charges for water and sewer service during the
term allocable
to those portions of the Building leased or intended to be leased
to tenants,
within ten days of invoice therefor, provided however if some or
all of the
areas leased or intended to be leased to tenants are separately
metered for
electricity and/or water, such Tenant's Percentage for purposes of
this
Subsection 4.5 only shall be determined by dividing the rentable
area of the
Premises by the rentable area of the portions of the Building not
separately
metered for such service.
4.6 Late
Payment of Rent. If any installment of Annual Fixed Rent or any
Additional Rent is not paid on or before the date the same is due,
it shall bear
interest (as Additional Rent) from the date due until the date paid
at the
Default Rate (as defined in Section 8.4). In addition, if any
installment of
Annual Fixed Rent or Additional Rent is unpaid for more than ten
(10) days after
the date due, Tenant shall pay to Landlord a late charge equal to
the greater of
One Hundred Dollars ($100) or three percent (3%) of the delinquent
amount. The
parties agree that the amount of such late charge represents a
reasonable
estimate of the cost and expense that would be incurred by Landlord
in
processing and administration of each delinquent payment by Tenant,
but the
payment of such late charges shall not excuse or cure any default
by Tenant
under this Lease. Absent specific provision to the contrary, all
Additional Rent
shall be due and payable in full ten (10) days after demand by
Landlord.
4.7
Security Deposit. Upon execution of this Lease, Tenant shall
deposit
with Landlord the Security Deposit. The Security Deposit shall be
held by
Landlord as security for the faithful performance of all the terms
of this Lease
to be observed and performed by Tenant. The Security Deposit shall
not be
mortgaged, assigned, transferred or encumbered by Tenant and any
such act on the
part of Tenant shall be without force and effect and shall not be
binding upon
Landlord. Tenant shall cause the Security Deposit to be maintained
throughout
the term in the amount set forth in Section 1.1, subject to
reduction as
hereinafter provided. The Security Deposit shall be reduced to
$350,000 as of
the first anniversary of the Rent Commencement Date, to $250,000 as
of the
second anniversary of the Rent Commencement Date, to $150,000 as of
the third
anniversary of the Rent Commencement Date, and to $100,000 as of
the fourth
anniversary of the Rent Commencement Date; provided, however, that
no reduction
in the Security Deposit shall occur once there shall have existed a
Default of
Tenant as defined in Section 8.1.
Tenant
shall have the right to post the Security Deposit in the form of
a
letter of credit (the "Letter of Credit"), which shall (a) be
unconditional and
irrevocable and otherwise in form and substance reasonably
satisfactory to
Landlord; (b) permit multiple draws; (c) be issued by a commercial
bank
reasonably acceptable to Landlord from time to time; (d) be made
payable to, and
expressly transferable and assignable at no charge by, Landlord but
only to the
holder from
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time to time of the interest of Landlord under this Lease (and if
the issuer
shall impose a charge for transfer, Tenant shall pay such charge);
(e) be
payable at sight upon presentment of a sight draft accompanied by a
certificate
of Landlord stating either that Tenant is in default under this
Lease or that
Landlord is otherwise permitted to draw upon such Letter of Credit
under the
express terms of this Lease, and the amount that Landlord is owed
(or is
permitted to draw) in connection therewith; and (f) either expire
not earlier
than ninety (90) days following the expiration of the tern of this
Lease, or be
replaced not less than thirty (30) days prior to the expiration of
the then
current Letter of Credit so that the original Letter of Credit or a
replacement
thereof shall be in full force and effect throughout the term of
this Lease and
for a period of at least ninety (90) days thereafter. Tenant shall
maintain the
Letter of Credit in the amount of the Security Deposit as the same
may be
reduced as provided above and shall deliver to Landlord any
replacement Letter
of Credit not less than thirty (30) days prior to the expiration of
the then
current Letter of Credit. Any reduction in the amount of the Letter
of Credit
may be accomplished by Landlord's surrender of the existing Letter
of Credit in
return for Landlord's contemporaneous receipt of a new Letter of
Credit in the
lower amount. Notwithstanding anything in this Lease to the
contrary, any grace
period or cure periods which are otherwise applicable under Section
8.1 hereof,
shall not apply to any of the foregoing, and, specifically, if
Tenant fails to
comply with the requirements of subsection (f) above or if Tenant
shall fail to
maintain the Letter of Credit in the full amount of the Security
Deposit after
any draw thereon by Landlord,. Landlord shall have the immediate
right to draw
upon the Letter of Credit in full and hold the proceeds thereof as
a cash
security deposit. Each Letter of Credit shall be issued by a
commercial bank
that has a credit rating with respect to certificates of deposit,
short term
deposits or commercial paper of at least P-2 (or equivalent) by
Moody's Investor
Service, Inc., or at least A-2 (or equivalent) by Standard &
Poor's Corporation.
If the issuer's credit rating is reduced below P-2 (or equivalent)
by Moody's
Investor Service, Inc., or at least A-2 (or equivalent) by Standard
& Poor's
Corporation, or if the financial condition of the issuer changes in
any other
materially adverse way, then Landlord shall have the right to
require that
Tenant obtain from a different issuer a substitute Letter of Credit
that
complies in all respects with the requirements of this Section, and
Tenant's
failure to obtain such substitute Letter of Credit within twenty
(20) days after
Landlord's demand therefor (with no other notice, or grace or cure
period being
applicable thereto) shall entitle Landlord immediately to draw upon
the existing
Letter of Credit in full, without any further notice to Tenant.
Landlord may
use, apply or retain the proceeds of the Letter of Credit to the
same extent
that Landlord may use, apply or retain any cash security deposit,
as set forth
herein. If Landlord draws against the Letter of Credit and uses or
applies the
proceeds as Landlord could apply the Security Deposit in accordance
with this
Lease, Tenant shall, within ten (10) days after notice from
Landlord, provide
Landlord with either an additional Letter of Credit in the amount
so drawn or an
amendment to the existing Letter of Credit restoring the amount
thereof to the
amount initially provided. Tenant hereby agrees to cooperate
promptly, at its
expense with Landlord to execute and deliver to Landlord any
modifications,
amendments and replacements of the Letter of Credit, as Landlord
may reasonably
request to carry out the terms and conditions hereof.
If the
Annual Fixed Rent or Additional Rent payable hereunder shall be
overdue and unpaid or should Landlord make any payment on behalf of
the Tenant,
or Tenant shall fail to perform any of the terms of this Lease,
then Landlord
may, at its option and without notice or prejudice to any other
remedy which
Landlord may have on account thereof, appropriate and apply the
entire Security
Deposit or so much thereof as may be necessary to compensate
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Landlord toward the payment of Annual Fixed Rent, Additional Rent
or other sums
or loss or damage sustained by Landlord due to such breach by
Tenant; and Tenant
shall forthwith upon demand restore the Security Deposit to the
amount stated in
Section 1.1. Notwithstanding the foregoing, upon the application by
Landlord of
all or any portion of the Security Deposit (with or without notice
thereof to
Tenant) to compensate Landlord for a failure by Tenant to pay any
Annual Fixed
Rent or Additional Rent when due or to perform any other obligation
hereunder,
and until Tenant shall have restored the Security Deposit to the
amount required
by Section 1.1, Tenant shall be deemed to be in default in the
payment of
Additional Rent for purposes of Section 8.l(a)(I) hereof. So long
as Tenant
shall not be in default of its obligations under this Lease,
Landlord shall
return the Security Deposit, or so much thereof as shall have not
theretofore
been applied in accordance with the terms of this Section 4.7 (and
less any
amounts Landlord shall estimate shall be due from Tenant following
year-end
reconciliation of Operating Costs and Taxes) to Tenant promptly
following the
expiration or earlier termination of the term of this Lease and the
surrender of
possession of the Premises by Tenant to Landlord in accordance with
the terms of
this Lease. While Landlord holds the Security Deposit, Landlord
shall have no
obligation to pay interest on the same and shall have the right to
commingle the
same with Landlord's other funds. If Landlord conveys Landlord's
interest under
this Lease, the Security Deposit, or any part thereof not
previously applied,
shall be turned over by Landlord to Landlord's grantee, and Tenant
shall look
solely to such grantee for proper application of the Security
Deposit in
accordance with the terms of this Section 4.7 and the return
thereof in
accordance herewith. The holder of a mortgage on the Property shall
not be
responsible to Tenant for the return or application of the Security
Deposit,
whether or not it succeeds to the position of Landlord hereunder,
unless such
holder actually receives the Security Deposit.
ARTICLE 5
Landlord's Covenants
5.1
Affirmative Covenants. Landlord shall, during the term of this
Lease
provide the following:
5.1.1 Heat and Air-Conditioning. Landlord shall maintain the
central
Building heat, ventilation and air-conditioning equipment ("HVAC")
to provide
outside air and chilled and heated water to a central area in the
Premises.
Tenant shall pay, as Additional Rent, all charges (which charges
shall include
costs of utilities and maintenance and repair costs) incurred by
Landlord to
supply HVAC to the Premises, and Landlord shall substantiate the
basis of such
charges using customary industry practices.
5.1.2 Landscaping. Landlord shall provide cleaning, maintenance
and
landscaping to the common areas of the Building and Property
(including snow
removal to the extent necessary to maintain reasonable access to
the Building
and the parking lot) in accordance with standards generally
prevailing
throughout the term hereof in comparable office buildings in the
Route 128 area.
5.1.3 Elevator, Lighting and Electricity. Landlord shall
furnish
non-exclusive elevator service to the Premises; purchase and
install, at
Tenant's expense, all lamps, tubes, bulbs, starters and ballasts
for lighting
fixtures in the Premises; provide lighting to public and
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common areas of the Property; and arrange for the supply of
electrical power to
the Premises to accommodate a load not exceeding the limitations
contained in
Section 6.2.4.
5.1.4 Repairs. Except as otherwise expressly provided herein,
Landlord shall promptly and professionally make such repairs and
replacements to
the roof, exterior walls, floor slabs and other structural
components of the
Building, and to the common areas and facilities of the Building
(including any
common area plumbing, electrical and HVAC equipment, elevators and
any other
common equipment or systems in the Building) as may be necessary to
keep them in
good repair and condition (exclusive of equipment installed by
Tenant and except
for those repairs required to be made by Tenant pursuant to
Subsection 6.1.3
hereof and repairs or replacements occasioned by any act or
negligence of
Tenant, its servants, agents, customers, contractors, employees,
invitees, or
licensees).
5.2
Interruption. Landlord shall have no responsibility or liability
to
Tenant for failure, interruption, inadequacy, defect or
unavailability of any
services, facilities, utilities, repairs or replacements or for any
failure or
inability to provide access or to perform any other obligation
under this Lease
caused by breakage, accident, fire, flood or other casualty,
strikes or other
labor trouble, order or regulation of or by any governmental
authority,
inclement weather, repairs, inability to obtain or shortages of
utilities,
supplies, labor or materials, war, civil commotion or other
emergency,
transportation difficulties or due to any act or neglect of Tenant
or Tenant's
servants, agents, employees or licensees or for any other cause
beyond the
reasonable control of Landlord, and in no event shall Landlord be
liable to
Tenant for any indirect or consequential damages suffered by Tenant
due to any
such failure, interruption, inadequacy, defect or unavailability;
and failure or
omission on the part of Landlord to furnish any of same for any of
the reasons
set forth in this paragraph shall not be construed as an eviction
of Tenant,
actual or constructive, nor entitle Tenant to an abatement of rent,
nor render
the Landlord liable in damages, nor release Tenant from prompt
fulfillment of
any of its covenants under this Lease.
Landlord
reserves the right to deny access to the Building and to
interrupt the services of the HVAC, plumbing, electrical or other
mechanical
systems or facilities in the Building when necessary from time to
time by reason
of accident or emergency, or for repairs, alterations, replacements
or
improvements which in the reasonable judgment of Landlord are
desirable or
necessary, until such repairs, alterations, replacements or
improvements shall
have been completed. Landlord shall use reasonable efforts to
minimize the
duration of any such interruption and to give to Tenant at least
three (3) days'
notice if service is to be interrupted, except in cases of
emergency.
5.3
Outside Services. In the event Tenant wishes to obtain services or
to
hire vendors relating to the Premises, Tenant shall first obtain
the prior
approval of Landlord for the installation and/or utilization of
such services or
vendors. Landlord's approval may not be withheld, conditioned or
delayed
unreasonably. Such services shall include, but shall not be limited
to, utility
providers, security services, moving services, equipment servicers
and
installers, catering services and the like. Notwithstanding any
Landlord
approval of the installation and/or utilization of such services or
vendors,
such installation and utilization shall be at Tenant's sole cost,
risk and
expense.
5.4 Access
to Building. During Normal Building Operating Hours, the
Building
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shall, subject to the provisions of Section 5.2, be open and access
to the
Premises shall be freely available, subject to the Rules and
Regulations. During
periods other than Normal Building Operating Hours, Tenant shall
have access to
the Premises, but such access shall also be subject to the Rules
and
Regulations. Tenant acknowledges that Tenant is responsible for
providing
(subject to the terms of this Lease) such security to and for its
property and
personnel in the Premises as it deems appropriate.
5.5
Parking. During the term of this Lease, Landlord shall provide
Tenant
with access to parking spaces on the Property as follows:
(a) Tenant shall be entitled to 3.6 parking spaces per 1,000
square
feet of Premises Rentable Area, rounded down to the nearest whole
number. All
such parking spaces shall be unreserved and available on a
first-come,
first-served basis, except that six (6) spaces, in the location
shown on Exhibit
A-1, shall be identified as reserved for Tenant's visitors.
(b) Tenant shall use such parking spaces solely for the parking
of
passenger vehicles of Tenant and Tenant's employees, business
invitees and
guests only.
(c) Landlord reserves the right to implement and modify systems
to
regulate access to and use of the parking spaces, including,
without limitation,
parking passes, parking stickers and card key access, or any other
system
reasonably designated by Landlord.
(d) Tenant hereby indemnifies and shall defend and hold
Landlord
harmless form and against all claims, loss, cost or damage arising
out of the
use by Tenant and Tenant's employees and invitees of the parking
spaces, except
to the extent caused by the willful misconduct or gross negligence
of Landlord
or Landlord's agent or employees.
5.6
Compliance with Americans with Disabilities Act. As of the
Commencement Date, the common areas of the Property shall, to
Landlord's
knowledge, be in material compliance with the Americans with
Disabilities Act of
1990, as amended and all other applicable laws and regulations
concerning access
to and use of facilities like the Building by people with
disabilities,
including without limitation, the Massachusetts Architectural
Business Board
regulations (collectively, the "ADA"). If during the term of this
Lease any
improvement or alteration to the common areas of the Property is
necessary for
compliance with the ADA and the obligation to make such improvement
or
alteration is not Tenant's pursuant to Sections 6.1.3, 6.1.4 or
6.2.5, Landlord
shall make such required improvement or alteration.
5.7
Hazardous Waste Representation and Covenants. Landlord has
previously
delivered to Tenant reports dated December 15, 1995 and April 10,
1998 by Rizzo
Associates, Inc. and Dames & Moore respectively with respect to
certain
environmental conditions at the Property and a Phase I and
Downgradient Property
Status Report of Haley & Aldrich dated August 1, 1997 with
respect to 91
Hartwell Avenue. So long as the condition requiring removal or
remediation of
Hazardous Materials is not caused by Tenant or any party for whom
Tenant is
responsible, Landlord shall, in a manner that complies with all
applicable
Environmental Laws, perform or cause others to perform all
remediation necessary
to cause the Property to comply with Environmental Laws. Landlord
shall
indemnify and defend (with counsel reasonably acceptable to Tenant)
Tenant from
any liability for fines or penalties arising from or related to
a
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breach by Landlord of the forgoing representations and agreements
of Landlord
(including also costs incurred to avoid the imposition of, or to
discharge, any
lien on the Property arising from any such breach) and from any
liability for
costs of removing or remediating Hazardous Materials which Landlord
is obligated
to remediate pursuant to this paragraph.
5.8
Indemnification. Subject to all limitations, waivers, exclusions
and
conditions contained in this Lease (each of which shall control in
the event of
any conflict or inconsistency with this Section 5.8), Landlord
shall defend and
indemnify Tenant and its directors, officers, agents and employees
against and
from any and all claims, liabilities or penalties asserted by or on
behalf of
any third party on account of personal injury arising out of the
negligence or
other wrongful conduct of Landlord or its agents, contractors or
employees
during the term of this Lease. In case of any action or proceeding
brought
against Tenant by reason of any such claim, Landlord, upon notice
from Tenant,
shall resist or defend such action or proceeding and employ counsel
therefor
reasonably satisfactory to Tenant. Notwithstanding the foregoing in
no event
shall this Section 5.8 require Landlord to indemnify or defend
Tenant or its
employees or Tenant's agents or their employees against any loss,
cost, damage,
liability, claim, or expense to the extent arising out of the
negligence or
misconduct of Tenant or its employees or contractors or Tenant's
agents or their
employees.
ARTICLE 6
Tenant's Additional Covenants
6.1
Affirmative Covenants. Tenant shall do the following:
6.1.1 Perform Obligations. Tenant shall perform promptly all of
the
obligations of Tenant set forth in this Lease; and pay when due the
Annual Fixed
Rent and Additional Rent and all other amounts which by the terms
of this Lease
are to be paid by Tenant.
6.1.2 Use. Tenant shall, during the term of this Lease, use the
Premises only for the Permitted Uses and from time to time, procure
and
maintain, and at Landlord's request provide to Landlord copies of,
all licenses
and permits necessary therefor and for any other use or activity
conducted at
the Premises, at Tenant's sole expense. Tenant shall also provide
to Landlord
access to all Material Safety Data Sheets on any Hazardous
Materials in the
Premises for which Tenant or its agents are responsible.
6.1.3 Repair and Maintenance. Except for Landlord's obligation
under
Section 5.1.4, Tenant shall, during the term of this Lease,
maintain the
Premises in neat and clean order and condition, contract for daily
cleaning and
routine pest control services for the Premises, and perform all
repairs to the
Premises and all fixtures, systems, and equipment therein
(including Tenant's
equipment and other personal property) as are necessary to keep
them in good and
clean working order, appearance and condition and consistent with
other premises
in first-class buildings used for the Permitted Uses, reasonable
use and wear
thereof and damage by fire or by unavoidable casualty only excepted
and shall
replace any damaged or broken glass in windows and doors of the
Premises (except
glass in the exterior walls of the Building) with glass of the same
quality as
that damaged or broken.
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Tenant
shall secure and pay for, keep in full force and effect and
enforce, contracts with appropriate and reputable service providers
(such
contracts and providers to be approved in advance by Landlord)
providing for
regular maintenance of any ventilating and air-conditioning systems
or
components servicing the Premises exclusively and copies of such
contracts and
service call requests and invoices shall be furnished to Landlord
upon request.
Tenant
shall keep any garbage, trash, rubbish or other refuse in
vermin-proof containers within the interior of the Premises until
removed, and
shall dispose of such refuse in properly sealed bags placed in
dumpsters
provided and emptied by Tenant's trash removal contractor at
Tenant's sole
expense.
Landlord
shall have no obligation to collect or dispose of any (a)
radioactive, volatile, highly flammable, explosive of toxic
materials, (b)
needles, syringes, lancets, similar sharp objects or contaminated
wares, (c)
human or animal tissue or products, or (d) any other Hazardous
Materials, any
item identified in clauses (a) through (d), above, hereinafter
referred to as
"Excepted Waste". Tenant agrees that title to and liability for any
Excepted
Waste from the Premises shall remain with Tenant, even if Landlord
collects
and/or disposes of any such Excepted Waste.
6.1.4 Compliance with Law. Tenant shall, during the term of
this
Lease, make all repairs, alterations, additions or replacements to
the Premises
required by any law or ordinance or any order or regulation of any
public
authority; keep the Premises safe and equipped with all safety
appliances so
required; and comply with, and perform all repairs, alterations,
additions or
replacements required by, the orders and regulations of all
governmental
authorities with respect to zoning, building, fire, health and
other codes,
regulations, ordinances or laws applicable to the Premises or other
portions of
the Property and arising out of any use being conducted in or on
the Premises or
arising out of any work performed by Tenant, except that Tenant may
(but only so
long as (i) Landlord shall not be subject to any fine or charge,
(ii) neither
the Property nor any portion thereof shall be subject to being
condemned or
vacated and (iii) neither the Property nor any portion thereof
shall be subject
to any lien or encumbrance) defer compliance so long as the
validity of any such
law, ordinance, order or regulation shall be contested by Tenant in
good faith
and by appropriate legal proceedings, if Tenant first gives
Landlord assurance
or security against any loss, cost or expense on account thereof in
form and
amount acceptable to Landlord. For clarity, Tenant shall not be
responsible for
compliance with any such laws, ordinances or regulations under this
Section
6.1.4 unless required (I) due to Tenant's alterations or repairs or
Tenant's
particular manner of use of the Premises (as opposed to office
operations,
generally) or (II) due to the misconduct or negligence of Tenant or
any agent,
employee or contractor of Tenant.
6.1.5 Indemnification. Tenant shall neither hold, nor attempt
to
hold, Landlord or its employees or Landlord's agents or their
employees liable
for, and Tenant shall indemnify and hold harmless Landlord, its
employees and
Landlord's agents and their employees (collectively, the "Landlord
Indemnitees")
from and against, any and all demands, claims, causes of action,
fines,
penalties, damage, liabilities, judgments and expenses (including,
without
limitation, attorneys' fees) incurred in connection with or arising
from: (i)
the use or occupancy or manner of use or occupancy of the Premises
by Tenant or
any person claiming under Tenant; (ii) any matter occurring on the
Premises
during the term; (iii) any acts, omissions or negligence of Tenant
or any
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<PAGE>
person claiming under Tenant, or the contractors, agents,
employees, invitees or
visitors of Tenant or any such person; (iv) any breach, violation
or
nonperformance by Tenant or any person claiming under Tenant or the
employees,
agents, contractors, invitees or visitors of Tenant or any such
person of any
tern, covenant or provision of this Lease or any law, ordinance or
governmental
requirement of any kind for which compliance is not the
responsibility of the
Landlord pursuant to this Lease; (v) claims of brokers or other
persons for
commissions or other compensation arising out of any actual or
proposed sublease
of any portion of the Premises or assignment of Tenant's interest
under this
Lease, or Landlord's denial of consent thereto or exercise of any
of Landlord's
other rights under Section 6.2.1; and (vi) any injury or damage to
the property
of Tenant, its employees, agents, contractors, invitees, visitors
or any other
person entering upon the Property under the express or implied
invitation of
Tenant (except to the extent arising from or related to the willful
misconduct
or gross negligence of the Landlord Indemnitees). If any action or
proceeding is
brought against the Landlord Indemnitees by reason of any such
claim, Tenant,
upon notice from Landlord, shall defend the same, at Tenant's
expense, with
counsel reasonably satisfactory to Landlord. Notwithstanding the
foregoing in no
event shall this Section 6.1.5 require Tenant to indemnify or
defend the
Landlord Indemnitees against any loss, cost, damage, liability,
claim, or
expense to the extent arising out of the gross negligence or
willful misconduct
of Landlord or its employees or Landlord's agents or their
employees or for any
event for which Landlord is to indemnify Tenant pursuant to Section
5.7 or 5.8,
nor shall this Section 6.1.5 require Tenant to perform any
obligation for which
Landlord is expressly responsible under this Lease.
6.1.6 Landlord's Right to Enter. Tenant shall, during the term
of
this Lease, permit Landlord and its agents and invitees to enter
into and
examine the Premises at reasonable times and to show the Premises
to prospective
lessees, lenders, partners and purchasers and others having a
bonafide interest
in the Premises, and to make such repairs, alterations and
improvements required
or permitted to be made by this Lease and to perform such testing
and
investigation as Landlord shall reasonably determine to make or
perform, and,
during the last six (6) months prior to the expiration of this
Lease, to keep
affixed in suitable places notices of availability of the Premises.
In all cases
except instances posing an imminent threat to life or property, and
except for
any entry pursuant to the performance of Landlord's routine
obligations under
Article 5, (i) Landlord shall give Tenant reasonable notice prior
to making any
entry onto the Premises, provided, however, notwithstanding Section
10.1 to the
contrary, such notice may be made orally, and (ii) access to lab
space shall be
undertaken only with a Tenant escort so long as Tenant shall make
such escort
available at the time such access is requested.
6.1.7 Personal Property at Tenant's Risk. Tenant shall, during
the
term of this Lease keep, at the sole risk and hazard of Tenant, all
of the
furnishings, fixtures, equipment, effects and property of every
kind, nature and
description of Tenant and of all persons claiming by, through or
under Tenant
which may be on the Property, and if the whole or any part thereof
shall be
lost, destroyed or damaged by fire, water or otherwise, or by the
leakage or
bursting of water pipes, steam pipes, or other pipes, by theft or
from any other
cause, Tenant shall hold harmless and indemnify Landlord from and
against any
and all injury, loss, damage or liability to Tenant or to any other
person or
entity arising out of said loss or damage, except to the extent
such loss or
damage is caused by the gross negligence or willful misconduct of
Landlord or
its employees or agents.
6.1.8 Payment of Landlord's Cost of Enforcement. Tenant shall pay
on
demand
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<PAGE>
Landlord's expenses, including reasonable attorneys' fees, incurred
in enforcing
any obligation of Tenant under this Lease or in curing any default
by Tenant
under this Lease as provided in Section 8.5.
6.1.9 Yield Up. Tenant shall, at the expiration or earlier
termination of the term of this Lease, surrender all keys to the
Premises;
remove all of its personal property in the Premises and any
equipment and
fixtures installed in the Premises by Tenant (collectively,
"Equipment"), except
to the extent Landlord may require such Equipment to be surrendered
to Landlord;
remove such installations (including wiring and cabling wherever
located),
alterations, improvements and Equipment made (or if applicable,
restore any
items removed) or installed by or on behalf of Tenant as Landlord
may request
wherever located and all of Tenant's signs; repair all damage
caused by such
removal; and vacate and yield up the Premises (including all
installations and
improvements or Equipment made or installed by or on behalf of
Tenant except as
Landlo
