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WAYLAND BUSINESS CENTER
WAYLAND, MASSACHUSETTS
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TABLE OF CONTENTS
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ARTICLE I
REFERENCE DATA....................................................................................1
1.1 Subjects referred to.....................................................................1
1.2 Exhibits.................................................................................3
ARTICLE II
PREMISES AND TERM.................................................................................4
2.1 Premises.................................................................................4
2.2 Common Facilities........................................................................4
2.3 Amenities................................................................................4
2.4 Landlord's Reservations..................................................................5
2.5 Term.....................................................................................5
2.6 Extension Term...........................................................................6
2.7 Early Access.............................................................................7
ARTICLE III
ALTERATIONS AND ADDITIONS.........................................................................8
3.2 Preparation of Premises for Occupancy....................................................8
3.3 Tenant Changes and Additions............................................................10
3.4 General Provisions Applicable to Construction...........................................11
3.5 Construction Representatives............................................................13
ARTICLE IV
RENT.............................................................................................13
4.1 Annual Fixed Rent.......................................................................13
4.2 Additional Rent.........................................................................13
4.2.1 Real Estate Taxes..............................................................13
4.2.2 Real Estate Taxes Defined......................................................15
4.2.3 Operating Expenses.............................................................16
4.2.4 Tenant's Proportionate Share...................................................19
4.2.5 Tenant's Electricity Usage.....................................................20
ARTICLE V
LANDLORD'S COVENANTS.............................................................................21
5.1 Landlord's Covenants....................................................................21
5.2 Interruptions...........................................................................23
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ARTICLE VI
TENANT'S COVENANTS...............................................................................24
6.1 Tenant's Covenants......................................................................24
ARTICLE VII
CASUALTY AND TAKING..............................................................................37
7.1 Casualty and Taking.....................................................................37
7.2 Reservation of Award....................................................................41
ARTICLE VIII
RIGHTS OF MORTGAGEE..............................................................................42
8.1 Superiority of Lease....................................................................42
8.2 No Prepayment...........................................................................42
8.3 No Release or Termination...............................................................42
8.4 No Modification, etc....................................................................43
8.5 Continuing Offer........................................................................43
8.6 Subordination...........................................................................43
8.7 Implementation..........................................................................44
ARTICLE IX
DEFAULTS.........................................................................................44
9.1 Events of Default.......................................................................44
9.2 Remedies and Damages....................................................................45
ARTICLE X
MISCELLANEOUS....................................................................................48
10.1 When Lease Becomes Binding..............................................................48
10.2 Titles..................................................................................49
10.3 Notice of Lease.........................................................................49
10.4 Holding Over............................................................................49
10.5 Notice..................................................................................49
10.6 Bind and Inure..........................................................................50
10.7 No Surrender............................................................................50
10.8 No Waiver, Etc..........................................................................50
10.9 No Accord and Satisfaction..............................................................51
10.10 Cumulative Remedies.....................................................................51
10.11 Partial Invalidity and Applicable Law...................................................52
10.12 Landlord's Right to Cure Tenant's Defaults..............................................52
10.13 Estoppel Certificates...................................................................53
10.14 Waiver of Subrogation...................................................................54
10.15 Brokerage...............................................................................54
10.16 Force Majeure...........................................................................55
10.17 Authority...............................................................................56
10.18 Parking and Loading.....................................................................56
10.19 Signage.................................................................................56
10.20 Security Deposit........................................................................57
10.21 Limitation of Landlord's Liability......................................................58
10.22 Right to Relocate.......................................................................59
10.23 Rear Access.............................................................................60
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EXHIBIT A
DESCRIPTION OF THE LAND.........................................................................A-1
EXHIBIT B
PLAN SHOWING THE PREMISES.......................................................................B-1
EXHIBIT C
DETERMINATION OF FAIR MARKET RENTAL VALUE.......................................................B-2
EXHIBIT D
LANDLORD'S SERVICES.............................................................................D-1
EXHIBIT E
RULES AND REGULATIONS...........................................................................E-1
EXHIBIT F
LIST OF APPROVED CONTRACTORS, ARCHITECTS AND ENGINEERS..........................................E-1
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WAYLAND BUSINESS CENTER
WAYLAND, MASSACHUSETTS
LEASE dated as of June 16, 2000
ARTICLE I
REFERENCE DATA
1.1 SUBJECTS REFERRED TO. Each reference in this Lease to any of the
following subjects shall be construed to incorporate the data stated for that
subject in this Section 1.1:
Landlord: Wayland Business Center, LLC, a Delaware
limited liability company
Original Address of c/o Congress Group Ventures
Landlord: One Memorial Drive
Cambridge, Massachusetts 02142
Landlord's Construction
Representative: Vincent A. Chiozzi, Jr.
Tenant: Moldflow Corporation
Original Address of
Tenant: 91 Hartwell Avenue
Lexington, MA 02421
Tenant's Construction
Representative: Glenn Hathaway and Suzanne E. Rogers
Premises: Agreed to be Twenty-Two Thousand Six
Hundred Ninety-Four (22,694) rentable square
feet ("r.s.f.") located on the 1st floor in
the building having a street address of 430
Boston Post Road (the "Building") which
constitutes one of the interconnected brick
buildings (the ABuildings") located on the
land more particularly described in EXHIBIT
A attached hereto (the "Land"). As used in
this Lease, all r.s.f. figures include
proportionate shares of all common areas of
the Buildings. A plan showing the Premises
is attached hereto as EXHIBIT B. The
Buildings and the Land are referred to as
the "Property".
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Total Rentable Floor
Area of the Buildings: 392,500 rentable square feet.
Term: Five (5) years, commencing on the Term
Commencement Date (the "Original Term"), as
the same may be extended by Tenant's
exercise of the extension option provided
under Section 2.6.
Lease Year: The twelve (12) month period commencing on
the Term Commencement Date and ending on the
day preceding the first anniversary of the
Term Commencement Date (except that if the
Term Commencement Date is other than the
first day of a calendar month, the
expiration of the first Lease Year shall be
at the close of the last day of the calendar
month in which such first anniversary
falls), and each twelve month period
thereafter occurring during the Term of this
Lease.
Term Commencement
Date: As defined in Section 3.2.4 hereof.
Annual Fixed Rent: Lease Year 1 - 2 $590,044.00, calculated at
$26 r.s.f.
Lease Year 3 - 4 $612,738.00, calculated at
$27 r.s.f.
Lease Year 5 $635,432.00, calculated at
$28 r.s.f.
Additional Rent: All payments required to be made by Tenant
to Landlord under Section 4.2 hereof.
Cost of Tenant's Electricity: Shall be included as an operating expense
and Tenant shall pay Tenant's Proportionate
Share thereof as set forth in Sections 4.2.3
and Section 4.2.5.
Extension Options: Tenant may elect to extend the Term beyond
the expiration of the Original Term for one
(1) additional period of five (5) years
under Section 2.6.
Tenant's Included Share
of Real Estate Taxes: During each year of the Original Term, 100%
of the actual real estate taxes per r.s.f.
during the 2001 tax fiscal year; during each
year of the Extension Term, 100% of the
actual real estate taxes per r.s.f. during
the tax fiscal year most recently completed
prior to the commencement of the Extension
Term.
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Tenant's Included Share
of Operating Expenses: During each year of the Original Term, 100%
of the actual operating expenses per r.s.f.
during the 2000 calendar year; during each
year of the Extension Term, 100% of the
actual operating expenses per r.s.f. during
the calendar year most recently completed
prior to the commencement of the Extension
Term.
Permitted Uses: General office use and incidental research
laboratory and equipment demonstration.
Tenant's Public
Liability Insurance: $1,000,000 combined single limit and
$3,000,000 umbrella coverage.
Bodily Injury: $1,000,000 each person; $3,000,000 each
accident.
Property Damage: $1,000,000 each accident.
Tenant's Share of
Parking Spaces: Seventy-Two (72).
Tenant Improvements
Allowance: $30.00 per r.s.f. of the Premises. In
addition, Landlord shall provide, at no cost
to Tenant, a "test fit" plan for the
Premises.
Security Deposit: $295,022, subject to Section 10.20.
1.2 EXHIBITS. The Exhibits listed below in this section are
incorporated in the Lease by reference and are to be construed as part of this
Lease:
Exhibit A - Description of the Land
Exhibit B - Plan Showing the Premises
Exhibit C - Determination of Fair Rental Value
Exhibit D - Landlord's Services
Exhibit E - Rules and Regulations
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ARTICLE II
PREMISES AND TERM
2.1 PREMISES. Landlord hereby leases to Tenant, and Tenant hereby hires
from Landlord, for the Term, subject to and with the benefit of the provisions
of this Lease, the Premises, excluding exterior faces of exterior walls, the
common stairways, stairwells, elevators and elevator wells and other common
facilities in the Building, and pipes, ducts, conduits, wire and appurtenant
fixtures serving the Premises exclusively or in common with other parts of the
Building, and if the Premises includes less than the entire rentable area of any
floor, excluding the central core area of such floor.
2.2 COMMON FACILITIES. Tenant shall have, as appurtenant to the
Premises, rights to use in common with others entitled thereto, subject to the
Rules and Regulations (as hereinafter defined): (a) the common facilities in the
Buildings or on the Land, including common walkways, driveways, lobbies,
hallways, ramps, stairways, elevators and loading platforms; (b) the common
pipes, ducts, conduits, wires and appurtenant equipment serving the Premises;
and (c) if the Premises include less than the entire rentable area of any floor,
the common toilets and other common facilities.
2.3 AMENITIES. During the Term, Tenant shall have the right to use, in
common with other tenants the cafeteria and other amenities from time to time
located within or made available by Landlord to occupants of the Wayland
Business Center. Tenant's right to use all such amenities shall be on such
terms, during such time periods and subject to such rules and regulations as are
determined by Landlord, in its reasonable discretion, and uniformly applied to
all of the tenants of Wayland Business Center.
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2.4 LANDLORD'S RESERVATIONS. Landlord reserves the right from time to
time, without unreasonable interference with Tenant's Permitted Uses, to
install, repair, replace, use, maintain and relocate for service to the Premises
and to other parts of the Building, pipes, ducts, conduits, wires and
appurtenant fixtures wherever located in the Building, and to alter or relocate
any other common facility, provided that the substitutions are substantially
equivalent or better. Installations, replacements and relocations referred to in
this Section 2.4 shall be located in the central core area, above ceiling
surfaces, below floor surfaces or within the perimeter walls of the Premises to
the extent practicable and, to the extent not practicable, without unreasonably
interfering with Tenant's business operations in the Premises. Tenant's usable
space in the Premises shall not be materially diminished as a result of such
installations, replacements and relocations, without Tenant's prior consent and,
in any event, if Tenant does so consent, the Annual Fixed Rent and Additional
Rent shall be justly and equitably abated and reduced according to the nature
and extent of the loss thereof suffered by Tenant. In the event that Tenant's
usable space is diminished, by more than fifty percent (50%), Tenant shall have
the option to terminate this Lease, without penalty, on not less than thirty
(30) days notice.
2.5 TERM. To have and to hold the Premises for a period commencing on
the Term Commencement Date, and continuing for the Term unless sooner terminated
as provided elsewhere in this Lease.
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2.6 EXTENSION TERM. Provided that no Event of Default with regard to
the payment of Annual Fixed Rent or Additional Rent is then in existence, Tenant
shall have the right to extend the Original Term for one (1) period of five (5)
years. Such option to extend shall be exercised by the giving of notice by
Tenant to Landlord on or before the date which is twelve (12) months prior to
the expiration of the then current Term. Upon the giving of such notice, this
Lease and the Term hereof shall be extended, for an additional term of five (5)
years (the "Extension Term"), without the necessity for the execution of any
additional documents, provided that upon request of either party, Landlord and
Tenant agree to enter into an amendment of this Lease to confirm the exercise of
such extension option and to document all changes to the Lease resulting from
the exercise of the extension option. Time is of the essence in the giving of
such notice. The Extension Term shall be upon all the terms, conditions and
provisions of this Lease except that the Annual Fixed Rent during the Extension
Term ("Extension Term Rent") shall be equal to the Fair Rental Value of the
Premises (as such term is hereinafter defined) for such Extension Term. If Fair
Rental Value is not agreed upon by Landlord and Tenant three (3) months prior to
the date on which such Extension Term is to commence, the Extension Term Rent
shall be determined by appraisal as provided in EXHIBIT C attached hereto;
provided, however, that if the Extension Term Rent shall not have been
determined pursuant to the appraisal process described in EXHIBIT C prior to
commencement of the Extension Term, Tenant shall pay Annual Fixed Rent with
respect to the Premises at the rate equal to the fixed annual rent per rentable
square foot of the Premises reasonably determined by Landlord to be the Fair
Rental Value of the Premises (the "Temporary Rent") until the Extension Term
Rent is determined pursuant to such appraisal process, at which time an
appropriate adjustment shall be made as necessary to correct any difference
between the Temporary Rent and the Extension Term Rent. Tenant shall pay any
such adjustment required of it, plus interest computed at the annual rate equal
to the prime rate of interest announced from time to time by Fleet Boston
Corporation (or any successor thereto) (the "Lease Interest Rate"), on such
adjustment amount (such interest to be calculated as accruing from the dates
Temporary Rent payments were made as if a pro rata portion of such adjustment
amount were due on each such date), within ten (10) days after receipt of notice
thereof. Any such adjustment required of Landlord shall be accounted for to
Tenant after such determination is made and shall be credited, along with
interest computed at the Lease Interest Rate on such adjustment amount (such
interest to be calculated as accruing from the dates Temporary Rent payments
were made as if a pro rata portion of such adjustment amount were due on each
such date) within ten (10) days after receipt of notice thereof. For purposes of
EXHIBIT C the day following expiration of the Original Term shall be deemed the
relevant "Available Date".
2.7 EARLY ACCESS. From and after the date of execution of this Lease,
Landlord shall give Tenant access to the Premises for purposes of commencing the
Initial Tenant Improvements; provided, however, that any entry onto the Premises
by Tenant shall be subject to all of the terms and provisions of this Lease
other than the provisions requiring Tenant to pay Annual Fixed Rent and any
Additional Rent, neither of which shall be payable for the period prior to the
Term Commencement Date.
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ARTICLE III
ALTERATIONS AND ADDITIONS
3.1 BASE BUILDING CONDITION. Landlord represents and warrants to Tenant
that the Premises, on the date hereof, are in broom-clean, carpet-ready
condition, ready for construction. Landlord further represents and warrants to
Tenant that: the bathrooms in the Premises have been completed to building
standard; the main HVAC mechanical units are in place and ready for work; there
are fire dampers in the existing HVAC ducts and that there is a sprinkler loop
in existence in the Premises.
3.2 PREPARATION OF PREMISES FOR OCCUPANCY.
3.2.1 TENANT'S PLANS. Tenant, at Tenant's sole cost and
expense, shall cause to be prepared and delivered to Landlord, within twenty-one
(21) of the date of this Lease, a set of detailed architectural, mechanical and
electrical drawings and specifications detailing the work proposed to be done in
the Premises ("Tenant's Plans"). Tenant's Plans shall comply, in all material
respects, with all applicable laws, ordinances and regulations and the
requirements of this Lease and shall be prepared by design professionals
reasonably acceptable to Landlord (it being agreed that the list of architects,
engineers and construction contractors attached hereto as EXHIBIT F is hereby
deemed approved and Tenant may use any of the professionals on such list).
Landlord shall have five (5) Business Days to review and approve or reject
Tenant's Plans. In the event Landlord does not approve Tenant's Plans, Landlord
agrees to work with Tenant and Tenant's design professionals to articulate and
promptly resolve any objections Landlord has to Tenant's Plans. Once Tenant's
Plans are approved, Tenant shall perform the appropriate filings, if necessary,
with governmental agencies having jurisdiction and obtain such approvals and
permits as required for the construction of the work depicted on Tenant's Plans.
<PAGE>
3.2.2 INITIAL TENANT IMPROVEMENTS. Tenant's Plans, once
approved by Landlord, shall set forth the work to be completed in the Premises
at Tenant's sole cost and expense (the "Initial Tenant Improvements"). Prior to
commencing the Initial Tenant Improvements, Tenant shall deliver to Landlord the
name and address of Tenant's general contractor. Promptly following the
completion of all of the Initial Tenant Improvements, Tenant shall obtain and
furnish to Landlord (i) all appropriate certifications from all authorities
having jurisdiction (including a certificate of occupancy or permanent
certificate of occupancy, as the case may be) to the effect that all of the
Initial Tenant Improvements have been performed and completed in accordance with
Tenant's Plans.
3.2.3 TENANT IMPROVEMENTS ALLOWANCE. Except as set forth in
Section 3.1 hereof, Landlord shall have no obligation to perform any work in the
Premises to prepare the same for Tenant's occupancy, provided however, that
Landlord shall make the Tenant Improvements Allowance available for purposes of
reimbursing Tenant for any costs and expenses incurred in making the Initial
Tenant Improvements. Landlord shall reimburse Tenant for, or pay directly upon
presentation of a detailed invoice, costs incurred in constructing the Initial
Tenant Improvements, including, without limitation, architectural and
engineering fees, from time to time (but not more frequently than monthly) upon
Tenant's furnishing Landlord with receipted invoices reasonably satisfactory to
Landlord. To the extent the Tenant Improvements Allowance is not used by Tenant
it shall be retained by Landlord.
3.2.4 COMMENCEMENT DATE. The Term of the Lease shall begin
(and Annual Fixed Rent shall first be payable on the earlier to occur of (the
"Term Commencement Date"):
(a) September 1, 2000, subject to extension for
Force Majeure, or such earlier date on which
Tenant commences business operations at the
Premises; and
(b) September 30, 2000.
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3.3 TENANT CHANGES AND ADDITIONS. Except as provided in this Section
3.3, Tenant may, from time to time, make non-structural changes and additions to
the Premises, including without limitation, the Initial Tenant Improvements, in
accordance with plans and specifications therefor first approved by Landlord,
which approval shall not be unreasonably withheld, conditioned or delayed. From
and after the Term Commencement Date, non-structural changes within the Premises
costing $20,000.00 or less in any one instance and aggregating no more than
$100,000.00 during the entire Term may be made by Tenant without the need for
Landlord's approval; however, in any such instance Tenant shall give written
notice thereof, together with the plans and specification therefor, if any, to
Landlord prior to commencing any such change and Tenant shall otherwise be bound
by the remaining provisions hereof. All fixtures and all paneling, railings and
like installations, installed in the Premises at any time, either by Tenant or
by Landlord on Tenant's behalf, shall become the property of Landlord and shall
remain upon and be surrendered with the Premises at the end of the Term unless
Landlord, by notice to Tenant no later than ten (10) days after the Term
Commencement Date for installations paid for with the Tenant Improvement
Allowance( or within ten (10) days after any later installation made by Tenant)
notifies Tenant prior to the date fixed for termination of this Lease or
promptly after termination in any case where this Lease is earlier terminated,
elects to have them removed by Tenant, in which event, the same shall be removed
from the Premises by Tenant forthwith at the end of the Term, at Tenant's
expense. Nothing in this Section shall be construed to prevent Tenant's removal
of trade fixtures, moveable partitions and computer and telecommunications
equipment or personal property paid for by Tenant. Upon removal of any such
trade fixtures or other installations as may be required by Landlord, Tenant
shall immediately and at its expense, repair and restore the Premises to the
condition existing prior to installation, reasonable wear and tear excepted and
repair any damage to the Premises or the Building due to such removal. All
property permitted or required to be removed by Tenant at the end of the Term
remaining in the Premises after Tenant's removal shall be deemed abandoned and
may, at the election of Landlord, either be retained as Landlord's property or
may be removed from the Premises by Landlord at Tenant's expense.
<PAGE>
3.4 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION. All construction
work required or permitted by this Lease except for the Initial Tenant
Improvements shall be done in a good and workmanlike manner and in compliance
with all applicable laws and all lawful ordinances, regulations and orders of
governmental authority. All of Tenant's changes and additions shall be
coordinated with any work being performed by Landlord and in such manner as to
maintain harmonious labor relations and not to damage the Building or Land or
interfere with Building operation, and shall be performed by Landlord's the
contractors or workmen set forth in EXHIBIT F or by contractors or workmen first
approved by Landlord which approval shall not be unreasonably withheld. Except
with respect to work by Landlord's general contractor, Tenant before its work is
started shall: secure all licenses and permits necessary therefor; deliver to
Landlord a statement of the names of its contractors; cause each contractor to
carry workmen's compensation insurance in statutory amounts covering all of the
contractor's and subcontractor's employees, commercial general liability
insurance and such other insurance as Landlord shall reasonably require, written
by companies rated not less than A+ by Best's Insurance Reports with such limits
in no event less than $1,000,000 for each person and $3,000,000 for each
accident, and property damage insurance with limits of not less than $1,000,000
(all such insurance to be written insuring Landlord and Tenant and such other
persons or entities as Landlord shall reasonably require, as well as the
contractors); and to deliver to Landlord certificates of all such insurance.
Tenant agrees to pay promptly when due the entire cost of any work done on the
Premises by Tenant, Landlord's general contractor, or Tenant's agents,
employees, or independent contractors, and not to cause or permit any liens for
labor or materials performed or furnished in connection therewith to attach to
the Premises, the Building or any interest of Landlord therein. Tenant agrees
immediately to discharge or bond over any such liens which may so attach in
accordance with Section 6.1.13 hereof and agrees to indemnify Landlord for, from
and against any and all loss, cost or expense (including, but not limited to,
reasonable attorneys' fees and costs) incurred by Landlord as a result of
Tenant's work, except to the extent caused by the negligence or intentional acts
of Landlord or Landlord's agents.
3.5 CONSTRUCTION REPRESENTATIVES. Each party authorizes the other to
rely, in connection with construction performed by Tenant, upon approval and
other actions on the party's behalf by any Construction Representative of the
party named in Article I above or any person hereafter designated in
substitution or addition by notice to the party relying.
ARTICLE IV
RENT
4.1 ANNUAL FIXED RENT. Tenant agrees to pay, without any offset or
deduction whatever, Annual Fixed Rent to Landlord at the appropriate rate set
forth in Section 1.1 hereof, in equal installments of 1/12th of the Annual Fixed
Rent in advance on the first day of each calendar month included in the Term,
commencing on the Term Commencement Date and for any portion of a calendar month
preceding such date or at the end of the Term, at that rate payable in advance
for such portion. Tenant shall pay all rent when due and no invoice for rent due
or to become due or notice of rent past due shall be required hereunder.
4.2 ADDITIONAL RENT. The payments required to be made by Tenant to
Landlord under Sections 4.2.1 and 4.2.3 shall constitute "Additional Rent":
<PAGE>
4.2.1 REAL ESTATE TAXES. Tenant shall pay to Landlord its
proportionate share (as defined in Section 4.2.4) of all real estate
taxes (as defined in Section 4.2.2) imposed against the Buildings and
the Land attributable to the Term of this Lease, prorated with respect
to any portion of a fiscal year during which the Term of this Lease
either begins or ends. If Landlord shall receive any refund of real
estate taxes of which Tenant has paid a portion pursuant to this
Section, then, out of any balance remaining after deducting Landlord's
reasonable expenses incurred in obtaining such refund (but only to the
extent that the same have not been previously collected or billed to
tenants), Landlord shall pay to Tenant the lesser of (i) its
proportionate share, as defined in Section 4.2.4 hereof, of such
balance and (ii) the amount Tenant actually paid in Additional Rent on
account of the real estate taxes for the period to which such refund
relates. Tenant shall, with each monthly installment of Annual Fixed
Rent, make tax fund payments to Landlord. The term "tax fund payments"
refers to such payments as Landlord shall reasonably determine to be
sufficient to provide in the aggregate a fund adequate to pay, when
they become due and payable, all payments required from Tenant under
this Section. In the event that said tax fund payments are not adequate
to pay Tenant's share of taxes, Tenant shall pay to Landlord the amount
by which such aggregate of tax fund payments is less than the amount of
said share. Such payments shall be due and payable ten (10) days after
notice thereof is given to Tenant by Landlord. All surplus tax fund
payments to Landlord shall be accounted for to Tenant after payment by
Landlord of the taxes on account of which they were made, and shall be
credited by Landlord against the next tax fund payment due from Tenant
or if at the end of the Term, refunded to Tenant. Subject to the
provisions of this Section, Landlord shall be responsible for payment
of all real estate taxes imposed against the Buildings and the Land.
<PAGE>
4.2.2 REAL ESTATE TAXES DEFINED. The term "real estate taxes"
as used herein shall mean all real estate taxes, assessments, and other
governmental impositions and charges of every kind and nature
whatsoever not included in operating expenses (as defined in Section
4.2.3), extraordinary as well as ordinary, foreseen and unforeseen, and
each and every installment thereof, which shall or may during the Term
as it may be extended be assessed, imposed, become due and payable or
be levied by lawful taxing authorities against the Land described on
EXHIBIT A attached hereto, the Buildings, and all other improvements
located on the Land (collectively, the "Property") or liens upon or
arising in connection with the use or occupancy or possession of, or
becoming due or payable out of or for, the Property or any part
thereof, including all costs and fees incurred by Landlord in
contesting the same or in negotiating with the appropriate governmental
authorities as to the same.
Except as otherwise set forth in the immediately succeeding
paragraph of this Section 4.2.2, nothing herein contained shall be
construed to include as a real estate tax any inheritance, estate,
succession, transfer, gift, franchise corporation, income or profit tax
or capital levy that is or may be imposed upon Landlord; provided,
however, that, if at any time during the Term as it may be extended the
methods of taxation prevailing at the Term Commencement Date shall be
altered so that in lieu of or as a substitute for the whole or any part
of the taxes now levied, assessed or imposed upon the Property, there
shall be levied, assessed or imposed an income or other tax of whatever
nature, then the same shall be included in the computation of real
estate taxes hereunder.
Real estate taxes shall include any excise, transaction, sales
or privilege tax now or hereafter imposed by any government or
governmental agency upon Landlord on account of, attributed to, or
measured by rent or other charges payable by Tenant, or levied by
reason of the parking made available by Landlord on the Property, and
shall be repaid by Tenant to Landlord in addition to and together with
the rent and other charges otherwise payable hereunder; provided, that
any tax levied by reason of the parking shall be apportioned so that
Tenant shall reimburse Landlord for that portion of such parking tax in
the same proportion as set forth in Section 4.2.4.
<PAGE>
4.2.3 OPERATING EXPENSES. Tenant shall pay annually to
Landlord its proportionate share (as defined in Section 4.2.4) of all
reasonable costs and expenses incurred by Landlord from the Term
Commencement Date throughout the Term of this Lease in the operation
and maintenance of the Property in accordance with generally accepted
operational and maintenance procedures, including, without limiting the
generality of the foregoing, all such costs and expenses in connection
with (1) insurance (including without limitation casualty, public
liability and rent interruption insurance), license fees, janitorial
service, landscaping, window cleaning, parking lot maintenance, and
snow removal, (2) wages and salaries of on-site personnel, management
fees (which shall be comparable to those fees for similar buildings),
employee benefits and payroll taxes of on-site personnel, on-site
office expenses, on-site administrative and auditing expenses,
professional fees payable to parties not affiliated with Landlord
(including, without limitation, reasonable legal, accounting and
consulting fees), and equipment and materials for the operation,
management, and maintenance of said Property, (3) the furnishing of
heat, air conditioning, utilities, and any other service to the extent
the same is not reimbursed or reimbursable to Landlord, (4) water and
sewer charges, and (5) expenses incurred in complying with all zoning
and fire regulations arising after the date hereof as they may apply to
the Property (except for structural changes and capital expenditures)
(the foregoing being herein referred to as "operating expenses"). The
following shall be excluded from the definition of operating expenses:
(a) costs of special services rendered to
tenants for which a separate charge is made;
<PAGE>
(b) costs incurred for the exclusive benefit of
a specific tenant or of a space occupied by
Landlord;
(c) salaries of officers and executives of
Landlord not connected with the operation of
the Property (other than time devoted
exclusively to operation of the Property);
(d) any costs incurred due to the negligent acts
or omissions of Landlord, its agents or
employees;
(e) architectural, engineering and legal fees
incurred in connection with leasing costs or
preparing space for new tenants, leasing
fees or commissions and advertising costs;
(f) interest, mortgage charges, taxes,
depreciation and capital expenditures,
except that the cost of capital improvements
may, to the extent the same contribute to
the reduction of operating expenses, be
amortized and included in operating
expenses; and
(g) costs of reconstruction or other work
incurred in connection with any fire or
other casualty insured or required to be
insured against hereunder (other than the
amount of any reasonable deductible).
Operating expenses shall be reduced by the amount of insurance
proceeds, reimbursements, discounts or allowances received by Landlord in
connection with such costs.
<PAGE>
As soon as Tenant's proportionate share of operating expenses with
respect to any calendar year (subject to proration with respect to any portion
of a calendar year in which the Term of this Lease begins or ends) can be
determined, Landlord shall deliver to Tenant a statement of Tenant's
proportionate share of such operating expenses, and Tenant shall pay the same to
Landlord as Additional Rent within ten (10) days following the date of such
statement. Landlord's records of operating expenses with respect to each
calendar year shall be available in reasonable detail for inspection by Tenant
for two (2) years following delivery by Landlord of its statements of operating
expenses for such year. Tenant, or a third party selected by Tenant, may, at
reasonable times and after notice to Landlord, inspect all invoices and other
supporting material relevant to the computation of said operating expenses. In
the event that Landlord is found to have over billed Tenant for Tenant's
proportionate share of operating expenses, or to have misstated the operating
expenses of the Property, such overcharges shall be refunded to Tenant together
with interest at an annual rate equal to the Lease Interest Rate, commencing to
accrue ten (10) days after such overcharge is discovered. Tenant shall with each
monthly installment of Annual Fixed Rent, make operating fund payments to
Landlord. The term "operating fund payments" shall refer to such payments as
Landlord shall reasonably determine to be sufficient to provide in the aggregate
a fund adequate to pay, when they become due and payable, all payments required
from Tenant under this Section. In calculating operating fund payments, Landlord
shall calculate the amounts payable by Tenant on the basis of operating expenses
incurred in the previous year. In the event that the aggregate of said operating
fund payments is not adequate to pay Tenant's proportionate share of operating
expenses, Landlord shall so notify Tenant, specifying the additional amount
required, and Tenant shall pay to Landlord the amount by which such aggregate is
less than the amount of said share, such payment to be due and payable at the
time set forth above. Any surplus operating fund payments shall be accounted for
to Tenant after such surplus has been determined, and will be credited by
Landlord against the next operating fund payment due from Tenant or if at the
end of the Term, refunded to Tenant.
<PAGE>
4.2.4 TENANT'S PROPORTIONATE SHARE. Tenant's proportionate
share of real estate taxes pursuant to Section 4.2.1 shall be the
excess of real estate taxes allocable to the Premises over Tenant's
Included Share of Real Estate Taxes, where real estate taxes allocable
to the Premises means the real estate taxes for the Property multiplied
by a fraction, the numerator of which is the number of r.s.f. of the
Premises and the denominator of which is the number of r.s.f.
determined by multiplying the Total Rentable Floor Area of the
Buildings the greater of by (a) ninety-five percent (95%) or (b) a
fraction, the numerator of which is the actual number of r.s.f. leased
and the denominator of which is the Total Rentable Floor Area of the
Buildings. Tenant's proportionate share of operating expenses pursuant
to Section 4.2.3 shall be the excess of operating expenses allocable to
the Premises over Tenant's Included Share of Operating Expenses, where
operating expenses allocable to the Premises means the operating
expenses for the Property multiplied by a fraction, the numerator of
which is the number of r.s.f. of the Premises and the denominator of
which is the number of r.s.f. determined by multiplying the Total
Rentable Floor Area of the Buildings by (a) ninety-five percent (95%)
or (b) a fraction, the numerator of which is the actual number of
r.s.f. leased and the denominator of which is the Total Rentable Floor
Area of the Buildings.
4.2.5 TENANT'S ELECTRICITY USAGE. Landlord shall supply
electricity to the Premises ("Tenant's Electricity") at all times
without interruption for normal office use, including, without
limitation, lighting and electrical outlets. Landlord represents that
there is sufficient service to the Premises to permit Tenant to use the
Premises for the Permitted Uses. Tenant's electricity usage shall be
included as an operating expense and Tenant shall pay Tenant's
Proportionate Share thereof as set forth in Section 4.2.4, above.
Tenant shall not, without Landlord's prior consent in each instance,
connect anything, other than ordinary and typical office machines,
including, without limitation, desk-top computers, servers, printers
and similar small computer equipment (the usage of which shall
constitute normal office use), to the Building's electric system which
actually and materially increases the consumption of electricity or
require the material alteration or addition to the electric system of
the Premises. Should Landlord grant such consent, all additional risers
or other equipment therefor shall be provided by Landlord at the
Tenant's expense and the extra cost of electricity arising from such
use shall be charged to Tenant at Landlord's cost.
ARTICLE V
LANDLORD'S COVENANTS
5.1 LANDLORD'S COVENANTS. Landlord covenants:
5.1.1 to furnish, through Landlord's employees or independent
contractors, the services listed in EXHIBIT D.
<PAGE>
5.1.2 except as otherwise provided in Article VI and VII, to,
make promptly such repairs to the roof, structural elements,
foundation, building systems, insulation, caulking, exterior walls and
glass, floor slabs and all parts of the common areas and facilities of
the Buildings, and landscaping as may be necessary to keep them in
condition suitable for a first class office building.
5.1.3 that Landlord has the right to make this Lease and that
Tenant, on paying the rent and performing its obligations in this
Lease, shall peacefully and quietly have, hold and enjoy the Premises
throughout the Term, subject to all terms and provisions hereof,
including, but not limited to, Landlord's enforcement of its rights on
behalf of Tenant with respect sewage treatment plants located or to be
located on the Property under (a) Section 7 of that certain Memorandum
of Agreement dated as of August 30, 1999, as amended between Landlord,
the Town of Wayland and the Wayland Wastewater Management District
Commission and (b) Section 14.03 (c) of that certain Purchase and Sale
Agreement dated as of August 22, 1997, as amended between Wayland
Meadows Corporation and Landlord's affiliate.
5.1.4 maintain, or cause to be maintained, the common
facilities and the Buildings in material compliance with all applicable
laws (including, without limitation, ADA and related handicapped access
laws) and all applicable ordinances, orders and regulations of
governmental authorities. Tenant shall cause the Premises to materially
comply all applicable laws related to Tenant's specific use and
occupancy (including, without limitation, ADA and related handicapped
access laws).
<PAGE>
5.1.5 to maintain, or cause to be maintained, a policy or
policies of insurance, issued by and binding upon an insurance company
of good financial standing, insuring the Buildings against loss or
damage by fire and other insurable hazards and contingencies normally
insured against by owners of multi-tenant low-rise office buildings in
the Wayland/Sudbury/Marlborough area, in the amount of the replacement
cost thereof; provided, that Landlord shall not be obligated to insure
any furniture, equipment, machinery, goods or supplies, including
without limitation any Tenant personalty not covered by this Lease
which Tenant may keep or maintain in the Premises.
5.1.6 to maintain, or cause to be maintained, a policy or
policies of commercial general liability insurance (with respect to the
Property) under which Landlord shall be the named insured and any
ground lessor and holder of a mortgage on the Property and Tenant are
named as additional insureds. The minimum limits of liability of such
insurance for each year shall be $1,000,000 per person and $3,000,000
per occurrence for combined bodily injury (or death) and $1,000,000
damage to property (per occurrence), and from time to time during the
Term for such higher limits, if any, as are carried customarily in the
Greater Boston area with respect to similar properties.
<PAGE>
5.2 INTERRUPTIONS. Landlord shall not be liable to Tenant for any
compensation or reduction of rent by reason of inconvenience or annoyance or for
loss of business arising from power and other utility losses and shortages, the
necessity of Landlord's entering the Premises for any of the purposes in this
Lease authorized, or for repairing the Premises or any portion of the Property
however the necessity may occur; provided, however, that Landlord shall use
reasonable efforts not to interfere with or to minimize interference with
Tenant's business in making any such entry or repair. In case Landlord is
prevented or delayed from making any repairs, alterations or improvements, or
furnishing any services or performing any other covenant or duty to be performed
on Landlord's part, by reason of any cause reasonably beyond Landlord's control
(excluding financial inability), Landlord shall not be liable to Tenant
therefor, nor, except as expressly otherwise provided in Section 7.1, shall
Tenant be entitled to any abatement or reduction of rent by reason thereof, nor
shall the same give rise to a claim in Tenant's favor that such failure
constitutes actual or constructive, total or partial, eviction from the
Premises.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs have
been completed, provided, however, that in each instance of stoppage or
interruption, Landlord shall exercise reasonable diligence to eliminate the
cause thereof.
ARTICLE VI
TENANT'S COVENANTS
6.1 TENANT'S COVENANTS. Tenant covenants during the Term and such
further time as Tenant occupies any part of the Premises:
<PAGE>
6.1.1 to pay when due: all Annual Fixed Rent and Additional
Rent, and other charges hereunder; a late charge computed at the rate
of three percent (3%) per month on all Annual Fixed Rent, Additional
Rent and other charges hereunder not paid within ten (10) days after
the date when due; all taxes which may be imposed on Tenant's personal
property on the Premises (including without limitation, Tenant's
fixtures and equipment) regardless to whom assessed; and all charges by
Landlord or public utilities for electricity, telephone, and gas
services and service inspections therefor; and all charges by public
utilities for installation of metering devices. Any charge by Landlord
in connection with the provision of utilities or the servicing thereof
shall be at the cost billed to Landlord for the same. Any cash deposits
or other security required by any utility or similar service provided
shall be the sole responsibility of Tenant.
6.1.2 except as otherwise provided in Article VII and Section
5.1.2, to keep the Premises, including all interior glass, clean and in
good order, repair and condition, reasonable wear and damage by fire
and casualty only excepted, and at the expiration or termination of
this Lease peaceably to yield up the Premises and all changes and
additions therein in such good order, repair and condition, first
removing all goods, effects, and fixtures of Tenant and any items the
removal of which is required by any agreement given pursuant to
Sections 3.1 or 3.2 hereof, or specified therein to be removed at
Tenant's election and which Tenant elects to remove, and repairing all
damage caused by such removal and restoring the Premises to such good
order, repair and condition (subject to the exceptions noted above) and
leaving them clean and neat;
<PAGE>
6.1.3 not to injure or deface the Premises, Buildings, Land,
or Property, nor to permit in the Premises any auction sale, or
nuisance, or the emission from the Premises of any objectionable noise
or odor, nor to commit or permit any waste in or with respect to the
Premises nor to generate, store or dispose of any oil, hazardous
wastes, or hazardous material as defined in Chapter 21C, Chapter 21D,
and Chapter 21E of the General Laws of Massachusetts and the
regulations promulgated by the Massachusetts Department of
Environmental Protection, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 6901
ET SEQ., the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Section 6901 ET SEQ., the Toxic Substances Control Act,
15 U.S.C. Section 2061 ET SEQ., the Federal Clean Water Act,
33 U.S.C. Section 1251, and the Federal Clean Air Act, 42 U.S.C.
Section 7401 ET SEQ., or other applicable state or local laws, or
regulations adopted pursuant to any of the foregoing (except for
customary amounts which may be contained in typical office supplies or
cleaning fluids), nor to use or devote the Premises or any part thereof
for any purpose other than the Permitted Uses, nor any use thereof
which is improper, contrary to law or ordinance, or which will
invalidate or increase the premiums for, any insurance on the Buildings
or the Property or its contents; or which will render necessary any
alteration or addition to the Buildings or the Property;
<PAGE>
6.1.4 not to obstruct in any manner any portion of the
Building not hereby leased or any portion thereof or of the Property
used by Tenant in common with others; nor without prior consent of
Landlord to permit the painting or placing of any signs or the placing
of any curtains, blinds, shades, awnings, aerials or flagpoles, or the
like, visible from outside the Premises; and to comply with the rules
and regulations set forth in EXHIBIT E and all other commercially
reasonable rules and regulations of general applicability to all
tenants in the Buildings hereafter made by Landlord, of which Tenant
has been given notice (the "Rules and Regulations"). Landlord shall not
be liable to Tenant for the failure of other tenants of the Buildings
to conform to the Rules and Regulations but Landlord agrees that the
Rules and Regulations shall be generally enforced against all tenants
on the Property. In the event of any inconsistency between any of the
Rules and Regulations and the terms of this Lease, the terms of this
Lease shall prevail;
6.1.5 to keep the Premises equipped with all safety appliances
required by law or ordinance or any other regulation of any public
authority because of any use made by Tenant of the Premises, and to
procure all licenses and permits so required because of Tenant's use
(other than a certificate of occupancy permitting general office use)
and, if requested by Landlord, to do any work so required because of
Tenant's manner of use of the Premises, it being understood that the
foregoing provisions shall not be construed to broaden in any way
Tenant's Permitted Uses;
6.1.6
(a) not to assign, mortgage, pledge, hypothecate
or otherwise transfer this Lease (whether by transfer of the shares of
stock or other equity interest in the entity constituting Tenant or
otherwise excluding, however any transfer of publicly held shares of
Tenant) or sublet all or any portion of the Premises, or permit
occupancy of the Premises or any part thereof by anyone other than
Tenant, without the prior written consent of Landlord except as
otherwise expressly provided herein which consent shall not be
unreasonably withheld, conditioned or delayed.
<PAGE>
(b) that in the event Tenant proposes to assign
this Lease or sublet the Premises or any part thereof, Tenant shall
give Landlord written notice ("Tenant's Notice") thereof, conforming to
the requirements of subparagraph (c) below, sixty (60) days prior
thereto, which notice shall specify the date on which such assignment
or subletting is intended to occur or commence. Landlord shall then
have a period of thirty (30) days following receipt of such notice
within which to notify Tenant in writing that Landlord elects (1) to
exercise its rights under subparagraph (d) below, or (2) give Tenant
notice whether or not Landlord consents to the proposed assignment or
subletting, which consent shall not be unreasonably withheld,
conditioned or delayed. Tenant's Notice shall contain the name and
address of the proposed assignee or subtenant, all material terms of
the proposed assignment or sublease, and full information with respect
to the creditworthiness of the proposed assignee or subtenant. Any
proposed assignment or subletting shall be subject to the following
conditions and Landlord shall not be deemed to be unreasonable for
withholding its consent to a proposed assignment or sublease where one
or more of the following conditions are not fulfilled:
(i) Any proposed sublease or assignment must be
submitted to Landlord at least sixty (60)
days before the commencement or effective
date thereof for review by Landlord;
<PAGE>
(ii) Any sublease must provide that the same is
subject to all of the terms and conditions
of this Lease and the sublease must provide
that in the event of cancellation or
termination of this Lease for any reason
whatsoever or of the surrender of this Lease
whether voluntary, involuntary or by
operation of law, prior to the expiration
date of such sublease, including extensions
and renewals granted thereunder, the
proposed subtenant agrees to make full and
complete attornment to Landlord for the
balance of the term of the sublease, at the
option of Landlord, at any time during the
proposed subtenant's occupancy of a portion
of the Premises, which attornment shall be
evidenced by an agreement in form and
substance reasonably satisfactory to
Landlord, which the proposed subtenant
agrees to execute and deliver at any time
within five (5) days after request of
Landlord, its successors and assigns, and
the proposed subtenant waives the provisions
of any law now or hereafter in effect which
may give the proposed subtenant any right of
election to terminate the sublease or to
surrender possession of the Premises in the
event any proceeding is brought by Landlord
under this Lease to terminate this Lease;
(iii) Any agreement of assignment must be
accompanied by an instrument of assumption
in recordable form which contains a covenant
by the assignee running to Landlord;
<PAGE>
(iv) The subtenant or assignee must be a United
States citizen or citizens or a corporation
or other business entity qualified to do
business in the Commonwealth of
Massachusetts, such subtenant or assignee
must have creditworthiness sufficient in
Landlord's reasonable judgment for the
purposes of the obligations being incurred,
and with a general reputation in the
business community reasonably satisfactory
to Landlord; and such subtenant or assignee
must carry on a business which is consistent
with the Permitted Uses;
(v) There may not be an Event of Default which
has occurred and which is then continuing;
(vi) Any subletting (except pursuant to
subparagraph (f) below) shall be at a rental
rate not less than the lesser of a) the rent
then payable under the Lease or (b) that
currently being charged by Landlord for
comparable sub-lease space in the Buildings
for a comparable term, at the time of such
subletting;
(vii) The space proposed to be sublet shall be
required to be regular in shape and
configuration with appropriate means of
ingress and egress suitable for normal
renting purposes;
<PAGE>
If Landlord consents to any subletting or assignment by Tenant
as hereinabove provided, Tenant shall deliver, within thirty (30) days
of execution thereof, a copy of the duly executed sublease or
assignment, substantially in the form approved by Landlord based on
Tenant's Notice. The listing of any name other than that of Tenant,
whether on the doors of the Premises or Building directory, or
otherwise, shall not operate to vest any right or interest in this
Lease or in the Premises, nor shall it be deemed to be the consent of
Landlord to any assignment or transfer of this Lease or to any sublease
of the Premises or to the use or occupancy thereof by others unless
Landlord has so consented in writing pursuant to the terms hereof.
(c) In the event of a proposed sublease or
assignment, other than pursuant to subparagraph (f) below, Landlord
shall have the election (exercisable in writing within thirty (30) days
of receipt of Tenant's Notice) to terminate this Lease with respect to
the space subject to the proposed sublease. If Landlord exercises its
option to terminate, Tenant shall vacate the affected portion of the
Premises forthwith, leaving them in the same condition they would have
been in pursuant to Section 6.1.2., and Landlord shall erect such
demising walls, corridors and partitions, and perform such other work,
as may be reasonably required as a consequence, at Landlord's cost.
<PAGE>
(d) If Landlord consents to any subletting or
assignment by Tenant as hereinabove provided, and subsequently any
rents or other consideration payable under, for or on account of such
sublease are in excess of the rent payable by Tenant under this Lease
allocable to such space, or any additional sum or other value is paid
to Tenant by the assignee under any such assignment in consideration
for such assignment, then sixty percent (60%) of such excess rents
under any such sublease or the additional sum or other value for any
such assignment, after the deduction of reasonable and actual cash out
of pocket expenses to arm's length parties, shall be due and payable by
Tenant to Landlord as and when received by Tenant.
(e) Anything to the contrary contained in this
Lease notwithstanding, Tenant may, without Landlord's prior written
consent, but on ten (10) days' advance notice to Landlord, assign this
Lease to a corporation or other business entity into or with which the
named Tenant herein shall be merged, or consolidated, a subsidiary
corporation or other subsidiary business entity of Tenant (of which
Tenant owns, directly or indirectly, greater than fifty-one (51%)
percent of any capital stock or, if not a corporation, of which Tenant
owns, directly or indirectly, greater than a fifty-one (51%) percent
legal and beneficial interest), a parent corporation or other parent
business entity of Tenant (i.e. an entity owning, directly or
indirectly, greater than a fifty-one (51%) percent legal and beneficial
interest in Tenant) or any corporation or other business entity to
which all or substantially all of Tenant's assets are sold (all of the
foregoing being hereafter called a "Permitted Assignee"), provided same
is a bona fide transaction, with no intent to circumvent the covenants,
conditions provisions and terms of this Lease.
(f) No subletting or assignment by Tenant nor
any consent thereto by Landlord shall relieve Tenant of the continuing
primary liability of Tenant under this Lease. No consent to any
assignment or subletting in a specific instance shall operate as a
waiver in any subsequent instance.
<PAGE>
6.1.7 to defend with counsel selected by Tenant, and
reasonably acceptable to Landlord, save harmless, and indemnify
Landlord from and against all actual liability, damages, losses,
injuries or claims of whatever nature (including, without limitation,
reasonable counsel fees and disbursements) arising from (i) any act,
omission or negligence of Tenant, or Tenant's contractors, licensees,
invitees, agents, servants or employees, or (ii) any use made or thing
done or occurring on the Premises from the Term Commencement Date until
the end of the Term.
Tenant agrees to maintain in full force from the date upon
which Tenant first enters the Premises for any reason, throughout the
Term, and thereafter, so long as Tenant is in occupancy of any part of
the Premises, a policy of commercial general liability insurance under
which Landlord, (and any ground lessor and holder of a mortgage on the
Property of which Tenant has been given written notice), and Tenant are
named as insureds, and under which the insurer provides a contractual
liability endorsement insuring against all cost, expense and liability
arising out of or based upon any and all claims, accidents, injuries
and damages, in the broadest form of such coverage from time to time
available. Each such policy shall be non-cancelable and non-amendable
(to the extent that any proposed amendment reduces the limits or the
scope of the insurance required in this Lease) with respect to Landlord
and such ground lessors and mortgagees without thirty (30) days' prior
written notice to Landlord and such ground lessors and mortgagees and a
duplicate original thereof shall be delivered to Landlord. The minimum
limits of liability of such insurance for each year shall be as set
forth in Section 1.1 for combined bodily injury (or death) and damage
to property (per occurrence), and from time to time during the Term for
such higher limits, if any, as are carried customarily in the ARoute
128" area with respect to similar properties;
<PAGE>
6.1.8 to keep all Tenant's employees working in the Premises
covered by workmen's compensation insurance in statutory amounts and to
furnish Landlord with certificates thereof;
6.1.9 at all reasonable times and upon reasonable advance
notice (other than in the case of emergency in which case no such
notice shall be required), to permit Landlord and Landlord's agents to
examine the Premises and, if Landlord shall so elect, to make any
repairs or replacements Landlord may deem necessary, to remove, at
Tenant's expense, any changes, additions, signs, curtains, blinds,
shades, awnings, aerials, flagpoles, or the like, not consented to in
writing (if such consent is required hereunder), and (at all reasonable
times and upon reasonable notice to Tenant) to show the Premises to
prospective tenants during the last twelve (12) months of the Term or
at any time after any notice of termination of this Lease, and to
prospective purchasers and prospective mortgagees at any time during
the Term of this Lease, all such rights to be exercised with reasonable
diligence to prevent interruption of Tenant's business operations in
the Premises;
<PAGE>
6.1.10 not to place a load upon the Premises exceeding an
average rate of 75 pounds of live load per square foot of floor area;
and not to move any safe, vault or other heavy equipment in, about or
out of the Premises except in such manner and at such times as Landlord
shall in each instance authorize; Tenant's business machines and
mechanical equipment which cause vibration or noise that may be
transmitted to the Building structure or to any other leased space in
the Building shall be placed and maintained by Tenant in settings of
cork, rubber, spring, or other type of vibration eliminators sufficient
to eliminate such vibration or noise;
6.1.11 all the furnishings, fixtures, equipment, effects and
property of every kind, nature and description of Tenant and of all
persons claiming by, through or under Tenant which, during the
continuance of this Lease or any occupancy of the Premises by Tenant or
anyone claiming under Tenant, may be on the Premises or elsewhere in
the Building, shall be at the sole risk and hazard of Tenant, and if
the whole or any part thereof shall be destroyed or damaged by fire,
water or otherwise, or by the leakage or bursting of water pipes, steam
pipes, or other pipes, by theft or from any other cause, no part of
said loss or damage is to be charged to or to be borne by Landlord
unless caused by the gross negligence or willful misconduct of Landlord
or its agents or employees;
6.1.12 not to suffer or permit any liens to stand against the
Premises by reason of work done, labor services performed or materials
provided for or at the request of Tenant. Tenant shall cause any such
liens to be discharged within thirty (30) days after the date of the
filing thereof, but nothing herein shall prevent Tenant from contesting
any such lien, provided that Tenant shall first provide a surety bond
or other security therefor satisfactory to Landlord; and
<PAGE>
6.1.13 in case Landlord shall, without any fault on its part,
be made party to any litigation commenced by or against Tenant or by or
against any parties in possession of the Premises or any party thereof
claiming under Tenant, to pay, as Additional Rent, all costs, including
without implied limitation, reasonable counsel fees incurred by or
imposed upon Landlord in connection with such litigation, and as
Additional Rent, also to pay all such costs and fees incurred by
Landlord in connection with the successful enforcement by Landlord of
any obligations of Tenant under this Lease. Tenant shall be entitled to
reimbursement from Landlord for comparable costs incurred by Tenant
with respect to litigation commenced by or against Landlord to which
Tenant, without fault on its part, is made a party;
6.1.14 so long as this Lease remains in force, to use and
occupy the Premises for the Permitted Uses, and for no other purpose or
purposes whatsoever without the prior written consent of Landlord.
Tenant agrees to operate and conduct its business on the Premises in a
manner which complies with all applicable laws and regulation; and
6.1.15 if Tenant shall abandon the Premises, the same shall
constitute a default under this Lease and Landlord shall have all of
the same rights and remedies against Tenant as herein granted and
reserved to Landlord by Article IX of this Lease upon a default of
Tenant in this Lease.
Upon the expiration of this Lease or if this Lease should terminate for
any cause, and at the time of such expiration, abandonment or termination, the
Tenant or Tenant's agents, subtenants or any other person should leave any
property of any kind or character on or in the Premises, the fact of such
leaving of property on or in the Premises shall be conclusive evidence of intent
by the Tenant, Tenant's agents or subtenants, to abandon such property so left
in or upon the Premises, and such leaving shall constitute abandonment of the
property.
<PAGE>
It is understood and agreed by and between the parties hereto that none
of Landlord's servants, agents or employees, have or shall have the actual or
apparent authority to waive any portion of this paragraph, and the Tenant shall
have no right to leave any such property upon the Premises without the written
consent of Landlord.
Landlord, its agents or attorneys, shall have the right and authority
without notice to Tenant, Tenant's agent or subtenants, or anyone else, to
remove and destroy, or to sell or authorize disposal of such property, or any
part thereof, without being in any way liable to the Tenant therefor. The said
property received therefor shall belong to the Landlord as compensation for the
removal and disposition of said property.
ARTICLE VII
CASUALTY AND TAKING
7.1 CASUALTY AND TAKING. If, during the Term, the Building or Premises
shall be partially damaged (as distinguished from "substantially damaged," as
that term is hereinafter defined) by fire or casualty, Landlord shall proceed
promptly to restore the Building or Premises (consistent, however, with
governmental laws and codes then in existence) to substantially the condition
thereof at the time of such damage, but Landlord shall not be responsible for
delay in such restoration which may result from any cause beyond the reasonable
control of Landlord.
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If during the Term the Building or Premises shall be substantially
damaged (as that term is hereinafter defined) by fire or casualty, the risk of
which is covered by Landlord's insurance and the holder of any mortgage which
includes the Building as part of the mortgaged premises or any ground lessor of
the Land, allows the insurance proceeds to be applied to the restoration of the
Building, Landlord shall, promptly after such damage and the determination of
the net amount of insurance proceeds available to Landlord, expend so much as
may be necessary of such net amount to restore (consistent, however, with
governmental laws and codes then in existence) the Building and Premises to as
serviceable a condition as the condition thereof at the time of such damage, but
Landlord shall not be responsible for delay in such restoration which may result
from any cause beyond the reasonable control of Landlord, nor shall Landlord be
obligated to restore personal property of Tenant's on the Premises, nor
additions or alterations made by Tenant after initial build out. If the Building
or the Premises shall be substantially damaged by fire or casualty (a) as the
result of a risk not covered by the forms of casualty insurance at the time
maintained by Landlord, or (b) such holder of a mortgage or ground lessor, will
not allow the insurance proceeds to be applied to the restoration of the
Building, or (c) the net amount of insurance proceeds available to Landlord are
insufficient to cover the cost of restoring the Building in the reasonable
estimate of Landlord, then in any such case, Landlord may, but shall have no
obligation to, restore as aforesaid or Landlord may terminate this Lease by
giving notice to Tenant within forty-five (45) days after the occurrence of such
fire or casualty, which notice shall recite the reason among those set forth
above for such termination.
If Landlord does not within sixty (60) days after such fire or casualty
(whether or not covered by Landlord's insurance), advise Tenant of the status of
Landlord's obligations with respect to reconstruction, i.e., whether the net
amount of proceeds is available to cover the cost of restoration, whether
Landlord intends to restore, regardless of the sufficiency or availability of
proceeds, or whether Landlord intends to terminate, thereafter Tenant shall have
the right until Landlord shall have notified Tenant of Landlord's intentions, to
terminate this Lease, such termination to take effect as of the date of such
Tenant's notice.
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If the Premises shall be damaged by fire or casualty within the last
eighteen (18) months of the Term and repairing such damage shall be reasonably
expected to take more than fifty percent (50%) of the remainder of the Term or
to cost more than fifty percent (50%) of the aggregate amount of the Annual
Fixed Rent reserved for the remainder of the Term, either party shall have the
right, by giving notice to the other not later than sixty (60) days after such
damage, to terminate this Lease, whereupon this Lease shall terminate as of the
date of such notice.
The term "substantially damaged," as used in this Article VII, shall
refer to damage of such a character that the same cannot, in the ordinary
course, reasonably be expected to be repaired within sixty (60) days from the
time that repair work would commence.
Except as hereinafter provided, if the Premises and access thereto, or
such portion thereof as to render the balance (if reconstructed to the maximum
extent practicable in the circumstances) unsuitable for the Permitted Use, shall
be taken by condemnation or right of eminent domain, Landlord or Tenant shall
have the right (notwithstanding that the entire interest of either of them may
have been divested) to terminate this Lease by notice to the other of its desire
to do so, provided that such notice is given not later than thirty (30) days
after the effective date of such taking. If so much of the Building shall be so
taken that continued operation of the Building would be uneconomic, Landlord
shall have the right to terminate this Lease by giving notice to Tenant of
Landlord's desire to do so not later than thirty (30) days after the effective
date of such taking.
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Should any part of the Premises be so taken or condemned during the
Term, and should this Lease be not terminated in accordance with the foregoing
provisions, Landlord agrees, to the extent that the holder of any mortgage which
includes the Building as part of the mortgaged premises or any ground lessor of
the Land, allows any condemnation award to be used for such purposes, and in any
event only to the extent of such condemnation award (net of Landlord's expenses,
including without limitation, attorney's fees and disbursements, incurred in
connection with any such taking or condemnation), to use due diligence to put
what may remain of the Premises (consistent, however, with governmental laws and
codes then in existence) into proper condition for use and occupation as nearly
like the condition of the Premises prior to such taking as shall be practicable.
If the Premises shall be damaged by fire, other casualty, or taking, or
if the Tenant shall by reason of such damage or taking be deprived of reasonable
access to the Premises or ability to use them, the Annual Fixed Rent and
Additional Rent shall be justly and equitably abated and reduced according to
the nature and extent of the loss of use thereof suffered by Tenant; and in case
of a taking which permanently reduces the area of the Premises, a just
proportion of the Annual Fixed Rent shall be abated for the remainder of the
Term.
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7.2 RESERVATION OF AWARD. Landlord reserves to itself any and all
rights to receive awards made for damages to the Premises and Building and
Property and the leasehold hereby created, or any one or more of them, accruing
by reason of exercise of eminent domain or by reason of anything lawfully done
in pursuance of public or other authority. Tenant hereby releases and assigns to
Landlord all Tenant's rights to such awards, and covenants to deliver such
further assignments and assurances thereof as Landlord may from time to time
request, hereby irrevocably designating and appointing Landlord as its
attorney-in-fact to execute and deliver in Tenant's name and behalf all such
further assignments thereof. It is agreed and understood, however, that Landlord
does not reserve to itself, and Tenant does not assign to Landlord, any damages
payable for (i) movable trade fixtures installed by Tenant or anybody claiming
under Tenant at its own expense or fixtures, items or leasehold improvements,
whether deemed realty or not, to the extent undepreciated and to the extent
Tenant has paid the cost thereof (specifically excluding the leasehold
improvements paid for through the Tenant's Allowance), or (ii) relocation
expenses recoverable by Tenant from such authority in a separate action.
ARTICLE VIII
RIGHTS OF MORTGAGEE
8.1 SUPERIORITY OF LEASE. Except as otherwise provided in Section 8.6
below, this Lease shall be superior to and shall not be subordinated to any
mortgage or other voluntary lien or other encumbrance arising after the date
hereof on the Land or Buildings, or both, which are separately and together
hereinafter in this Article VIII referred to as "the mortgaged premises." The
word "mortgagee" as used in this Lease shall include the holder for the time
being and any ground lessor or sublessor whenever the context permits.
8.2 NO PREPAYMENT. No Annual Fixed Rent, Additional Rent, or any other
charge shall be paid prior to the due dates thereof and payments made in
violation of this provision shall (except to the extent that such payments are
actually received by a mortgagee in possession or in the process of foreclosing
its mortgage) be void as against such mortgagee and Tenant shall be liable for
the amount of such payments to such mortgagee.
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8.3 NO RELEASE OR TERMINATION. No act or failure to act on the part of
Landlord which would entitle Tenant under the terms of this Lease, or by law, to
be relieved of Tenant's obligations hereunder or to terminate this Lease, shall
result in a release or termination of such obligations or a termination of this
Lease unless (i) Tenant shall have first given written notice of Landlord's act
or failure to act to Landlord's mortgagees of record, if any (provided Tenant
has received written notice of such mortgagees), specifying the act or failure
to act on the part of Landlord which could or would give basis to Tenant's
rights; and (ii) such mortgagees, after receipt of such notice, have failed or
refused to correct or cure the condition complained of within a reasonable time
thereafter; but nothing contained in this Section 8.3 shall be deemed to impose
any obligation on any such mortgagee to correct or cure any such condition.
8.4 NO MODIFICATION, ETC. No assignment of this Lease and no agreement
to make or accept any surrender, termination or cancellation of this Lease and
no agreement to modify so as to reduce the rent, change the Term, or otherwise
materially change the rights of Landlord under this Lease, or to relieve Tenant
of any obligations or liability under this Lease, shall be valid unless
consented to in writing by Landlord's mortgagees of record, if any (provided
Tenant has received notice of such mortgagees).
8.5 CONTINUING OFFER. The covenants and agreements contained in this
Lease with respect to the rights, powers and benefits of a mortgagee
(particularly, without limitation thereby, the covenants and agreement contained
in this Article VIII) constitute a continuing offer to any person, corporation
or other entity, which by accepting or requiring an assignment of this Lease or
by entry or foreclosure assumes the obligations herein set forth with respect to
such mortgagee; such mortgagee is hereby constituted a party to this Lease as an
obligee hereunder to the same extent as though its name were written herein as
such, and such mortgagee shall be entitled to enforce such provisions in its own
name.
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8.6 SUBORDINATION. This Lease shall be subject and subordinate to any
existing mortgage on the mortgaged premises, and to any and all modifications,
extension, renewals thereof and any and all advances hereafter made thereunder,
and, in addition, Landlord shall have the option to require the subordination of
this Lease to any mortgage hereafter made which includes the Premises as part of
the mortgaged premises, provided that the holder thereof enters into an
agreement with Tenant by the terms of which (a) in the event of acquisition of
title by such holder through foreclosure proceedings or otherwise, and provided
there is not an Event of Default by Tenant hereunder then continuing, the holder
will agree not to disturb Tenant's rights of possession, subject to any rights
of the Tenant regarding defaults of the Landlord of which Tenant has given
notice pursuant to Section 8.3, and (b) Tenant will agree to recognize and
attorn to the holder of such mortgage as Landlord in such event. This agreement
shall be made to expressly bind and inure to the benefit of the successors and
assigns of Tenant and of the holder and upon anyone purchasing said Premises at
any foreclosure sale. Tenant agrees to execute one or more agreements to
effectuate the foregoing upon the request of Landlord. Any such mortgage to
which the Lease shall be subordinated may contain such terms, provisions and
conditions as the holder deems usual or customary.
8.7 IMPLEMENTATION. Tenant agrees on request of Landlord to execute,
acknowledge and deliver from time to time any agreement which may reasonably be
deemed necessary to effectuate the provisions of this Article VIII.
ARTICLE IX
DEFAULTS
9.1 EVENTS OF DEFAULT. Each of the following shall be an "Event of
Default" hereunder:
(a) If Tenant shall default in the performance of any of its
obligations to pay the Annual Fixed Rent, Additional Rent, or any other
charge payable to Landlord under this Lease (each, a "monetary
default") and if such monetary default shall continue for five (5) days
after written notice thereof from Landlord to Tenant; provided,
however, that Landlord shall not be obligated to deliver written notice
of a monetary default more than two (2) times in any Lease Year;
(b) if within thirty (30) days after written notice from
Landlord to Tenant specifying any other default or defaults other than
a monetary default, Tenant has not commenced diligently to correct the
default or defaults so specified or has not thereafter diligently
pursued such correction to completion;
(c) if any assignment shall be made by Tenant or any guarantor
of Tenant for the benefit of creditors;
(d) if Tenant's leasehold interest shall be taken on
execution; and
(e) if a petition is filed by Tenant for adjudication as a
bankrupt, or for reorganization or an arrangement under any provision
of the Bankruptcy Act as then in force and effect, or if an involuntary
petition under any of the provisions of said Bankruptcy Act is filed
against Tenant and such involuntary petition is not dismissed within
ninety (90) days thereafter.
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9.2 REMEDIES AND DAMAGES.
(a) Upon the occurrence of any Event of Default, Landlord may, at its
option, terminate this Lease, by notice to Tenant, whereupon this Lease shall
terminate as fully and completely as if the date of Landlord's notice as
aforesaid were the date herein originally fixed for the expiration of the Term,
Tenant hereby waiving all statutory rights (including without limitation rights
of redemption, if any, to the extent such rights may be lawfully waived) except
that Tenant shall continue to be liable to Landlord as provided herein.
(b) If this Lease shall have been terminated as provided in this
Section 9.1 or otherwise, or if any execution or attachment shall be issued
against Tenant or any of Tenant's property whereupon the Premises shall be taken
or occupied by someone other than Tenant, then Landlord may, without notice,
re-enter the Premises, either by summary proceedings, ejectment or otherwise,
and remove and dispossess Tenant and all other persons or any and all property
from the same, as if the Lease had not been made. Landlord may, at its option,
remove and store any of Tenant's effects, and those of any persons claiming by
through and under Tenant, at the expense and risk of Tenant.
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(c) In the event of any termination of this Lease, Tenant shall pay the
Annual Fixed Rent, Additional Rent and all other sums payable hereunder up to
the time of such termination, and thereafter Tenant, until the end of what would
have been the Term of this Lease in the absence of such termination, and whether
or not the Premises shall have been relet, shall be liable to Landlord for, and
shall pay to Landlord, as liquidated current damages, the Annual Fixed Rent,
Additional Rent and other sums which would be payable hereunder if such
termination had not occurred, less the net proceeds, if any, of any reletting of
the Premises after deducting all reasonable and customary expenses in connection
with such reletting, including, without limitation, all repossession costs,
brokerage commissions, reasonable legal expenses, reasonable attorneys' fees,
advertising, expenses of employees, alteration costs and expenses of preparation
for such reletting. Tenant shall pay such current damages to Landlord monthly on
the days which the Annual Fixed Rent, Additional Rent and other sums would have
been payable hereunder if this Lease had not been terminated.
(d) At any time after such termination, whether or not Landlord shall
have collected any such current damages, as liquidated final damages and in lieu
of all such current damages beyond the date of such demand, at the election of
Landlord exercisable at any time, Tenant shall pay to Landlord an amount equal
to the net present value (discounted at the annual rate of nine percent (9%)) of
the excess, if any, of the Annual Rent, which would be payable hereunder from
the date of such demand (assuming that, for the purposes of this paragraph,
annual payments by Tenant on account of Real Estate Taxes and Operating Expenses
would be the same as the payments required for the immediately preceding
operating or tax year) for which remained in effect, over the Term of this Lease
if the same remained in effect, over the then fair rental value of the Premises
for the same period.
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(e) In case of any Event of Default, re-entry, expiration and
dispossession by summary proceedings or otherwise, Landlord may (i) relet the
Premises or any part or parts thereof, either in the name of Landlord or
otherwise, for a term or terms which may, at Landlord's option, be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the Term of this Lease and may grant concessions or free rent to the
extent that Landlord considers advisable and necessary to relet the same and
(ii) may make such reasonable alterations, repairs and decorations in the
Premises as Landlord in its sole judgment considers advisable and necessary for
the purpose of reletting the Premises; and the making of such alterations,
repairs and decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Tenant hereby expressly waives any and all
rights of redemption granted by or under any present or future laws in the event
of Tenant being evicted or dispossessed, or in the event of Landlord obtaining
possession of the Premises, by reason of the violation by Tenant of any of the
covenants and conditions of this Lease.
(f) The specified remedies to which Landlord may resort hereunder are
not intended to be exclusive of any other remedies (including, without
limitation, the remedies to which Landlord is entitled under Section 10.12) or
means of redress to which Landlord may at any time be entitled lawfully, and
Landlord may invoke any remedy (including, without limitation, the remedy of
specific performance) allowed at law or in equity as if specific remedies were
not herein provided for.
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ARTICLE X
MISCELLANEOUS
10.1 WHEN LEASE BECOMES BINDING. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall become
effective and binding only upon the execution and delivery hereof by both
Landlord and Tenant. All negotiations, considerations, representations and
understandings between Landlord and Tenant are incorporated herein and may be
modified or altered only by written agreement between Landlord and Tenant, and
no act or omission of any employee or agent of Landlord shall alter, change or
modify any of the provisions hereof.
10.2 TITLES. The titles of the Articles are for convenience only and
are not to be considered in construing this Lease.
10.3 NOTICE OF LEASE. Landlord and Tenant agree that neither party
shall record this Lease. Upon request of either party, both parties shall
execute and deliver after the Term begins a notice of this Lease in form
appropriate for recording or registration, and if this Lease is terminated
before the Term expires, an instrument in such form acknowledging the date of
termination.
10.4 HOLDING OVER. Any holding over by Tenant after the expiration of
the Term shall be treated as a tenancy at sufferance at twice the Annual Fixed
Rent and Additional Rent herein provided to be paid during the last twelve (12)
months of the Term (prorated on a daily basis) and shall otherwise be on the
terms and conditions set forth in this Lease, as far as applicable.
10.5 NOTICE. Whenever any notice, approval, consent, request or
election is given or made pursuant to this Lease it shall be in writing.
Communications and payments shall be addressed if to Landlord at Landlord's
Original Address or at such other address as may have been specified by prior
notice to Tenant, and if to Tenant, at Tenant's Original Address or at such
other address as may have been specified by prior notice to Landlord. Any
communication or notice so addressed shall be deemed duly served when delivered
in hand, by reputable overnight courier (e.g., Federal Express) or three (3)
business days after deposit in the U.S. Mail, registered or certified mail,
return receipt requested.
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10.6 BIND AND INURE. The obligations of this Lease shall run with the
land, and this Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that only the
original Landlord named herein shall be liable for obligations accruing before
the beginning of the Term, and thereafter the original Landlord named herein and
each successive owner of the Premises shall be liable only for the obligations
accruing during the period of its ownership. Whenever the Premises are owned by
a trustee or trustees, the obligations of Landlord shall be binding upon
Landlord's trust estate, but not upon any trustee or beneficiary of the trust
individually.
10.7 NO SURRENDER. The delivery of keys to any employee of Landlord or
to Landlord's agent or any employee thereof shall not operate as a termination
of this Lease or a surrender of the Premises.
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10.8 NO WAIVER, ETC. The failure of Landlord or of Tenant to seek
redress for violation of, or to insist upon the strict performance of, any
covenant or condition of this Lease or any of the Rules and Regulations shall
not be deemed a waiver of such violation nor prevent a subsequent act, which
would have originally constituted a violation, from having all the force and
effect of an original violation. The failure of Landlord to enforce any of said
Rules and Regulations against any tenant in the Buildings shall not be deemed a
waiver of any such rules or regulations, but Landlord shall not enforce such
Rules and Regulations inconsistently or adopt any new rules or regulations which
are unreasonable. The receipt by Landlord of Annual Fixed Rent, Additional Rent
or any other charges with knowledge of the breach of any covenant of this Lease
shall not be deemed to be a waiver of such breach by Landlord, unless such
waiver be in writing signed by Landlord. No consent or waiver, express or
implied, by Landlord or Tenant to or of any breach of any agreement or duty
shall be construed as a waiver or consent to or of any other breach of the same
or any other agreement or duty.
10.9 NO ACCORD AND SATISFACTION. No acceptance by Landlord of a lesser
sum than the Annual Fixed Rent, Additional Rent and any other charges then due
shall be deemed to be other than on account of the earliest installment of such
rent due, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such installment or pursue any other remedy
provided in this Lease. Notwithstanding anything to the contrary herein, in the
event of a dispute, Tenant may make any payment of rent when due under protest
but nothing shall relieve Tenant of its obligations to punctually and duly
perform its obligations hereunder.
10.10 CUMULATIVE REMEDIES. The specific remedies to which either
Landlord or Tenant may resort under the terms of this Lease are cumulative and
are not intended to be exclusive of any other remedies or means of redress to
which it may be lawfully entitled in case of any breach, or threatened breach by
the other party of any provisions of this Lease. In addition to the other
remedies provided in this Lease, Landlord and Tenant shall be entitled to seek
the restraint by injunction of the violation or attempted or threatened
violation of any of the covenants, conditions or provisions of this Lease or to
seek a decree compelling specific performance of any such covenants, conditions
or provisions.
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10.11 PARTIAL INVALIDITY AND APPLICABLE LAW. This Lease shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts and, if any provisions of this Lease shall to any extent be
invalid, the remainder of this Lease shall not be affected thereby. There are no
oral or written agreements between Landlord and Tenant affecting this Lease.
This Lease may be amended, and the provisions hereof may be waived or modified,
only by instruments in writing executed by Landlord and Tenant.
10.12 LANDLORD'S RIGHT TO CURE TENANT'S DEFAULTS. If Tenant shall at
any time default in the performance of any obligation under this Lease, Landlord
shall have the right, but shall not be obligated, to enter upon the Premises and
to perform such obligation notwithstanding the fact that no specific provisions
for such substituted performance by Landlord are made in this Lease with respect
to such default. Except in case of emergency, these rights shall be exercised
only after ten (10) business days prior written notice from Landlord to Tenant
of Landlord's intention to do so. In performing such obligation, Landlord may
make any payment of money or perform any other act. All sums so paid by Landlord
(together with interest at an annual rate equal to the Lease Interest Rate,
commencing to accrue five (5) days after the date of demand for payment) plus
three percentage points (3%)) and all necessary incidental costs and expenses in
connection with the performance of any such act by Landlord shall be deemed to
be Additional Rent under this Lease and shall be payable to Landlord immediately
upon demand. Landlord may exercise the foregoing rights without waiving any
other of its rights or releasing Tenant from any of its obligations under this
Lease.
10.13 ESTOPPEL CERTIFICATES. Landlord or Tenant (the "Responding
Party") shall from time to time, upon request by the other party hereto (the
"Requesting Party"), execute, acknowledge and deliver to the Requesting Party or
its designee within ten (10) days of a request therefor a statement in writing
certifying:
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(a) that to the Responding Party's knowledge, this Lease is
unmodified and unamended and in full force and effect, that there are
no defenses, offsets or counterclaims to Tenant's obligations to pay
the Annual Fixed Rent and Additional Rent and other charges payable
under this Lease and that there have been and currently are no defaults
of Landlord or Tenant under this Lease (or, if there have been any
modifications or amendments, that the same is in full force and effect
as modified and stating the modifications or amendments and, if there
are any defenses, offsets, counterclaims or defaults, setting them
forth in reasonable detail);
(b) the amounts of and dates to which the Annual Fixed
Rent, Additional Rent and other charges have been paid;
(c) that Tenant has accepted, is satisfied with, and is in
full possession of the Premises, including all improvements, additions,
and alterations thereto required to be made by Landlord under the
Lease;
(d) that the Landlord and/or Tenant has satisfactorily
complied with all of the requirements and conditions precedent to the
commencement of the Term of the Lease as specified in the Lease;
(e) the Term, the Term Commencement Date, and that Tenant
has been in occupancy and paying rent since the Term Commencement
Date;
(f) that no prepayment or reduction of rent and no
modification, termination or acceptance of Lease will be valid as to
the party to whom such certificate is addressed without the consent of
such party; and
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(g) to such other effects as the Requesting Party shall
reasonably request. Any such statement delivered pursuant to this
Section 10.13 may be relied upon by the Requesting Party, its partners,
or any prospective purchaser or mortgagee of any interest in the
Buildings or Property.
10.14 WAIVER OF SUBROGATION. Any insurance carried by either party with
respect to the Premises and property therein or occurrences thereon shall, if
the other party so requests and if it can be so written without additional
premium, or with an additional premium (provided the other party agrees to pay),
include a clause or endorsement denying to the insurer rights of subrogation
against the other party to the extent rights have been waived by the insured
prior to occurrence of injury of loss. Each party, notwithstanding any
provisions of this Lease to the contrary, hereby waives any rights of recovery
against the other for injury or loss due to hazards covered or required to be
covered by insurance containing such clause or endorsement to the extent of the
indemnification received thereunder.
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10.15 BROKERAGE. Tenant warrants and represents that it has not dealt
with any real estate broker or agent in connection with this Lease or its
negotiation except, Trammell Crow Company and Equis Corporation (the "Brokers").
Tenant shall indemnify Landlord and hold Landlord harmless from any cost,
expense or liability (including costs of suit and reasonable attorney's fees)
for any compensation, commission or fees claimed by any real estate broker or
agent other than the Brokers in connection with this Lease or its negotiation by
reason of any act of Tenant. Landlord shall indemnify and hold Tenant harmless
from any cost, expense or liability (including cost of suit and reasonable
attorney's fees) for any compensation, commission or fee claimed by any real
estate broker or agent other than the Brokers by virtue of its dealing with
Landlord.
In the event of the assertion of any claim for which indemnification is
to be provided by either Landlord or Tenant, as above, the party against whom
the claim is asserted will give the other party prompt written notice thereof
and afford such other party the right to join equally in the defense thereof.
10.16 FORCE MAJEURE. If Landlord or Tenant is prevented or delayed in
its performance of any obligation under this Lease on its part to be performed
by or resulting from an act of God, war, civil commotion, fire or other
casualty, labor difficulties, shortages of labor, materials or equipment,
governmental regulations, act of the other party, or other causes beyond
Landlord's or Tenant's reasonable control (other than financial inability), then
Landlord or Tenant, as applicable, shall be excused from such performance the
period of time during which it is so prevented or delayed and Landlord or Tenant
shall have no liability by reason thereof. With respect to the Term Commencement
Date as defined in Section 3.2.4 above, it is understood and agreed that this
definition of Force Majeure is not intended include acts or circumstances within
the control of Tenant or within the control of its contractors in performing the
Initial Tenant Improvements.
10.17 AUTHORITY. Tenant warrants that it has legal authority to operate
and is authorized to do business in The Commonwealth of Massachusetts. Tenant
also warrants that the person or persons executing this Lease on behalf of
Tenant has or have authority to do so and fully to obligate Tenant to all terms
and provisions of this Lease.
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Landlord warrants that it has legal authority to operate and is
authorized to do business in The Commonwealth of Massachusetts. Landlord also
warrants that the person or persons executing this Lease on behalf of Landlord
has or have authority to do so and fully to obligate Landlord to all terms and
provisions of this Lease.
10.18 PARKING AND LOADING. Landlord shall provide Tenant with Tenant's
Share of Parking Spaces in the area(s) designated by the Landlord at no
additional charge and in common with all other tenants. Tenant's Share of
Parking Spaces shall be undesignated and unassigned. In addition to Tenant's
share of Parking Spaces, Landlord shall designate the spaces shown on EXHIBIT B
attached hereto as visitor parking spaces for the common use of visitors of
tenants in the building at 420 and 430 Boston Post Road. Tenant shall abide by
any and all reasonable parking and loading regulations and rules established by
Landlord or Landlord's parking operator.
10.19 SIGNAGE. Tenant shall be allocated (a) signage space on existing
signage designed to be visible from Route 20 and (b) signage space on the
Building in the amount of eleven square feet. The design and location of all
signage shall be subject to Landlord's prior reasonable approval. Landlord shall
install and maintain all signage, but the cost of installing and maintaining
such signage shall be charged to Tenant on a pro-rata basis. In addition, so
long as there is no Event of Default hereunder, Tenant shall have the right to
one (1) listing on the lobby directory of the Building. The listing of one or
more names of persons other than Tenant on such lobby directory shall not be
construed as a consent by Landlord to an assignment or a subletting by Tenant to
such person or persons.
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10.20 SECURITY DEPOSIT. Tenant agrees that the Security Deposit will be
paid upon execution and delivery of this Lease, and that Landlord shall hold the
same, throughout the term of this Lease, as security for the performance by
Tenant of all obligations on the part of Tenant to be kept and performed.
Landlord shall have the right, from time to time without prejudice to any other
remedy Landlord may have on account thereof, to apply such deposit, or any part
thereof, to Landlord's damages arising from any default on the part of Tenant,
in which event Tenant shall restore the balance of the Security Deposit to the
amount then required hereunder. Tenant not then being in default, Landlord shall
return the Security Deposit (as the same may have been reduced pursuant to this
Section), or so much thereof as shall not have theretofore been applied in
accordance with the terms of this Section, to Tenant on the expiration or
earlier termination of the Term. While Landlord holds such 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 deposit or any part thereof not previously
applied may be turned over by Landlord to Landlord's grantee, and if so turned
over, Tenant agrees to look solely to such grantee for proper application of the
deposit in accordance with the terms of this Section and the return thereof in
accordance herewith. Neither the holder of a mortgage nor the lessor in a ground
lease of property which includes the Premises shall ever be responsible to
Tenant for the return or application of any such deposit, whether or not it
succeeds to the position of Landlord hereunder, unless such deposit shall have
been received in hand by such holder or ground lessor. Notwithstanding the
foregoing, the Security Deposit shall be reduced by one third at the end of the
first Lease Year and by an additional one-half at the end of the second
Lease Year. In addition, Tenant shall have the right to substitute a standby
letter of credit at any time for a cash Security Deposit provided that the same
is in form and substance and issued by a financial institution reasonably
acceptable to Landlord.
10.21 LIMITATION OF LANDLORD'S LIABILITY. It is expressly understood
and agreed by Tenant that none of the Landlord's covenants, undertakings or
agreements are made or intended as personal covenants, undertakings or
agreements by Landlord or its partners or any partners of its partners, and any
liability for damage or breach or nonperformance by Landlord shall be
collectible only out of Landlord's interest in the Building and no personal
liability is assumed by, nor at any time may be asserted against, Landlord or
its partners or any of its or their partners, officers, agents, employees, legal
representatives, successors or assigns, all such liability, if any, being
expressly waived and released by Tenant. The provisions of this Section 10.21
shall expressly be applicable to and inure to the benefit of Landlord's
successors and assigns.
<PAGE>
10.22 RIGHT TO RELOCATE. Notwithstanding anything herein to the
contrary, Landlord shall have the right and power, after the third Lease Year,
to relocate Tenant within the Buildings in space (the "Relocation Space") which
contains at least as many r.s.f. as the space from which Tenant is being moved,
and which is reasonably suited to Tenant's use, provided, however, that (a) the
Relocation Space after such relocation shall include space on contiguous floors,
if the Premises did so prior to the relocation, and (b) such relocation shall
occur no more than once during the Term. Any relocation shall be made at
Landlord's expense, including remodeling or refurbishing the Relocation Space
such that its condition is substantially equivalent to that of Tenant's space
immediately prior to the move. Landlord shall not be liable for any claims,
damages, or liabilities in connection with or occasioned by such relocation.
Landlord's exercise of such right shall include, but not be limited to, a
relocation to consolidate the rentable area occupied to provide Landlord's
services more efficiently, or a relocation to provide contiguous vacant space
for a prospective tenant. Landlord's right shall be exercised by delivery to
Tenant of a "Relocation Notice" specifying the location of the Relocation Space
and the date it will be available for occupancy (the "Relocation Date"), which
date shall not be fewer than sixty (60) days from the date of the Relocation
Notice. Landlord shall, at Landlord's expense (including reimbursement of Tenant
for its reasonable cash expenses attributable to such move, including without
limitation, overtime compensation paid to Tenant's employees in connection with
the move), move Tenant's personal property and trade fixtures into the
Relocation Space as of the Relocation Date. The move shall be accomplished as
expeditiously as possible, without unreasonable interference with Tenant's
business. Any such move shall be accomplished by Landlord in a single integrated
procedure over a weekend, with such procedure not to be commenced unless and
until Tenant's telephone service, computer service, and all other services
required for the proper operation of Tenant's business in the Relocation Space
shall be in place and fully operable to the extent possible so that Tenant may,
on the Monday immediately following the relocation, commence business in as
nearly as possible normal fashion. There shall be no abatement of rent during
the period of the move. Upon Tenant's taking possession of the Relocation Space,
the term "Premises" as used herein shall be deemed to refer to the Relocation
Space, a plan of which shall be used to replace EXHIBIT B.
10.23 REAR ACCESS. Landlord shall build and provide for Tenant's use a
common walkway between the Premises and the loading entrance at the rear of the
Building (the "Rear Entrance"). Landlord shall permit Tenant, at Tenant's cost,
to install a doorbell or other similar device at the Rear Entrance to permit
communication solely between the Rear Entrance and the Premises.
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed, under seal, by persons hereunto duly authorized, as of the date
first set forth above.
LANDLORD:
WAYLAND BUSINESS CENTER, LLC
By: WAYLAND BUSINESS CENTER, INC.,
its Manager
By: /s/ Dean F. Stratouly
---------------------------
Name: Dean F. Stratouly
Title: Manager
TENANT:
MOLDFLOW CORPORATION
By: /s/ Suzanne Rogers
---------------------------
Name: Suzanne Rogers
Title: Chief Financial Officer
<PAGE>
EXHIBIT A
DESCRIPTION OF THE LAND
<PAGE>
EXHIBIT B
PLAN SHOWING THE PREMISES
<PAGE>
EXHIBIT C
DETERMINATION OF FAIR MARKET RENTAL VALUE
In the event the Fair Rental Value of Premises during any Extension
Term must be determined by appraisal, the determination of Fair Rental Value
shall be made:
(i) by an appraiser chosen by agreement between the parties; or
(ii) if the parties shall not agree on an appraiser within thirty
(30) days after the period for agreement on Fair Rental Value
has elapsed, by taking the arithmetic average of the value
assigned by three appraisers, one selected by each of the
parties, and the third selected by agreement of the two
appraisers so selected; provided that, if the appraised value
assigned by any appraiser selected by a party shall be less
than ninety percent (90%), or more than one hundred ten
percent (110%) of the appraised value assigned by the third
appraiser, then such first value shall, for purposes of this
subparagraph, be increased to ninety percent (90%) or
decreased to one hundred ten percent (110%), as applicable, of
the appraised value assigned by such third appraiser. All
appraisers referred to in this Exhibit shall be M.A.I.
appraisers with at least 10 years of experience appraising
commercial real estate in the greater Boston area. The costs
of each appraiser shall be borne by the party appointing him,
or in the case of a third appraiser, shall be shared equally
by the parties. In the event that either party fails to
appoint an appraiser pursuant to this subparagraph within
thirty (30) days after the period for agreement of Fair Rental
Value has elapsed, then the appraiser, if any, appointed by
the other parties shall, acting singularly, make the
determination of Fair Rental Value. If the two appraisers
appointed by the parties do not within a period of fifteen
(15) days after the appointment of the later of them, appoint
a third appraiser willing so to act, then either party may
designate instead that the third appraiser be appointed by the
President of the Greater Boston Real Estate Board or a
successor organization thereto (unless any party or business
associate thereof holds such a position, in which event said
third appraiser shall be appointed by the person holding the
next highest position on said Board who is not a business
associate of any party) and the individual so appointed shall
for all purposes have the same standing and powers as though
he has been seasonably appointed by the appraisers first
appointed. For purposes of the foregoing appraisals, the Fair
Rental Value payable by tenant shall be determined by
increasing the rental payable (determined as of the date of
the appraisers' report) by a percentage equal to the
percentage increase in the consumer price index announced by
the U.S. Department of Labor between the date of the
appraisers' first report and the relevant Available Date, as
it may be adjusted.
<PAGE>
EXHIBIT D
LANDLORD'S SERVICES
1. Landlord shall provide security personnel for the common areas of the
Building 24 hours a day, 365 days per year.
2. Landlord agrees to provide elevator service to the Building 24 hours a
day, 365 days a year. Access to said elevators shall be provided by
Building security in the "off hours."
3. Landlord shall, during normal business hours, furnish heating and
cooling as normal seasonal changes may require to provide reasonably
comfortable space temperature and ventilation for occupants of the
Premises under normal business operation. If Tenant shall require air
conditioning, heating or ventilation outside the hours and days above
specified, Landlord may furnish such service and Tenant shall pay
therefor such charges as may from time to time be in effect for the
Building upon demand as Additional Rent. Such after hours charge for
air conditioning, heating or ventilation is $50.00 per hour as of the
date of this Lease.
4. Landlord shall provide Tenant with hot and cold water for drinking,
lavatory and toilet purposes from regular building supply at reasonable
temperatures. For water furnished for any other purposes, Tenant shall
pay Landlord at the same rates as would have been charged by the Town
of Wayland.
5. Landlord shall (a) keep and maintain in workable condition (including
replacement) the Building's sanitary, electrical, heating, plumbing,
elevator, air conditioning and other systems, (b) provide cleaning
services to the common areas of the Buildings, (c) keep all roadways,
walkways and parking areas of the Land clean and lit, and remove all
snow and ice therefrom, (d) provide light bulbs for the common areas of
the Buildings, and (e) provide grounds maintenance to all landscaped
areas.
6. Landlord agrees to furnish cleaning services as set forth in SCHEDULE
D.1 attached hereto.
For purposes of this Lease, "normal business hours" shall mean:
Monday - Friday 7:00 A.M. - 7:00 P.M.
Saturday 8:00 A.M. - 1:00 P.M.
<PAGE>
SCHEDULE D.1
CLEANING SPECIFICATIONS
See attached.
<PAGE>
EXHIBIT E
RULES AND REGULATIONS
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or
encumbered by any tenant or used for any purpose other than for ingress
to and egress from tenant's space or the Buildings and for delivery of
merchandise and equipment in a prompt and efficient manner using
elevators and passageways designated for such delivery by Landlord.
There shall not be used in any space, or in public hall of the
Buildings either by any tenant or by jobbers, or others in the delivery
or receipt of merchandise, any hand trucks, except those equipped with
rubber and trees and sideguards.
2. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or
constructed and no sweepings, rubbish, rags, acids or other substances
shall be deposited therein, and the expense of any breakage, stoppage,
or damage resulting from the violation of this rule shall be borne by
the tenant who, or whose clerks, agents, employees or visitors, shall
have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the Buildings; and no tenant shall sweep or throw or permit
to be swept or thrown from the tenant's space any dirt or other
substances into any of the corridors or halls, elevators or out of the
doors or windows or stairways of the Buildings, and no tenant shall
use, keep or permit to be used or kept any foul or noxious gas or
substance in the tenant's space, or permit or suffer the tenant's space
to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Buildings by reason of noise, odors
and/or vibrations, or interfere in any way with other Tenants or those
having business therein, nor shall any animals or birds be kept in or
about the Buildings. Smoking or carrying lighted cigars, cigarettes or
pipes in the common areas of the Buildings is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the Buildings without the prior written consent of Landlord, in the
Landlord's sole discretion.
<PAGE>
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any tenant on any part of the outside
of the tenant's space or the Buildings or on the inside of the tenant's
space if the same is visible from the outside of the tenant's space
without the prior written consent of Landlord, except that the name of
a tenant may appear on the entrance door of the tenant's space. In the
event of the violation of the foregoing by any tenant, Landlord may
remove same without any liability, and may charge the expense incurred
by such removal to a tenant or tenants violating this rule. Interior
signs on doors and the directory tablet shall be inscribed, painted or
affixed for each tenant by Landlord at the expense of such tenant, and
shall be of a size, color and style acceptable to landlord.
6. No tenant shall deface any part of the tenant's space or the Buildings.
No boring, cutting or stringing of wires shall be permitted, except
with the prior written consent of Landlord, and as Landlord may direct.
7. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in
existing locks or mechanism thereof. Each tenant must, upon the
termination of his or its tenancy, restore to Landlord all keys of
stores, offices and toilet rooms, either furnished to, or otherwise
procured by such tenant, and in the event of the loss of any keys, so
furnished, such tenant shall pay to Landlord the cost thereof. A tenant
may, however, install its own card access devices or similar security
system so long as Landlord and the property manager are provided with a
reasonable number of access cards or other devices providing for entry
to the tenant's space.
8. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the tenant's
space only on the freight elevators and through the service entrances
and corridors, and only during hours and in a manner approved by
Landlord. Landlord reserves the right to inspect all freight to be
brought into the Buildings and to exclude from the Buildings all
freight which violates any of these Rules and Regulations or the Lease
of which these Rules and Regulations are a part.
9. No tenant shall obtain for use in the tenant's space ice, drinking
water, towel and other similar services, except from persons authorized
by Landlord, and at hours and under regulations fixed by Landlord.
Canvassing, soliciting and peddling in the Buildings is prohibited and
each tenant shall cooperate to prevent the same.
10. Landlord reserves the right to exclude from the Buildings between the
hours of 6 P.M. and 8 A.M. and at all hours on Sundays, and legal
holidays all persons who do not present a pass to the Buildings signed
or validated by Landlord, Landlord will furnish passes to persons for
whom any tenant requires the same in writing. Each Tenant shall be
responsible for all persons for whom he or it requests such pass and
shall be liable to Landlord for an acts of such persons.
11. Landlord shall have the right to prohibit any advertising or practice
by any tenant which, in Landlord's opinion, tends to impair the
reputation of the Buildings or its desirability as a Buildings for
offices, and upon written notice from Landlord, Tenant shall refrain
from or discontinue such advertising or practice.
<PAGE>
12. Except as otherwise expressly provided for in the Lease, no tenant
shall bring or permit to be brought or kept in the tenant's space, any
inflammable, combustible or explosive fluid, material, chemical or
substance, or cause or permit any odors of cooking or other processes,
or any unusual or other objectionable odors to permeate in or emanate
from the tenant's space.
13. Tenant agrees to keep all windows closed at all times and to abide by
all rules and regulations issued by the Landlord with respect to such
services. If a tenant requires air conditioning or ventilation after
hours, the tenant shall give notice in writing to the Building
superintendent prior to 3:00 P.M. in the case of services required on
weekdays, and prior to 3:00 P.M. on the day prior in the case of after
hours service required on weekends or on holidays.
<PAGE>
EXHIBIT F
LIST OF APPROVED CONTRACTORS, ARCHITECTS AND ENGINEERS
ARCHITECT
Sasaki
Design Management
ENGINEERS (MEPs)
Landlord's engineer
Vanderwell Engineering
CONSTRUCTION CONTRACTORS
Landlord's contractor
Integrated Builders
Callahan/Hoffman Construction
Doyle Custom Construction
