EXHIBIT 10.18
Mass Mutual
Office Lease
By And Between
Mass Mutual and
Xxxxxxx Systems U.S., Inc.
For: Suite #500 & #501
Landmark One
0 Xxx xx Xxxxxx Xxxxx
Xxxxxxxxxx, XX
A "Mass Mutual" Property
MM Equity No. 9615
OFFICE LEASE
THIS LEASE, made as of this 15 day of May , 1997 by and between MASSACHUSETTS
MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation ("Landlord") through
its agent CORNERSTONE REAL ESTATE ADVISERS, INC., having an address at Xxx
Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxxx 061032604 and XXXXXXX SYSTEMS
U.S., INC., a Massachusetts company ("Tenant") having its principal office at 00
Xxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.
INDEX
Article Title Page
1 Basic Provisions 2
2 Premises, Term and Commencement Date 4
3 Rent 4
4 Taxes and Operating Expenses 4
5 Landlord's Work, Tenant's Work, Alterations and Additions 6
6 Use 7
7 Services 7
8 Insurance 9
9 Indemnification 9
10 Casualty Damage 10
11 Condemnation 10
12 Repair and Maintenance 11
13 Inspection of Premises 11
14 Surrender of Premises 12
15 Holding Over 12
16 Subletting and Assignment 12
17 Subordination, Attornment and Mortgagee Protection 13
18 Estoppel Certificate 13
19 Defaults 14
20 Remedies of Landlord 14
21 Quiet Enjoyment 15
22 Accord and Satisfaction 15
23 Security Deposit 15
24 Brokerage Commission 16
25 Force Majeure 16
26 Parking 17
27 Hazardous Materials 17
28 Additional Rights Reserved by Landlord 18
29 Defined Terms 19
30 Miscellaneous Provisions 22
31 Special Provisions 25
EXHIBITS
Exhibit A Plan Showing Property and Premises 28
Exhibit B Landlord's Work Letter 29
Exhibit C Tenant's Work 33
Exhibit D Building's Rules and Regulations;Janitorial Specifications 34
Exhibit E Commencement Date Confirmation 37
ARTICLE 1.
BASIC PROVISIONS
A. Tenant's Trade Name: Xxxxxxx Systems U.S., Inc.
B. Tenant's Address: Suite 500 & 501
One Van de Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
C. Office Building Name: Landmark One
Address: Xxx Xxx xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
D. Premises: Suite/Unit No.: 500 & 501
Square feet (Rentable): 12,417 rsf
E. Landlord: Massachusetts Mutual Life Insurance
Company
F. Landlord's Address: c/o Cornerstone Real Estate Advisers,Inc.
000 X. Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
G. Building Manager/Address: Xxxxx Xxxxxx LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
H. Commencement Date: July 15, 1997
I. Expiration Date: July 31, 2002
J. Security Deposit: $49,668.00
K. Monthly Rent: Year l:$24,834.00, Year 2:$25,351.38,
Year 3:$25,868.75, Year 4:$26,386.13,
Year 5:$26,903.50
L. Operating Expenses Base: Actual 1996 Calendar Year
M. Tax Base: Actual 1997 Fiscal Year
N. Tenant's Pro Rata Share: 7.70 %. Tenant's Pro Rata Share shall be
determined by and adjusted by Landlord from time to time (but shall not be
readjusted sooner than the commencement of the second Lease year), by dividing
the Tenant's Rentable Square Feet of the Premises by the rentable area of the
Building and multiplying the resulting quotient, to the second decimal place, by
one hundred.
O. Normal Business Hours of Building:
Monday through Friday: 8:00 a.m. to 6:00 p.m.
Saturday: 8:00 a.m. to 1:00 p.m.
Sunday: N/A am. to N/A p.m.
P. Brokers: Xxxxx Xxxxxx LLC / Xxxxxxxxx & Xxxx
Q. Parking Fee: 41 unreserved spaces at no charge
R. Tenant's Original
Electrical Factor: $.90 per rentable square foot per year
$931.28 per month
$11,175.30 per year
The foregoing provisions shall be interpreted and applied in accordance with the
other provisions of this Lease set forth below. The capitalized terms, and the
terms defined in Article 29, shall have the meanings set forth herein or therein
(unless otherwise modified in the Lease) when used as capitalized terms in other
provisions of the Lease.
ARTICLE 2.
PREMISES, TERM AND COMMENCEMENT DATE
Landlord hereby leases and demises to the Tenant and Tenant hereby takes and
leases from Landlord that certain space identified in Article 1 and shown on a
plan attached hereto as Exhibit A ("Premises") for a term ("Term") commencing on
the Commencement Date and ending on the Expiration Date set forth in Article 1,
unless sooner terminated as provided herein, subject to the provisions herein
contained. The Commencement Date set forth in Article 1 shall be advanced to
such earlier date as Tenant commences occupancy of the Premises for the conduct
of its business. Such date shall be confirmed by execution of the Commencement
Date Confirmation in the form as set forth in Exhibit E. If Landlord delays
delivering possession of the Premises or substantial completion of any
Landlord's Work under Exhibit B, this Lease shall not be void or voidable,
except as provided in Article 5, and Landlord shall have no liability for loss
or damage resulting therefrom.
ARTICLE 3.
RENT
A. Monthly Rent. Tenant shall pay Monthly Rent in advance on or before the first
day of each month of the Term. If the Term shall commence and end on a day other
than the first day of a month, the Monthly Rent for the first and last partial
month shall be prorated on a per diem basis. Upon the execution of this Lease,
Tenant shall pay one installment of Monthly Rent for the first full month of the
Term and a prorated Monthly Rent for any partial month which may precede it.
B. Additional Rent. All costs and expenses which Tenant assumes or agrees to pay
and any other sum payable by Tenant pursuant to this Lease, including, without
limitation, its share of Taxes and Operating Expenses, shall be deemed
Additional Rent.
C. Rent. Monthly Rent, Additional Rent, Taxes and Operating Expenses and any
other amounts which Tenant is or becomes obligated to pay Landlord under this
Lease are herein referred to collectively as "Rent", and all remedies applicable
to the nonpayment of Rent shall be applicable thereto. Landlord may apply
payments received from Tenant to any obligations of Tenant then accrued, without
regard to such obligations as may be designated by Tenant.
D. Place of Payment, Late Charge, Default Interest. Rent and other charges
required to be paid under this Lease, no matter how described, shall be paid by
Tenant to Landlord at the Building Manager's address listed in Article 1, or to
such other person and/or address as Landlord may designate in writing, without
any prior notice or demand therefor and without deduction or set-off or
counterclaim and without relief from any valuation or appraisement laws. In the
event Tenant fails to pay Rent due under this Lease within ten (1O) days of due
date of said Rent, Tenant shall pay to Landlord a late charge of ten percent
(10%) on the amount overdue. Any Rent not paid when due shall also bear interest
at the Default Rate.
ARTICLE 4.
TAXES AND OPERATING EXPENSES
A. Payment of Taxes and Operating Expenses. It is agreed that during each Lease
Year beginning with the first month of the second Lease Year and each month
thereafter during the original Lease Term, or any extension thereof, Tenant
shall pay to Landlord as Additional Rent, at the same time as the Monthly Rent
is paid, an amount equal to one-twelfth (1/12) of Landlord's estimate (as
determined by Landlord in its reasonable discretion)of Tenant's Pro Rata Share
of any projected increase in the Taxes or Operating Expenses for the particular
Lease Year in excess of the Tax Base or Operating Expenses Base, as the case may
be (the "Estimated Escalation Increase"). A final adjustment (the "Escalation
Reconciliation") to be made between the parties as soon as practicable following
the end of each Lease Year, but in no event later than ninety (90) days after
the end of each Lease Year. In computing the Estimated Escalation Increase for
any particular Lease Year, Landlord shall take into account any prior increases
in Tenant's Pro Rata Share of Taxes and Operating Expenses. If during any Lease
Year the Estimated Escalation Increase is less than the Estimated Escalation
Increase for the previous Lease Year on which Tenant's share of Taxes and
Operating Expenses were based for said year, such Additional Rent payments,
attributable to Estimated Escalation Increase, to be paid by Tenant for the new
Lease Year shall be decreased accordingly; provided, however, in no event will
the Rent paid by Tenant hereunder ever be less than the Monthly Rent plus all
other amounts of Additional Rent.
As soon as practicable following the end of each Lease Year,but no later than 90
days following the end of each Lease Year, Landlord shall submit to Tenant a
statement setting forth the Estimated Escalation Increase, if any. Beginning
with said statement for the second Lease Year, it shall also set forth the
Escalation Reconciliation for the Lease Year just completed. To the extent that
the Operating Expense Escalation is different from the Estimated Escalation
Increase upon which Tenant paid Rent during the Lease Year just completed,
Tenant shall pay Landlord the difference in cash within thirty (30) days
following receipt by Tenant of such statement from Landlord, or receive a credit
on future Rent owing hereunder (or cash if there is no future Rent owing
hereunder) as the case may be. Until Tenant receives such statement, Tenant's
Rent for the new Lease Year shall continue to be paid at the rate being paid for
the particular Lease Year just completed, but Tenant shall commence payment to
Landlord of the monthly installment of Additional Rent on the basis of said
statement beginning on the first day of the month following the month in which
Tenant receives such statement. In addition to the above, if, during any
particular Lease Year, there is a change in the information on which Landlord
based the estimate upon which Tenant is then making its estimated payment of
Taxes and Operating Expenses so that such Estimated Escalation Increase
furnished to Tenant is no longer accurate, Landlord shall be permitted to revise
such Estimated Escalation Increase by notifying Tenant, and there shall be such
adjustments made in the Additional Rent on the first day of the month following
the serving of such statement on Tenant as shall be necessary by either
increasing or decreasing, as the case may be, the amount of Additional Rent then
being paid by Tenant for the balance of the Lease Year (but in no event shall
any such decrease result in a reduction of the rent below the Monthly Rent plus
all other amounts of Additional Rent). Landlord's and Tenant's responsibilities
with respect to the Tax and Operating Expense adjustments described herein shall
survive the expiration or early termination of this Lease.
If the Building is not fully occupied during any particular Lease Year,
Landlord may adjust those Operating Expenses which are affected by Building
occupancy for the particular Lease Year, or portion thereof, as the case may be,
to reflect an occupancy of not less than ninety-five percent (95%) of all such
rentable area of the Building.
B. Disputes Over Taxes or Operating Expenses. If Tenant disputes the amount of
an adjustment or the proposed estimated increase or decrease in Taxes or
Operating Expenses, Tenant shall give Landlord written notice of such dispute
within thirty (30) days after Landlord gives notice to Tenant of such adjustment
or proposed increase or decrease. Tenant's failure to give such notice shall
waive its right to dispute the amounts so determined. If Tenant timely objects,
Tenant shall have the right to engage its own accountants ("Tenant's
Accountants") for the purpose of verifying the accuracy of the statement in
dispute, or the reasonableness of the adjustment or estimated increase or
decrease. If Tenant's Accountants determine that an error has been made,
Landlord and Tenant's Accountants shall endeavor to agree upon the matter,
failing which Landlord and Tenant's Accountants shall jointly select an
independent certified public accounting firm (the "Independent Accountant")
which firm shall conclusively determine whether the adjustment or estimated
increase or decrease is reasonable, and if not, what amount is reasonable. Both
parties shall be bound by such determination. If Tenant's Accountants do not
participate in choosing the Independent Accountant within 20 days notice by
Landlord, then Landlord's determination of the adjustment or estimated increase
or decrease shall be conclusively determined to be reasonable and Tenant shall
be bound thereby. All costs incurred by Tenant in obtaining Tenant's Accountants
and the cost of the Independent Accountant shall be paid by Tenant unless
Tenant's Accountants disclose an error, acknowledged by Landlord (or found to
have conclusively occurred by the Independent Accountant), of more than seven
percent (7%) in the computation of the total amount of Taxes or Operating
Expenses as set forth in the statement submitted by Landlord with respect to the
matter in dispute; in which event Landlord shall pay the reasonable costs
incurred by Tenant in obtaining such audits. Tenant shall continue to timely pay
Landlord the amount of the prior year's adjustment and adjusted Additional Rent
determined to be incorrect as aforesaid until the parties have concurred as to
the appropriate adjustment or have deemed to be bound by the determination of
the Independent Accountant in accordance with the preceding terms. Landlord's
delay in submitting, any statement contemplated herein for any Lease Year shall
not affect the provisions of this paragraph, nor constitute a waiver of
Landlord's rights as set forth herein for said Lease Year or any subsequent
Lease Years during the Lease Term or any extensions thereof.
ARTICLE 5.
LANDLORD'S WORK, TENANT'S WORK,
ALTERATIONS AND ADDITIONS
A. Landlord's Work. Landlord shall construct the Premises in accordance with
Landlord's obligations as set forth in the work letter attached hereto as
Exhibit B, and hereinafter referred to as "Landlord's Work." Landlord will
deliver the Premises to Tenant with all of Landlord's Work completed (except for
minor and non-material punch list items which in Landlord's reasonable judgment
will not delay completion of Tenant's Work, as defined in subparagraph B of this
Article) on or before the date specified in Exhibit B and Tenant agrees
thereupon to commence and complete Tenant's Work on or before the Commencement
Date. If Landlord is delayed in completing Landlord's Work by strike, shortages
of labor or materials, delivery delays or other matters beyond the reasonable
control of Landlord, then Landlord shall give notice thereof to Tenant and the
date on which Landlord is to turn the Premises over to Tenant for Tenant's Work
and the Commencement Date shall be postponed for an equal number of days as the
delay as set forth in the notice. Providing, however, if such delays exceed one
hundred and twenty (120) days, then either Landlord or Tenant upon notice to the
other shall have the right to terminate this Lease without liability to either
party. If the Commencement Date is postponed as aforesaid, Tenant agrees upon
request of Landlord to execute a writing confirming the Commencement Date on
such form as set forth in Exhibit E attached hereto.
B. Tenant's Work. On and after the date specified in the immediately preceding
subparagraph A for delivery of the Premises to Tenant for Tenant's Work, Tenant,
at its sole cost and expense, shall perform and complete all other improvements
to the Premises (herein called "Tenant's Work") including, but not limited to,
all improvements, work and requirements required of Tenant under the foregoing
work letter. Tenant shall complete all of Tenant's Work in good and workmanlike
manner, fully paid for and free from liens, in accordance with the plans and
specifications approved by Landlord and Tenant as provided in Exhibit C, on or
prior to the scheduled Commencement Date. Tenant shall also have the right
during this period to come onto the Premises to install its fixtures and prepare
the Premises for the operation of Tenant's business. Notwithstanding the fact
that foregoing activities by Tenant will occur prior to the scheduled
Commencement Date, Tenant agrees that all of Tenant's obligations provided for
in this Lease shall apply during such period with the exception of any
obligation to pay Rent.
C. Alterations. Except as provided in the immediately preceding subparagraph,
Tenant shall make no structural alterations or additions to the Premises in
excess of $10,000.00 without the prior written consent of the Landlord, which
consent Landlord shall not unreasonably withhold or delay.
D. Liens. Tenant shall give Landlord at least ten (10) days prior written notice
(or such additional time as may be necessary under applicable laws) of the
commencement of any Tenant's Work, to afford Landlord the opportunity of posting
and recording notices of non-responsibility. Tenant will not cause or permit any
mechanic's, materialman's or similar liens or encumbrances to be filed or exist
against the Premises or the Building or Tenant's interest in this Lease in
connection with work done under this Article or in connection with any other
work. Tenant shall remove any such lien or encumbrance by bond or otherwise
within twenty (20) days from the date Tenant receives notice of their existence.
If Tenant falls to do so, Landlord may pay the amount or take such other action
as Landlord deems necessary to remove any such lien or encumbrance, without
being responsible to investigate the validity thereof. The amounts so paid and
costs incurred by Landlord shall be deemed Additional Rent under this Lease and
payable in full upon demand.
E. Compliance with ADA. Notwithstanding anything to the contrary contained in
this Lease, Landlord and Tenant agree that responsibility for compliance with
the Americans With Disabilities Act of 1990 (the "ADA") shall be allocated as
follows: (i) Landlord shall be responsible for compliance with the provisions of
Title III of the ADA for all Common Areas, including exterior and interior areas
of the Building not included within the Premises or the premises of other
tenants; (ii) Landlord shall be responsible for compliance with the provisions
of Title III of the ADA for any construction, renovations, alterations and
repairs made within the Premises if such construction, renovations, alterations
or repairs are made by Landlord (iii) Tenant shall be responsible for compliance
with the provisions of Title III of the ADA for any construction, renovations,
alterations and repairs made within the Premises if such construction,
renovations, alterations and repairs are made by Tenant, its employees, agents
or contractors, at Tenant's expense or at the direction of Tenant.
ARTICLE 6.
USE
A. Use. Tenant shall use the Premises for general office purposes and related
uses, and for no other purpose whatsoever, subject to and in compliance with all
other provisions of this Lease, including, without limitation the Building's
Rules and Regulations attached as Exhibit D hereto. Tenant and its invitees
shall also have the non-exclusive right, along with other tenants of the
Building and others authorized by Landlord, to use the Common Areas subject to
such reasonable rules and regulations as Landlord in its discretion may impose
from time to time.
B. Restrictions. Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy, the Premises or do or permit anything to be done in the
Premises which: (a) causes or is liable to cause injury to persons, to the
Building or its equipment, facilities or systems; (b) impairs or tends to impair
the character, reputation or appearance of the Building as a first class office
building; (c) impairs or tends to impair the proper and economic maintenance,
operation and repair of the Building or its equipment, facilities or systems; or
(d) annoys or inconveniences or tends to annoy or inconvenience other tenants or
occupants of the Building
C. Compliance with Laws. Tenant shall keep and maintain the Premises, its use
thereof and its business in compliance with all governmental laws, ordinances,
rules and regulations. Tenant shall comply with all Laws relating to the
Premises and Tenant's use thereof, including without limitation, Laws in
connection with the health, safety and building codes, and any permit or license
requirements. Landlord makes no representation that the Premises are suitable
for Tenant's purposes.
ARTICLE 7.
SERVICES
A. Climate Control. Landlord shall furnish heat or air conditioning to the
Premises during Normal Business Hours of Building as set forth in Article 1 as
required in Landlord's reasonable judgment for the comfortable use and
occupation of the Premises consistent with standards for other first-class
office buildings.If Tenant requires heat or air conditioning at any other time,
Landlord shall use reasonable efforts to furnish such service upon reasonable
notice from Tenant, and Tenant shall pay all of Landlord's reasonable charges
therefor within 15 days of invoice.
The performance by Landlord of its obligations under this Article is subject to
Tenant's compliance with the terms of this Lease including any connected
electrical load established by Landlord. Tenant shall not use the Premises or
any part thereof in a manner exceeding the heating, ventilating or
air-conditioning ("HVAC") design conditions (including any occupancy or
connected electrical load conditions), including the rearrangement of
partitioning which may interfere with the normal operation of the HVAC
equipment, or the use of computer or data processing machines or other machines
or equipment in excess of that normally required for a standard office use of
the Premises. If any such use requires changes in the HVAC or plumbing systems
or controls servicing the Premises or portions thereof in order to provide
comfortable occupancy, such changes may be made by Landlord at Tenant's expense
and Tenant agrees to promptly pay any such amount to Landlord as Additional
Rent.
B. Elevator Service. If the Building is equipped with elevators, Landlord,
during Normal Business Hours of Building, shall furnish elevator service to
Tenant to be used in common with others. At least one elevator shall remain in
service during all other hours. Landlord may designate a specific elevator for
use as a service elevator.
C. Janitorial Services. Landlord shall provide janitorial and cleaning services
to the Premises, substantially as described in Exhibit D attached hereto. Tenant
shall pay to Landlord on demand the reasonable costs incurred by Landlord for
(i) any cleaning of the Premises in excess of the specifications in Exhibit D
for any reason including, without limitation, cleaning required because of (A)
misuse or neglect on the part of Tenant or Tenant's agents, contractors,
invitees, employees and customers, (B) the use of portions of the Premises for
special purposes requiring greater or more difficult cleaning work than office
areas, (C) interior glass partitions or unusual quantities of interior glass
surfaces, and (D) non-building standard materials or finishes installed by
Tenant or at its request; and (ii) removal from the Premises of any refuse and
rubbish of Tenant in excess of that ordinarily accumulated in general office
occupancy or at times other than Landlord's standard cleaning times.
D. Water and Electricity. Landlord shall make available domestic water in
reasonable quantities to the common areas of the Building (and to the Premises
if so designated in Exhibit B) and cause electric service sufficient for
lighting the Premises and for the operation of Ordinary Office Equipment.
"Ordinary Office Equipment" shall mean office equipment wired for 120 volt
electric service and rated and using less than 6 amperes or 750 xxxxx of
electric current or other office equipment approved by Landlord in writing, such
approval not to be unreasonably withheld or delayed. Landlord shall have the
exclusive right to make any replacement of lamps, fluorescent tubes and lamp
ballasts in the Premises. Landlord may adopt a system of revamping and ballast
replacement periodically on a group basis in accordance with good management
practice. Tenant's use of electric energy in the Premises shall not at any time
exceed the capacity of any of the risers, piping, electrical conductors and
other equipment in or serving the Premises. In order to insure that such
capacity is not exceeded and to avert any possible adverse effect upon the
Building's electric system, Tenant shall not, without Landlord's prior written
consent in each instance*, connect appliances or heavy duty equipment, other
than ordinary office equipment, to the Building's electric system or make any
alteration or addition to the Building's electric system. Should Landlord grant
its consent in writing, all additional risers, piping and electrical conductors
or other equipment therefor shall be provided by Landlord and the cost thereof
shall be paid by Tenant within 15 days of Landlord's demand therefor. As a
condition to granting such consent, Landlord may require Tenant to agree to an
increase in Monthly Rent to offset the expected cost to Landlord of such
additional service, that is, the cost of the additional electric energy to be
made available to Tenant based upon the estimated additional capacity of such
additional risers, piping and electrical conductors or other equipment. If
Landlord and Tenant cannot agree thereon, such cost shall be determined by an
independent electrical engineer, to be selected by Landlord and paid equally by
both parties.
E. Separate Meters. If the Premises are separately metered for any utility,
Tenant shall pay a utility charge to Landlord (or directly to the utility
company, if possible) based upon the Tenant's actual consumption as measured by
the meter. Landlord also reserves the right to install separate meters for the
Premises to register the usage of all or any one of the utilities and in such
event Tenant shall pay for the cost of utility usage as metered to the Premises
and which is in excess of the usage reasonably anticipated by Landlord for
normal office usage of the Premises. Tenant shall reimburse Landlord for the
cost of installation of meters if Tenant's actual usage exceeds the anticipated
usage level by more than 10 percent. In any event, Landlord may require Tenant
to reduce its consumption to the anticipated usage level. The term "utility" for
purposes hereof may refer to but is not limited to electricity, gas, water,
sewer, steam, fire protection system, telephone or other communication or alarm
service, as well as HVAC, and all taxes or other charges thereon.
F. Interruptions. Landlord does not warrant that any of the services referred to
above, or any other services which Landlord may supply, will be free from
interruption and Tenant acknowledges that any one or more of such services may
be suspended by reason of accident, repairs, inspections, alterations or
improvements necessary to be made, or by strikes or lockouts, or by reason of
operation of law, or causes beyond the reasonable control of Landlord. Any
interruption or discontinuance of service shall not be deemed an eviction or
disturbance of Tenant's use and possession of the Premises, or any part thereof,
nor render Landlord liable to Tenant for damages by abatement of the Rent or
otherwise, nor relieve Tenant from performance of Tenant's obligations under
this Lease. Landlord shall however, exercise reasonable diligence to restore any
service so interrupted and will use reasonable efforts to minimize
interference with conduct of Tenant's business in the Premises, and provide
notice when practicable.
G. Utilities Provided by Tenant. Tenant shall make application in Tenant's own
name for all utilities not provided by Landlord and shall: (i) comply with all
utility company regulations for such utilities, including requirements for the
installation of meters, and (ii) obtain such utilities directly from, and pay
for the same when due directly to, the applicable utility company. The term
"utilities" for purposes hereof shall include but not be limited to electricity,
gas, water, sewer, steam, fire protection, telephone and other communication and
alarm services, as well as HVAC, and all taxes or other charges thereon. Tenant
shall install and connect all equipment and lines required to supply such
utilities to the extent not already available at or serving the Premises, or at
Landlord's option shall repair, alter or replace any such existing items. Tenant
shall maintain, repair and replace all such items, operate the same, and keep
the same in good working order and condition. Tenant shall not install any
equipment or fixtures, or use the same, so as to exceed the safe and lawful
capacity of any utility equipment or lines serving the same. The installation
alteration, replacement or connection of any utility equipment and lines shall
be subject to the requirements for alterations of the Premises set forth in
Article 5. Tenant shall ensure that all Tenant's HVAC equipment, is installed
and operated at all times in a manner to prevent roof leaks, damage, or noise
due to vibrations or improper installation, maintenance or operation.
ARTICLE 8.
INSURANCE
A. Required Insurance. Tenant shall maintain insurance policies, with
responsible companies licensed to do business in the state where the Building is
located and reasonably satisfactory to Landlord, naming Landlord, Landlord's
Building Manager, Cornerstone Real Estate Advisers, Inc., Tenant and any
Mortgagee of Landlord of which Tenant is given notice ,as their respective
interests may appear, at its own cost and expense including (i) "all risk"
property insurance which shall be primary on the lease improvements referenced
in Article 5 and Tenant's property, including its goods, equipment and
inventory, in an amount adequate to cover their replacement cost; (ii) business
interruption insurance, (iii) comprehensive general liability insurance on an
occurrence basis with limits of liability in an amount not less than $1,000,000
(One Million Dollars) combined single limit for each occurrence. The
comprehensive general liability policy shall include contractual liability which
includes the provisions of Article 9 herein.
On or before the Commencement Date of the Lease, Tenant shall furnish to
Landlord and its Building, Manager, certificates of insurance evidencing the
aforesaid insurance coverage, including naming, Landlord, Cornerstone Real
Estate Advisers, Inc. and Landlord's Building Manager as additional insureds.
Renewal certificates must be furnished to Landlord at least thirty (30) days
prior to the expiration date of such insurance policies showing the above
coverage to be in full force and effect.
All such insurance shall provide that it cannot be canceled except upon thirty
(30) days prior written notice to Landlord. Tenant shall comply with all rules
and directives of any insurance board, company or agency determining rates of
hazard coverage for the Premises, including but not limited to the installation
of any equipment and/or the correction of any, condition necessary to prevent
any increase in such rates, unless the same constitutes Landlord s obligation
under the Lease, including without limitation, Article 12.
B. Waiver of Subrogation. Landlord and Tenant each agree that neither Landlord
nor Tenant will have any claim against the other for any loss, damage or injury
which is covered by insurance carried by either party and for which recovery
from such insurer is made, notwithstanding the negligence of either party in
causing the loss. This release shall be valid only if the insurance policy in
question permits waiver of subrogation or if the insurer agrees in writing that
such waiver of subrogation will not affect coverage under said policy. Each
party agrees to use its best efforts to obtain such an agreement from its
insurer if the policy does not expressly permit a waiver of subrogation.
C. Waiver of Claims. Except for claims arising from Landlord's willful
misconduct that are not covered by Tenant's insurance required hereunder, Tenant
waives all claims against Landlord for injury or death to persons, damage to
property or to any other interest of Tenant sustained by Tenant or any party
claiming, through Tenant resulting from: (i) any occurrence in or upon the
Premises, (ii) leaking of roofs, bursting, stoppage or leaking of water, gas,
sewer or steam pipes or equipment, including sprinklers, (iii) wind, rain, snow,
ice, flooding, freezing, fire, explosion, earthquake, excessive heat or cold, or
other casualty, (iv) the Building, Premises, or the operating and mechanical
systems or equipment of the Building, being defective, or failing, and (v)
vandalism, malicious mischief, theft or other acts or omissions of any other
parties including without limitation, other tenants, contractors and invitees at
the Building. Tenant agrees that Tenant's property loss risks shall be borne by
its insurance, and Tenant agrees to look solely to and seek recovery only from
its insurance carriers in the event of such losses. For purposes hereof, any
deductible amount shall be treated as though it were recoverable under such
policies. see ARTICLE 8.D, page 9a
ARTICLE 9.
INDEMNlFICATION
Tenant shall indemnify and hold harmless Landlord and its agents, successors and
assigns, including its Building Manager, from and against all injury, loss,
costs, expenses, claims or damage (including reasonable attorney's fees and
ARTICLE 8. INSURANCE new paragraph D.
Landlord shall procure and maintain throughout the term of the Lease a policy or
policies of commercial property insurance, issued on an "all risk" basis
insuring the full replacement cost of the Building and improvements thereto and
the value of the improvements to the Premises together with the furniture,
equipment, supplies and other property owned, leased, held or used by Landlord
in connection with the operation and maintenance of the Building, and xxxxxxx'x
compensation insurance as required by applicable law. Landlord shall also
procure and maintain throughout the term of the Lease a policy or policies of
commercial general liability insurance written on an occurrence basis and
insuring Landlord against any and all liability for injury or death of person or
persons and for damage to property occasioned by or arising out of any
construction being done on the Building, (except in the Premises) or arising out
of the condition, use or occupancy of the Building, or in any way occasioned by
or arising out of the activities of Landlord, its agents, contractors,
employees, guests or licensees in the Building, the limits of such policy or
policies to be in combined single limits for both damaged property and personal
liability in amounts not less than Five Million dollars for each occurrence.
Landlord shall also carry such other types of insurance in form and amount which
shall be comparable to those carried by other landlords comparable office
buildings in the Burlington office market. All insurance policies procured and
maintained by Landlord shall be carried with companies licensed to do business
in the State of Massachusetts and shall be non-cancelable and not subject to
material change as to required amounts of coverage.
disbursements) to any person or property arising from, related to, or in
connection with any use or occupancy of the Premises by or any act or omission
(including, without limitation, construction and repair of the Premises arising
out of Tenant's Work or subsequent work) of Tenant, its agents, contractors,
employees, customers, and invitees, which indemnity extends to any and all
claims arising from any breach or default in the performance of any obligation
on Tenant's part to be performed under the terms of this Lease. This
indemnification shall survive the expiration or termination of the Lease Term.
Landlord shall not be liable to Tenant for any damage by or from any act or
negligence of any co-tenant or other occupant of the Building, or by any owner
or occupants of adjoining or contiguous property. Landlord shall not be liable
for any injury or damage to persons or property resulting in whole or in part
from the criminal activities or willful misconduct of others. To the extent not
covered by all risk property insurance, Tenant agrees to pay for all damage to
the Building, as well as all damage to persons or property of other tenants or
occupants thereof, caused by the negligence, fraud or willful misconduct of
Tenant or any of its agents, contractors, employees, customers and invitees.
Nothing contained herein shall be construed to relieve Landlord from liability
for any personal injury resulting from its gross negligence, fraud or willful
misconduct.
ARTICLE 10.
CASUALTY DAMAGE
Tenant shall promptly notify Landlord or the Building Manager of any fire or
other casualty to the Premises or to the extent it knows of damage, to the
Building. In the event the Premises or any substantial part of the Building is
wholly or partially damaged or destroyed by fire or other casualty which is
covered by Landlord's insurance, the Landlord will proceed to restore the same
to substantially the same condition existing, immediately prior to such damage
or destruction unless such damage or destruction is incapable of repair or
restoration within, one hundred eighty (180) days, in which event Landlord or
tenant may, at their option and by written notice given to the other within
sixty (60) days of such damage or destruction, declare this Lease terminated as
of the happening of such damage or destruction. If in Landlord's reasonable
opinion the net insurance proceeds recovered by reason of the damage or
destruction will not be adequate to complete the restoration of the Building,
Landlord shall have the fight to terminate this Lease and all unaccrued
obligations of the parties hereto by sending a notice of such termination to
Tenant. To the extent after fire or other casualty that Tenant shall be deprived
of the use and occupancy of the Premises or any portion thereof as a result of
any such damage, destruction or the repair thereof, providing Tenant did not
cause the fire or other casualty, Tenant shall be relieved of the same ratable
portion of the Monthly Rent hereunder as the amount of damaged or useless space
in the Premises bears to the rentable square footage of the Premises until such
time as the Premises may be restored.* Landlord shall reasonably determine the
amount of damaged or useless space and the square footage of the Premises
referenced in the prior sentence. Provided if as a result of partial damage or
restriction, in access to Building or elimination of parking, Tenant cannot
reasonably use the Premises, Tenant shall be relieved of the Monthly Rent
hereunder until repairs to the Premises are completed.
ARTICLE 11.
CONDEMNATION
In the event of a condemnation or taking of the entire Premises by a public or
quasi-public authority, this Lease shall terminate as of the date title vests in
the public or quasi-public authority. In the event of a taking, or condemnation
of fifteen percent (15%) or more (but less than the whole) of the Building and
without regard to whether the Premises are part of such taking, or condemnation,
Landlord may elect to terminate this Lease by giving notice to Tenant within
sixty (60) days of Landlord receiving notice of such condemnation. All
compensation awarded for any condemnation shall be the property of Landlord,
whether such damages shall be awarded as a compensation for diminution in the
value of the leasehold or to the fee of the Premises, and Tenant hereby assigns
to Landlord all of Tenant's right, title and interest in and to any and all such
compensation. Providing, however that in the event this Lease is terminated,
Tenant shall be entitled to make a separate claim for the taking of Tenant's
personal property (including, fixtures paid for by Tenant), and for costs of
moving. Notwithstanding anything herein to the contrary, any condemnation award
to Tenant shall be available only to the extent such award is payable separately
to Tenant and does not diminish the award available to Landlord or any Lender of
Landlord.
ARTICLE 12.
REPAIR AND MAINTENANCE
A. Tenant's Obligations. Tenant shall keep the Premises in good working order,
repair (and in compliance with all Laws now or hereafter adopted) and condition
(which condition shall be neat, clean and sanitary, and free of pests and
rodents) and shall make all necessary non-structural repairs thereto and any
repairs to non-Building standard mechanical, HVAC, electrical and plumbing
systems or components in or serving the Premises. Tenant's obligations hereunder
shall include but not be limited to Tenant's trade fixtures and equipment,
security systems, signs, interior decorations, floor-coverings, wall-coverings,
entry and interior doors, interior glass, light fixtures and bulbs, keys and
locks, and alterations to the Premises whether installed by Tenant or Landlord.
B. Landlord's Obligations. Landlord shall make all necessary structural repairs
to the Building, and any necessary repairs or maintenance to the Building
standard mechanical, HVAC, electrical, and plumbing systems in or servicing the
Common Areas or the Premises (the cost of which shall be included in Operating,
Expenses under Article 4), excluding repairs required to be made by Tenant
pursuant to this Article. Landlord shall have no responsibility to make any
repairs unless and until Landlord receives written notice of the need for such
repair. Landlord shall not be liable for any failure to make repairs or to
perform any maintenance unless such failure shall persist for an unreasonable
time after written notice of the need for such repairs or maintenance is
received by landlord from Tenant. Landlord shall make every reasonable effort to
perform all such repairs or maintenance in a reasonable period of time and in
such a manner (in its judgment) so as to cause minimum interference with Tenant
and the Premises but Landlord shall not be liable to Tenant for any interruption
or loss of business pertaining to such activities. Landlord shall have the right
to require that any damage caused by the willful misconduct of Tenant or any of
Tenant's agents, contractors, employees, invitees or customers, be paid for and
performed by the Tenant (without limiting, Landlord's other remedies herein).
C. Signs and Obstructions. Tenant shall not obstruct or permit the obstruction
of light, halls, Common Areas, roofs, parapets, stairways or entrances to the
Building or the Premises and will not affix, paint, erect or inscribe any sign,
projection, awning, signal or advertisement of any kind to any part of the
Building or the Premises, including the inside or outside of the windows or
doors, without the written consent of Landlord. Landlord shall have the right to
withdraw such consent at any time and to require Tenant to remove any sign,
projection, awning, signal or advertisement to be affixed to the Building or the
Premises. If such work is done by Tenant through any person, firm or corporation
not designated by Landlord, or without the express written consent of Landlord,
Landlord shall have the right to remove such signs, projections, awnings,
signals or advertisements without being liable to the Tenant by reason thereof
and to charge the cost of such removal to Tenant as Additional Rent, payable
within ten (10) days of Landlord's demand therefor.
D. Outside Services. Tenant shall not permit, except by Landlord or a person or
company reasonably satisfactory to and approved by Landlord which approved shall
not be unreasonably withheld or delayed. (i) the extermination of vermin in, on
or about the Premises; (ii) the servicing, of heating, ventilating and air
conditioning equipment; (iii) the collection of rubbish and trash other than in
compliance with local government health requirements and in accordance with the
rules and regulations established by Landlord, which shall minimally provide
that Tenant's rubbish and trash shall be kept in containers located so as not to
be visible to members of the public and in a sanitary and neat condition; or
(iv) window cleaning, janitorial services or similar work in the Premises.
ARTICLE 13.
INSPECTION OF PREMISES
Tenant shall permit the Landlord, the Building Manager and its authorized
representatives to enter the Premises to show the Premises to prospective
tenants during the last 6 months of the Term and to prospective buyers
throughout the Term during Normal Business Hours of Building after notice to
Tenant and at other reasonable times to inspect the Premises and to make such
repairs, improvements, alterations or additions in the Premises or in the
Building, of which they are a part as Landlord may deem necessary or appropriate
after notice to Tenant except in an emergency.
ARTICLE 14.
SURRENDER OF PREMISES
Upon the expiration of the Term, or sooner termination of the Lease, Tenant
shall quit and surrender to Landlord the Premises, broom clean, in good order
and condition, normal wear and tear and damage by fire and other casualty
excepted. All leasehold improvements and other fixtures, such as light fixtures
and HVAC equipment, wall coverings, carpeting and drapes, in or serving the
Premises, whether installed by Tenant or Landlord, shall be Landlord's property
and shall remain, all without compensation, allowance or credit to Tenant. Any
property not removed shall be deemed to have been abandoned by Tenant and may be
retained or disposed of by Landlord at Tenant's expense free of any and all
claims of Tenant, as Landlord shall desire. All property not removed from the
Premises by Tenant may be handled or stored by Landlord at Tenant's expense and
Landlord shall not be liable for the value, preservation or safekeeping thereof.
At Landlord's option all or part of such property may be conclusively deemed to
have been conveyed by Tenant to Landlord as if by xxxx of sale without payment
by Landlord. The Tenant hereby waives to the maximum extent allowable the
benefit of all laws now or hereafter in force in this state or elsewhere
exempting property from liability for rent or for debt.
ARTICLE 15.
HOLDING OVER
Tenant shall pay Landlord 150% of the amount of Rent then applicable prorated on
a per diem basis for each day Tenant shall retain possession of the Premises or
any part thereof after expiration or earlier termination of this Lease, together
with all actual damages sustained by Landlord on account thereof. The foregoing
provisions shall not serve as permission for Tenant to hold-over, nor serve to
extend the Term (although Tenant shall remain bound to comply with all
provisions of this Lease until Tenant vacates the Premises) and Landlord shall
have the right at any time thereafter to enter and possess the Premises and
remove all property and persons therefrom.
ARTICLE 16.
SUBLETTING AND ASSIGNMENT
Tenant shall not, without the prior written consent of Landlord which consent
shall not be unreasonably withheld or delayed, list the Premises or any part
thereof as available for assignment or sublease with any broker or agent or
otherwise advertise, post, communicate or solicit prospective assignees or
subtenants through any direct or indirect means, nor assign this Lease or any
interest thereunder, or sublet Premises or any part thereof, or permit the use
of Premises by any party other than Tenant. In the event that during the term of
this Lease, Tenant desires to sublease or assign and introduces Landlord to a
proposed replacement tenant for Tenant for all or a portion of the Premises,
which replacement tenant has a good reputation, is of financial strength at
least equal to that of Tenant (as determined by Landlord in its reasonable
discretion) and has a use for Premises and a number of employees reasonably
consistent with that of Tenant's operation, the Landlord may consider such
replacement tenant and notify Tenant with reasonable promptness as to Landlord's
choice, at Landlord's sole discretion, of the following:
(1) That Landlord consents to a subleasing of the Premises or assignment of the
lease to such replacement tenant provided that Tenant shall remain fully liable
for all of its obligations and liabilities under this Lease and provided further
that Landlord shall be entitled to 50% of any profit obtained by Tenant from
such subletting or assignment after Tenant's reasonable pre-approved expenses
incurred in such subletting or;
(2) In the case of an assignment that upon such replacement tenant's entering
into a mutually satisfactory new Lease for the Premises with Landlord, then
Tenant shall be released from all further obligations and liabilities under this
Lease (excepting, only any unpaid rentals or any unperformed covenants then past
due under this Lease or any guarantee by Tenant of replacement tenant's
obligations); or
(3) That Landlord declines to consent to such sublease or assignment due to
insufficient or unsatisfactory documentation furnished to Landlord to establish
Tenant's reputation, financial strength and proposed use of and operations upon
Premises; or
(4) That Landlord elects to cancel the Lease and recapture the Premises (in the
case of an assignment) or that Landlord elects to cancel the Lease as to
the portion thereof that Tenant had wished to sublease. In either such
event Tenant shall surrender possession of the Premises, or the portion
thereof which is the subject of Tenant's request on the date set forth in a
notice from Landlord in accordance with the provisions of this lease
relating to the surrender of the Premises. If this Lease shall be canceled
as to a portion of the Premises only, the Rent payable by Tenant hereunder
shall be abated proportionately according to the ratio that the area of the
portion of the Premises surrendered (as computed by Landlord) bears to the
area of the Premises immediately prior to such surrender. If Landlord shall
cancel this Lease, Landlord may relet the Premises, or the applicable
portion of the Premises, to any other party (including, without limitation,
the proposed assignee or subtenant of Tenant), without any liability to
Tenant.
Notwithstanding anything to the contrary contained herein, Tenant shall have the
right at any time during the term of this Lease to assign this Lease or sublet
all or any portion of the Premises to any entity (i) owned or controlled by
Tenant or which shall hold a majority of Tenant's stock or which is under common
ownership or control with Tenant; (ii) which is the result of any merger,
consolidation or reorganization of Tenant; or (iii) which shall purchase
substantially all of the assets of Tenant (collectively, "Business Assignment")
provided that any such entity assumes the obligations of Tenant under the Lease
in writing and a copy thereof is promptly delivered to Landlord.
Except in the case of a Business Assignment, in no event may Tenant assign any
options to sublessee(s) or assignee(s) hereunder, all such options being deemed
personal to XXXXXXX SYSTEMS U.S., INC. only. Consent by Landlord hereunder shall
in no way operate as a waiver by Landlord of, or to release or discharge Tenant
from, any liability under this Lease or be construed to relieve Tenant from
obtaining Landlord's consent to any subsequent assignment, subletting, transfer,
use or occupancy.
ARTICLE 17.
SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION
This Lease is subject and subordinate to all Mortgages now or hereafter placed
upon the Building, and all other encumbrances and matters of public record
applicable to the Building including without limitation, any reciprocal easement
or operating, agreements, covenants, conditions and restrictions and Tenant
shall not act or permit the Premises to be operated in violation thereof. If any
foreclosure or power of sale proceedings are initiated by any Lender or a deed
in lieu is granted (or if any ground lease is terminated), Tenant agrees, upon
written request of any such Lender or any purchaser at such foreclosure sale, to
attorn and pay Rent to such party and to execute and deliver any instruments
necessary or appropriate to evidence or effectuate such attornment. In the event
of attornment, no Lender shall be: (i) liable for any act or omission of
Landlord, or subject to any offsets or defenses which Tenant might have against
Landlord (prior to such Lender becoming Landlord under such attornment), (ii)
liable for any security deposit not actually received by such Lender or bound by
any prepaid Rent not actually received by such Lender, or (iii) bound by any
future modification of this Lease amending any material business term hereof,not
consented to by such Lender. Any Lender may elect to make this Lease prior to
the lien of its Mortgage, and if the Lender under any prior Mortgage shall
require, this Lease shall be prior to any subordinate Mortgage; such elections
shall be effective upon written notice to Tenant. Tenant agrees to give any
Lender by certified mail, return receipt requested, a copy of any notice of
default served by Tenant upon Landlord, provided that prior to such notice
Tenant has been notified in writing, (by way of service on Tenant of a copy of
an assignment of leases, or otherwise) of the name and address of such Lender.
Tenant further agrees that if Landlord shall have failed to cure such default
within the time permitted Landlord for cure under this Lease, any such Lender
whose address has been so provided to Tenant shall have an additional period of
thirty (30) days in which to cure (or such additional time as may be required
due to causes beyond such Lender's control, including time to obtain possession
of the Building, by power of sale or judicial action or deed in lieu of
foreclosure so long as Lender diligently pursues such cure). The provisions of
this Article shall be self-operative; however, Tenant shall execute such
documentation as Landlord or any Lender may request from time to time in order
to confirm the matters set forth in this Article in recordable form. To the
extent not expressly prohibited by Law, Tenant waives the provisions of any Law
now or hereafter adopted which may give or purport to give Tenant any right or
election to terminate or otherwise adversely affect this Lease or Tenant's
obligations hereunder if such foreclosure or power of sale proceedings are
initiated, prosecuted or completed.
ARTICLE 18.
ESTOPPEL CERTIFICATE
Tenant or Landlord shall from time to time, upon written request by the other or
Lender, deliver to the other or Lender, within fifteen (15) days after from
receipt of such request, a statement in writing certifying: (i) that this Lease
is unmodified and in full force and effect (or if there have been modifications,
identifying such modifications and certifying that the Lease, as modified, is in
full force and effect); (ii) the dates to which the Rent has been paid; (iii)
that Landlord is not in default under any provision of this Lease (or if
Landlord is in default, specifying each such default); and,
Notwithstanding the above, Landlord agrees that as an express condition of
Tenant's subordination, Landlord shall obtain from the applicable Lender, a
written subordination and non-disturbance agreement for the benefit of Tenant.
Said subordination and non-disturbance agreement shall be in the Lender's
standard form and shall provide, among other provisions, that so long as this
Lease shall be in full force and effect that in the event it should become
necessary to foreclose the Mortgage, the Lender thereunder will not join the
Tenant in summary or foreclosure proceedings or otherwise interrupt Tenant's
quiet use, enjoyment, or possession of the Premises pursuant to the Lease, so
long as the Tenant is not in default under any of the terms, covenants or
conditions of the Lease.
(iv) the address to which notices to Tenant shall be sent; it being understood
that any such statement so delivered may be relied upon in connection with any
lease, mortgage or transfer.
Tenant's failure to deliver such statement within such time shall be conclusive
upon Tenant that: (i) this Lease is in full force and effect and not modified
except as Landlord may represent; (ii) not more than one month's Rent has been
paid in advance; (iii) there are no defaults by Landlord; and, (iv) notices to
Tenant shall be sent to Tenant's Address as set forth in Article 1 of this
Lease. Notwithstanding, the presumptions of this Article, Tenant shall not be
relieved of its obligation to deliver said statement.
ARTICLE 19.
DEFAULTS
If Tenant: (i) fails to pay when due any instalment or other payment of Rent for
more than 10 days after notice but in no event more than 2 times in any 12 month
period or to keep in effect any insurance required to be maintained; or (ii)
vacates or abandons the Premises without providing Landlord with at least 30
days' prior written notice. Such notice shall indicate Tenant's reason for
vacating or abandoning the Premises , or (iii) becomes insolvent, makes an
assignment for the benefit of creditors, files a voluntary bankruptcy or an
involuntary petition in bankruptcy is filed against Tenant which petition is not
dismissed within sixty (60) days of its filing, or (iv) fails to perform or
observe any of the other covenants, conditions or agreements contained herein on
Tenant's part to be kept or performed and such failure shall continue for thirty
(30) days after notice thereof given by or on behalf of Landlord or such longer
period as may reasonably be required provided that Tenant diligently pursues
such cure, or (v) if the interest of Tenant shall be offered for sale or sold
under execution or other legal process if Tenant makes any transfer, assignment,
conveyance, sale, pledge, disposition of all or a substantial portion of
Tenant's property without providing Landlord at least 30 days prior written
notice then any such event or conduct shall constitute a"default" hereunder.
If Tenant shall file a voluntary petition pursuant to the United States
Bankruptcy Reform Act of 1978, as the same may be from time to time be amended
(the "Bankruptcy Code"), or take the benefit of any insolvency act or be
dissolved, or if an involuntary petition be filed against Tenant pursuant to the
Bankruptcy Code and said petition is not dismissed within sixty (60)days after
such filing, or if a receiver shall be appointed for its business or its assets
and the appointment of such receiver is not vacated within sixty (60) days after
such appointment, or if it shall make an assignment for the benefit of its
creditors, then Landlord shall have all of the rights provided for in the event
of nonpayment of the Rent.
If any alleged default on the part of the Landlord hereunder occurs, Tenant
shall give written notice to Landlord in the manner herein set forth and shall
afford Landlord a reasonable opportunity to cure any such default. In addition,
Tenant shall send notice of such default by certified or registered mail,
postage prepaid, to the holder of any Mortgage whose address Tenant has been
notified of in writing, and shall afford such Mortgage holder a reasonable
opportunity to cure any alleged default on Landlord's behalf consistent with
Article 17. In no event will Landlord be responsible for any damages incurred by
Tenant, including but not limited to, lost profits or interruption of business
as a result of any alleged default by Landlord hereunder.
ARTICLE 20.
REMEDIES OF LANDLORD
The remedies provided Landlord under this Lease are cumulative.
(a) Upon the occurrence of any default, Landlord may serve notice on Tenant that
the Term and the estate hereby vested in Tenant and any and all other rights of
Tenant hereunder shall cease on the date specified in such notice and on the
specified date this Lease shall cease and expire as fully and with the effect as
if the Term had expired for passage of time.
(b) Without terminating, this Lease in case of a default or if this Lease shall
be terminated for default as provided herein, Landlord may re-enter the
Premises, remove Tenant, or cause Tenant to be removed from the Premises in such
manner as Landlord may deem advisable, with or without legal process, and using,
such reasonable force as may be necessary. In the event of re-entry without
terminating this Lease, Tenant shall continue to be liable for all Rents and
other charges accruing, or coming due under this Lease.
(c) If Landlord, without terminating this Lease, shall re-enter the Premises or
if this Lease shall be terminated as provided in paragraph (a) above:
(i) All Rent due from Tenant to Landlord shall thereupon become due and
shall be paid up to the time of re-entry, dispossession or expiration,
together with reasonable costs and expenses (including, without
limitation, attorney's fees) of Landlord;
(ii) Landlord, without any obligation to do so, may relet the Premises
or any part thereof for a term or terms which may at Landlord's option
be less than or exceed the period which would otherwise have
constituted the balance of the Term and may grant such concessions in
reletting as Landlord, in the exercise of its reasonable business
judgment, deems desirable. In connection with such reletting, Tenant
shall be liable for all costs of the reletting including, without
limitation, rent concessions, leasing, commissions, legal fees and
alteration and remodeling costs; and
(iii) If Landlord shall have terminated this Lease, Tenant shall also
be liable to Landlord for all damages provided for in law and under
this Lease resulting from Tenant's breach including, without
limitation, the difference between the aggregate rentals reserved under
the terms of this Lease for the balance of the Term together with all
other sums payable hereunder as Rent for the balance of the Term, less
the fair rental value of the Premises for that period determined as of
the date of such termination. For purposes of this paragraph, Tenant
shall be deemed to include any guarantor or surety of the Lease.
(d) Tenant hereby waives all right to trial by jury in any claim, action
proceeding or counterclaim by either Landlord or Tenant against each other or
any matter arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and/or Tenant's use or occupancy of the
Premises.
(e) In addition to the above, Landlord shall have any and all other rights
provided a Landlord under law or equity for breach of a lease or tenancy by a
Tenant.
(f) Notwithstanding anything, in this Article to the contrary, Landlord agrees
to use commercially reasonable efforts to mitigate its damages under this Lease.
ARTICLE 21.
QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that so long as Tenant pays the Rent
and observes and performs all the terms, covenants, and conditions of this Lease
on Tenant's part to be observed and performed, Tenant may peaceably and quietly
enjoy the Premises subject, nevertheless, to the terms and conditions of this
Lease, and Tenant's possession will not be disturbed by anyone claiming, by,
through, or under Landlord.
ARTICLE 22.
ACCORD AND SATISFACT1ON
No payment by Tenant or receipt by Landlord of an amount less than full payment
of Rent then due and payable shall be deemed to be other than on account of the
Rent then due and payable, 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 Rent or pursue any other remedy
provided for in this Lease or available at law or in equity.
ARTICLE 23.
SECURITY DEPOSIT
To secure the faithful performance by Tenant of all of the covenants, conditions
and agreements set forth in this Lease to be performed by it, including, without
limitation, foregoing such covenants, conditions and agreements in this Lease
which become applicable upon its termination by re-entry or otherwise, Tenant
has deposited with Landlord the sum shown in Article 1 as a "Security Deposit"
on the understanding:
(a) that the Security Deposit or any portion thereof may be applied to the
curing of any default that may exist, without prejudice to any other remedy or
remedies which the Landlord may have on account thereof, and upon such
application Tenant shall pay Landlord on demand the amount so applied which
shall be added to the Security Deposit so the same will be restored to its
original amount;
(b) that should the Premises be conveyed by Landlord, the Security Deposit or
any balance thereof shall be turned over to the Landlord's grantee, and if the
same be turned over as aforesaid, Tenant hereby releases Landlord from any and
all liability with respect to the Security Deposit and its application or
return, and Tenant agrees to look solely to such grantee for such application or
return; and,
(c) that Landlord may commingle the Security Deposit with other funds and not be
obligated to pay Tenant any interest;
(d) that the Security Deposit shall not be considered as advance payment of Rent
or a measure of damages for any default by Tenant, nor shall it be a bar or
defense to any actions by Landlord against Tenant;
(e) that if Tenant shall faithfully perform all of the covenants and agreements
contained in this Lease on the part of the Tenant to be performed, the Security
Deposit or any then remaining, balance thereof, shall be returned to Tenant,
without interest, within thirty (30) days after the expiration of the Term.
Tenant further covenants that it will not assign or encumber the money deposited
herein as a Security Deposit and that neither Landlord nor its successors or
assigns shall be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance.
ARTICLE 24.
BROKERAGE COMMISSION
Landlord and Tenant represent and warrant to each other that neither has dealt
with any broker, finder or agent except for the Broker(s) identified in Article
1. Landlord and Tenant represent and warrant to the other that (except with
respect to the Broker identified in Article I and with whom Landlord has entered
into a separate brokerage agreement pursuant to which Landlord will pay the
commission of such Broker) no broker, agent, commission salesperson, or other
person has represented Landlord or Tenant in the negotiations for and
procurement of this Lease and the Premises and, except as set forth herein, that
no commissions, fees, or compensation of any kind are due and payable in
connection herewith to any broker, agent commission salesperson, or other
person. Landlord and Tenant agree to indemnify and hold harmless the other party
from any and all claims, suits, or judgments (including, without limitation,
reasonable attorneys' fees and court costs incurred in connection with any such
claims, suits, or judgments, or in connection with the enforcement of this
indemnity) for any fees, commissions, or compensation of any kind which arise
out of or are in any way connected with any claimed agency relationship with the
indemnifying party which is not referenced in Article 1 or any breach of the
representation or warranty contained in this Article.
ARTICLE 25.
FORCE MAJEURE
Landlord shall be excused for the period of any delay in the performance of any
obligation hereunder when prevented from so doing by a cause or causes beyond
its control, including all labor disputes, civil commotion, war, war-like
operations, invasion, rebellion, hostilities, military or usurped power,
sabotage, governmental regulations or controls, fire or other casualty,
inability to obtain any material, services or financing, or through acts of God.
Tenant shall similarly be excused for delay in the performance of any obligation
hereunder; provided:
(a) nothing contained in this Section or elsewhere in this Lease shall be deemed
to excuse or permit any delay in the payment of the Rent, or any delay in the
cure of any default which may be cured by the payment of money;
(b) no reliance by Tenant upon this Section shall limit or restrict in any way
Landlord's right of self-help as provided in this Lease; and
(c) Tenant shall not be entitled to rely upon this Section unless it shall first
have given Landlord notice of the
existence of any force majeure preventing the performance of an obligation of
Tenant within *five days after the Commencement of the force majeure. *ten
ARTICLE 26.
PARKING
(a) Landlord hereby grants to Tenant the right, in common with others authorized
by Landlord, to use the parking facilities owned by Landlord and shown on
Exhibit A, if any. Landlord, at its sole election, may designate the types and
locations of parking spaces within the parking facilities which Tenant shall be
allowed to use. Landlord shall have the right, at Landlord's sole election, to
change said types and locations from time to time; provided, however, such
designation shall be uniformly applied and shall not unfairly favor any tenant
in the Building.
(b) Commencing on the Commencement Date, Tenant shall pay Landlord the Parking
Fee, if any, shown in Article 1, as Additional Rent, payable monthly in advance
with the Monthly Rent. If there is a Parking, Fee shown in Schedule 1, then
thereafter, and throughout the Term, the parking rate for each type of parking
space provided to Tenant hereunder shall be the prevailing parking rate, as
Landlord may designate from time to time, at Landlord's sole election, for each
such type of parking space. In addition to the right reserved hereunder by
Landlord to designate the parking rate from time to time, Landlord shall have
the right to change the parking rate at any time to include therein any amounts
levied, assessed, imposed or required to be paid to any governmental authority
on account of the parking, of motor vehicles, including all sums required to be
paid pursuant to transportation controls imposed by the Environmental Protection
Agency under the Clean Air Act of 1970, as amended, or other-wise required to be
paid by any governmental authority with respect to the parking, use, or
transportation of motor vehicles, or the reduction or control of motor vehicle
traffic, or motor vehicle pollution.
(c) If requested by Landlord, Tenant shall notify Landlord of the license plate
number, year, make and model of the automobiles entitled to use the parking
facilities and if requested by Landlord, such automobiles shall be identified by
automobile window stickers provided by Landlord, and only such designated
automobiles shall be permitted to use the parking, facilities. If Landlord
institutes such an identification procedure, Landlord may provide additional
parking, spaces for use by customers and invitees of Tenant on a daily basis at
prevailing parking rates, if any. At Landlord's sole election, Landlord may make
validation stickers available to Tenant for any such additional parking spaces,
provided, however, if Landlord makes validation stickers available to any other
tenant in the Building, Landlord shall make such validation stickers available
to Tenant.
(d) The parking facilities provided for herein are provided solely for the
accommodation of Tenant and Landlord assumes no responsibility or liability of
any kind whatsoever from whatever cause with respect to the automobile parking
areas, including adjoining streets, sidewalks, driveways, property and
passageways, or the use thereof by Tenant or tenant's employees, customers,
agents, contractors or invitees.
ARTICLE 27.
HAZARDOUS MATERIALS
A. Definition of Hazardous Materials. The term "Hazardous Materials" for
purposes hereof shall mean any chemical, substance, materials or waste or
component thereof which is now or hereafter listed, defined or regulated as a
hazardous or toxic chemical, substance, materials or waste or component thereof
by any federal, state or local governing or regulatory body having jurisdiction,
or which would trigger any employee or community "right-to-know" requirements
adopted by any such body, or for which any such body has adopted any
requirements for the preparation or distribution of a materials safety data
sheet ("MSDS").
B. No Hazardous Materials. Tenant shall not transport, use, store, maintain,
generate, manufacture, handle, dispose, release or discharge any Hazardous
Materials. However, the foregoing provisions shall not prohibit the
transportation to and from, and use, storage, maintenance and handling, within
the Premises of Hazardous Materials customarily used in the business or activity
expressly permitted to be undertaken in the Premises under Article 6, provided:
(a) such Hazardous Materials shall be used and maintained only in such
quantities as are reasonably necessary for such permitted use of the Premises
and the ordinary course of Tenant's business therein, strictly in accordance
with applicable Law, highest prevailing, standards, and the manufacturers'
instructions therefor, (b) such Hazardous Materials shall not be disposed of,
released or discharged in the Building, and shall be transported to and from the
Premises in compliance with all applicable Laws, and as Landlord shall
reasonably require, (c) if any applicable Law or Landlord's trash removal
contractor requires that any such Hazardous Materials be disposed of separately
from ordinary trash, Tenant shall make arrangements at Tenant's expense for such
disposal directly with a qualified and licensed disposal company at a lawful
disposal site (subject to scheduling and approval by Landlord), and (d) any
remaining such Hazardous Materials shall be completely, properly and lawfully
removed from the Building, upon expiration or earlier termination of this Lease.
C. Notices To Landlord. Tenant shall promptly notify Landlord of: (i) any
enforcement cleanup or other regulatory action taken or threatened by any
governmental or regulatory authority with respect to the presence of any
Hazardous Materials on the Premises or the migration thereof from or to other
property, (ii) any demands or claims made or threatened by any party relating to
any loss or injury resulting from any Hazardous Materials on the Premises, (iii)
any release, discharge or non-routine, improper or unlawful disposal or
transportation of any Hazardous Materials on or from the Premises or in
violation of this Article, and (iv) any matters where Tenant is required by Law
to give a notice to any governmental or regulatory authority respecting any
Hazardous Materials on the Premises. Landlord shall have the right (but not the
obligation) to join and participate, as a party, in any legal proceedings or
actions affecting the Premises initiated in connection with any environmental,
health or safety law. At such times as Landlord may reasonably request, Tenant
shall provide Landlord with a written list, certified to be true and complete,
identifying any Hazardous Materials then used, stored, or maintained upon the
Premises, the use and approximate quantity of each such materials, a copy of any
MSDS issued by the manufacturer therefor, and such other information as Landlord
may reasonably require or as may be required by Law.
D. Indemnification of Landlord. If any Hazardous Materials are released,
discharged or disposed of by Tenant or any other occupant of the Premises, or
their employees, agents, invitees or contractors, on or about the Building in
violation of the foregoing provisions, Tenant shall immediately, properly and in
compliance with applicable Laws clean up, remediate and remove the Hazardous
Materials from the Building, and any other affected property and clean or
replace any affected personal property (whether or not owned by Landlord), at
Tenant's expense (without limiting Landlord's other remedies therefor). Tenant
shall further be required to indemnify and hold Landlord, Landlord's directors,
officers, employees and agents harmless from and against any and all claims,
demands, liabilities, losses, damages, penalties and judgments directly or
indirectly arising out of or attributable to a violation of the provisions of
this Article by Tenant, Tenant's occupants, employees, contractors or agents.
Any clean up, remediation and removal work shall be subject to Landlord's prior
written approval (except in emergencies), and shall include, without limitation,
any testing, investigation, and the preparation and implementation of any
remedial action plan required by any governmental body having jurisdiction or
reasonably required by Landlord. If Landlord or any Lender or governmental body
arranges for any tests or studies showing that this Article has been violated,
Tenant shall pay for the costs of such test. The provisions of this Article
shall survive the expiration or earlier termination of this Lease.
Landlord shall indemnify and hold Tenant, its officers, employees and agents
harmless from and against any and all claims, demands, liabilities, losses,
damages, penalties and judgments directly or indirectly arising out of or
attributable to (i) the presence as of the date hereof any Hazardous Material on
the Property in violation of any existing law, or (ii) a release, disposal or
discharge of Hazardous Material in violation of law by Landlord, or its
employees, contractors or agents. The provisions of this subparagraph shall
survive the expiration or earlier termination of this Lease.
ARTICLE 28.
ADDITIONAL RIGHTS RESERVED BY LANDLORD
In addition to any other rights provided for herein, Landlord reserves the
following rights, exercisable without liability to Tenant for damage or injury
to property, person or business and without effecting an eviction, constructive
or actual, or disturbance of Tenant's use or possession or giving rise to any
claim:
(a) To name the Building, and to change the name or street address of the
Building;
(b) To install and maintain all signs on the exterior and interior of the
Building;
(c) To designate all sources furnishing sign painting or lettering for use in
the Building,:
(d) During the last ninety (90) days of the Term, if Tenant has vacated the
Premises, to decorate, remodel, repair alter or otherwise prepare the Premises
for occupancy, without affecting Tenant's obligation to pay
Rent for the Premises;
(e) To have pass keys to the Premises and all doors therein, excluding Tenant's
vaults and safes;
(f) On reasonable prior notice to Tenant, to exhibit the Premises to any
prospective purchaser, Lender, mortgagee, or assignee of any mortgage on the
Building or Land and to others having an interest therein at any time during the
Term, and to prospective tenants during the last six months of the Term;
(g) After reasonable notice except in an emergency to take any and all measures,
including entering the Premises for the purpose of making inspections, repairs,
alterations, additions and improvements to the Premises or to the Building
(including for the purpose of checking, calibrating, adjusting and balancing
controls and other parts of the Building Systems), as may be necessary or
desirable for the operation, improvement safety, protection or preservation of
the Premises or the Building, or in order to comply with all Laws, orders and
requirements of governmental or other authority, or as may otherwise be
permitted or required by this Lease; provided, however, that Landlord shall
endeavor to minimize interference with Tenant's use of the Premises during the
progress of any work on the Premises or at the Building, Landlord will attempt
not to inconvenience Tenant, but shall not be liable for inconvenience,
annoyance, disturbance, loss of business, or other damage to Tenant by reason of
performing any work or by bringing or storing materials, supplies, tools or
equipment in the Building or Premises during the performance of any work, and
the obligations of Tenant under this Lease shall not thereby be affected in any
manner whatsoever;
(h) To relocate various facilities within the Building and on the land of which
the Building is a part if Landlord shall determine such relocation to be in the
best interest of the development of the Building and Property, provided that
such relocation shall not materially restrict access to the Premise or otherwise
have a material adverse impact on the Premises;and
(i) To install vending machines of all kinds in the Building and to receive all
of the revenue derived Premises therefrom, provided, however, that no vending
machines shall be installed by Landlord in the Premises unless Tenant so
requests.
ARTICLE 29.
DEFINED TERMS
A. "Building," shall refer to the Building named in Article 1 of which the
leased Premises are a part (including all modifications, additions and
alterations made to the Building during the term of this Lease), the real
property on which the same is located, all plazas, common areas and any other
areas located on said real property and designated by Landlord for use by all
tenants in the Building. A plan showing, the Building is attached hereto as
Exhibit A and made a part hereof and the Premises is defined in Article 2 and
shown on said Exhibit A by cross-hatched lines.
B. "Common Areas" shall mean and include all areas, facilities, equipment,
directories and signs of the Building (exclusive of the Premises and areas
leased to other Tenants) made available and designated by Landlord for the
common and joint use and benefit of Landlord, Tenant and other tenants and
occupants of the Building including, but not limited to, lobbies, public
washrooms, hallways, sidewalks, parking areas, landscaped areas and service
entrances. Common Areas may further include such areas in adjoining, properties
under reciprocal easement agreements, operating agreements or other such
agreements now or hereafter in effect and which are available to Landlord,
Tenant and Tenant's employees and invitees. Landlord reserves the right in its
sole discretion and from time to time, to construct, maintain, operate, repair,
close, limit, take out of service, alter, change, and modify all or any part of
the Common Areas.
C. "Default Rate" shall mean fifteen percent(15%) per annum, or the highest rate
permitted by applicable law, whichever shall be less. If the application of the
Default Rate causes any provision of this Lease to be usurious or unenforceable,
the Default Rate shall automatically be reduced so as to prevent such result.
D. "Hazardous Materials" shall have the meaning, set forth in Article 27.
E. "Landlord" and "Tenant" shall be applicable to one or more parties as the
case may be, and the singular shall include the plural, and the neuter shall
include the masculine and feminine; and if there be more than one, the
obligations thereof shall be joint and several. For purposes of any provisions
indemnifying or limiting the liability of Landlord, the term "Landlord" shall
include Landlord's present and future partners, beneficiaries, trustees,
officers, directors, employees, shareholders, principals, agents, affiliates,
successors and assigns.
F. "Law" or "Laws" shall mean all federal, state, county and local governmental
and municipal laws, statutes, ordinances, rules, regulations, codes, decrees,
orders and other such requirements, applicable equitable remedies and decisions
by courts in cases where such decisions are binding precedents in the state in
which the Building is located, and decisions of federal courts applying the Laws
of such state.
G. "Lease" shall mean this lease executed between Tenant and Landlord, including
any extensions, amendments or modifications and any Exhibits attached hereto.
H. "Lease Year" shall mean each calendar year or portion thereof during the
Term.
I. "Lender" shall mean the holder of a Mortgage at the time in question, and
where such Mortgage is a ground lease, such term shall refer to the ground
lessee.
J. "Mortgage" shall mean all mortgages, deeds of trust, ground leases and other
such encumbrances now or hereafter placed upon the Building, or any part thereof
with the written consent of Landlord, and all renewals, modifications,
consolidations, replacements or extensions thereof, and all indebtedness now or
hereafter secured thereby and all interest thereon.
K. "Operating Expenses" shall mean all operating expenses of any kind or nature
which are necessary, ordinary or customarily incurred in connection with the
operation, maintenance or repair of the Building, as determined by Landlord.
Operating Expenses shall include, but not be limited to:
1.1 costs of supplies, including, but not limited to, the cost of
revamping all Building, standard lighting, as the same may be required from time
to time;
1.2 costs incurred in connection with obtaining and providing energy
for the Building, including, but not limited to, costs of propane, butane,
natural gas, steam, electricity, solar energy and fuel oils, coal or any other
energy sources;
1.3 costs of water and sanitary and storm drainage services;
1.4 costs of janitorial and security services;
1.5 costs of general maintenance and repairs, including costs under
HVAC and other mechanical maintenance contracts and maintenance, repairs and
replacement of equipment and tools used in connection with operating the
Building;
1.6 costs of maintenance and replacement of landscaping,;
1.7 insurance premiums, including fire and all-risk coverage, together
with loss of rent endorsements, the part of any claim required to be paid under
the deductible portion of any insurance policies carried by Landlord in
connection with the Building (where Landlord is unable to obtain insurance
without such deductible from a major insurance carrier at reasonable rates),
public liability insurance and any other insurance carried by Landlord on the
Building, or any component parts thereof (all such insurance shall be in such
amounts as may be required by any holder of a Mortgage or as Landlord may
reasonably determine);
1.8 labor costs for personnel on-site and directly engaged in maintenance
or management of the Building including wages and other payments,costs to
Landlord of worker's compensation and disability insurance, payroll taxes,
welfare fringe benefits, and all legal fees and other costs or expenses incurred
in resolving any labor dispute;
1.9 reasonable professional building management fees required for
management of the Building;
1.10 legal, accounting, inspection, and other consultation fees
(including, without limitation, fees charged by consultants retained by Landlord
for services that are designed to produce a reduction in Operating Expenses or
to reasonably improve the operation, maintenance or state of repair of the
Building) incurred in the ordinary course of operating the Building or in
connection with making the computations required hereunder or in any audit of
operations of the Building;
1.11 the costs of capital improvements or structural repairs or
replacements made in or to the Building in order to conform to changes,
subsequent to the date of this Lease, in any applicable laws, ordinances, rules,
regulations or orders of any governmental or quasi-governmental authority having
jurisdiction over the Building (herein "Required Capital Improvements") or the
costs incurred by Landlord to install a new or replacement capital item for the
purpose of reducing Operating Expenses (herein "Cost Savings improvements"), and
a reasonable reserve for all other capital improvements and structural repairs
and replacements reasonably necessary to permit Landlord to maintain the
Building in its current class. The expenditures for Required Capital
Improvements and Cost Savings Improvements shall be amortized over the useful
life of such capital improvement or structural repair or replacement (as
reasonably determined by Landlord in accordance with GAAP ). All costs so
amortized shall bear interest on the amortized balance at the rate of twelve
Prime Rate plus 2% per annum or such higher rate as may have been paid by
Landlord on funds borrowed for the purpose of constructing these capital
improvements.
In making any computations contemplated hereby, Landlord shall also be permitted
to make such adjustments and modifications to the provisions of this paragraph
and Article 4 as shall be reasonable and necessary to achieve the
intention of the parties hereto.
L. "Rent" shall have the meaning specified therefor in Article 3.
M. "Tax" or "Taxes" shall mean:
1.1 all real property taxes and assessments levied against the Building
by any governmental or quasi-governmental authority. The foregoing shall include
all federal, state, county, or local governmental, special district, improvement
district, municipal or other political subdivision taxes, fees, levies,
assessments, charges or other impositions of every kind and nature, whether
general, special, ordinary or extraordinary, respecting the Building, including
without limitation, real estate taxes, general and special assessments, interest
on any special assessments paid in installments, transit taxes, water and sewer
rents, taxes based upon the receipt of rent, personal property taxes imposed
upon the fixtures, machinery, equipment, apparatus, appurtenances, furniture and
other personal property used in connection with the Building which Landlord
shall pay during any calendar year, any portion of which occurs during the Term
(without regard to any different fiscal year used by such government or
municipal authority except as provided below). Provided, however, any taxes
which shall be levied on the rentals of the Building shall be determined as if
the Building were Landlord's only property, and provided further that in no
event shall the term "taxes or assessment," as used herein, include any net
federal or state income taxes levied or assessed on Landlord, unless such taxes
are a specific substitute for real property taxes. Such term shall, however,
include gross taxes on rentals. Expenses incurred by Landlord for tax
consultants and in contesting the amount or validity of any such taxes or
assessments shall be included in such computations.
1.2 all "assessments", including so-called special assessments, license
tax, business license fee, business license tax, levy, charge, penalty or tax
imposed by any authority having the direct power to tax, including any city,
county, state or federal Government, or any school, agricultural, lighting,
water, drainage, or other improvement or special district thereof, against the
Premises of the Building or any legal or equitable interest of Landlord therein.
For the purposes of this lease, any special assessments shall be deemed payable
in such number of installments as is permitted by law, whether or not actually
so paid. If as of the Commencement Date the Building has not been fully assessed
as a completed project, for the purpose of computing the Operating Expenses for
any adjustment required herein or under Article 4, the Tax shall be adjusted by
Landlord, as of the date on which the adjustment is to be made, to reflect full
completion of the Building including all standard Tenant finish work if the
method of taxation of real estate prevailing to the time of execution hereof
shall be, or has been altered, so as to cause the whole or any part of the taxes
now, hereafter or theretofore levied, assessed or imposed on real estate to be
levied, assessed or imposed on Landlord, wholly or partially, as a capital levy
or otherwise, or on or measured by the rents received therefrom, then such new
or altered taxes attributable to the Building shall be included within the term
real estate taxes, except that the same shall not include any enhancement of
said tax attributable to other income of Landlord. All of the preceding clauses
K (1.1 and 1.2) are collectively referred to as the "Tax" or "Taxes".
All other capitalized terms shall have the definition set forth in the Lease.
ARTICLE 30.
MISCELLANEOUS PROVISIONS
A. RULES AND REGULATIONS.
Tenant shall comply with all of the rules and regulations promulgated by
Landlord from time to time for the Building. A copy of the current rule and
regulations is attached hereto as Exhibit D.
B. EXECUTION OF LEASE.
If more than one person or entity executes this Lease as Tenant, each such
person or entity shall be jointly and severally liable for observing and
performing each of the terms, covenants, conditions and provisions to be
observed or performed by Tenant.
C. NOTICES.
All notices under this Lease shall be in writing and will be deemed sufficiently
given for all purposes if, to Tenant, by delivery to Tenant at the Premises
during the hours the Building, is open for business or by certified mail, return
receipt requested or by overnight delivery service (with one acknowledged
receipt), to Tenant at the address set forth below, and if to Landlord, by
certified mail, return receipt requested or by overnight delivery service (with
one acknowledged receipt), at the addresses set forth below.
Landlord: at address shown in Article 1, item F.
with copy to: Legal Department
Cornerstone Real Estate Advisers, Inc.
Xxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
with an additional copy to: Building Manager at address shown in Article 1,
item G.
Tenant: at address shown in Article 1, item B.
with copy to: Xxxxxx X. Xxxxxx, Esq.
Xxxx and Xxxx
00 Xxxxx Xxxxxx, Xxxxxx, XX 00000
D. TRANSFERS.
The term "Landlord" appearing herein shall mean only the owner of the Building,
from time to time and, upon a sale or transfer of its interest in the Building,
the then Landlord and transferring party shall have no further obligations or
liabilities for matters accruing after the date of transfer of that interest and
Tenant, upon such sale or transfer, shall look solely to the successor owner and
transferee of the Building for performance of Landlord's obligations hereunder.
E. RELOCATION.
(Deleted)
F. TENANT FINANCIAL STATEMENTS.
Upon the written request of Landlord, Tenant shall submit financial statements
for its most recent financial reporting period and for the prior Lease Year.
Landlord shall make such request no more than twice during any Lease Year. All
such financial statements shall be certified as true and correct by the
responsible officer or partner of Tenant and if Tenant is then in default
hereunder, the financial statements shall be certified by an independent
certified public accountant.
G. RELATIONSHIP OF THE PARTIES.
Nothing contained in this Lease shall be construed by the parties hereto, or by
any third party, as constituting the parties as principal and agent, partners or
joint venturers, nor shall anything herein render either party (other than a
guarantor) liable for the debts and obligations of any other party, it being
understood and agreed that the only relationship between Landlord and Tenant is
that of Landlord and Tenant.
H. ENTIRE AGREEMENT: MERGER
This Lease embodies the entire agreement and understanding, between the parties
respecting the Lease and the Premises and supersedes all prior negotiations,
agreements and understandings between the parties, all of which are merged
herein. No provision of this Lease may be modified, waived or discharged except
by an instrument in writing, signed by the party against which enforcement of
such modification, waiver or discharge is sought.
I. NO REPRESENTATION BY LANDLORD.
Neither Landlord nor any agent of Landlord has made any representations,
warranties, or promises with respect to the Premises or the Building except as
expressly set forth herein.
J. LIMITATION OF LIABILITY.
Notwithstanding, any provision in this Lease to the contrary, under no
circumstances shall Landlord's liability or that of its directors, officers,
employees and agents for failure to perform any obligations arising out of or in
connection with the Lease or for any breach of the terms or conditions of this
Lease (whether written or implied) exceed Landlord's equity interest in the
Building. Any judgments rendered against Landlord shall be satisfied solely out
of proceeds of sale of Landlord's interest in the Building. Except for such
proceeds, no personal judgment shall lie against Landlord upon extinguishment of
its rights in the Building, and any judgments so rendered shall not give rise to
any right of execution or levy against Landlord's assets. The provisions hereof
shall inure to Landlord's successors and assigns including any Lender. The
foregoing provisions are not intended to relieve Landlord from the performance
of any of Landlord's obligations under this Lease, but only to limit the
personal liability of Landlord in case of recovery of a judgment against
Landlord; nor shall the foregoing, be deemed to limit Tenant's rights to obtain
injunctive relief or specific performance or other remedy which may be accorded
Tenant by law or under this Lease. If Tenant claims or asserts that Landlord has
violated or failed to perform a covenant under the Lease, Tenant's sole remedy
shall be an action for specific performance, declaratory judgment or injunction
and in no event shall Tenant be entitled to any money damages in any action or
by way of set off, defense or counterclaim and Tenant hereby specifically waives
the right to any money damages or other remedies for any such violation or
failure.
K. MEMORANDUM OF LEASE.
Neither party, without the written consent of the other, will execute or record
any this Lease or any summary or memorandum of this Lease in any public
recorders office.
L. NO WAIVERS: AMENDMENTS.
Failure of Landlord to insist upon strict compliance by Tenant of any condition
or provision of this Lease shall not be deemed a waiver by Landlord of that
condition. No waiver shall be effective against Landlord unless in writing and
signed by Landlord. Similarly, this Lease cannot be amended except by a writing
signed by Landlord and Tenant.
M. SUCCESSORS AND ASSIGNS.
The conditions, covenants and agreements contained herein shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
N. GOVERNING LAW.
This Lease shall be governed by the law of the State where the Building is
located.
O. EXHIBITS.
All exhibits attached to this Lease are a part hereof and are incorporated
herein by reference and all provisions of such exhibits shall constitute
agreements, promises and covenants of this Lease.
P. CAPTIONS.
The captions and headings used in this Lease are for convenience only and in no
way define or limit the scope, interpretation or content of this Lease.
Q. COUNTERPARTS.
This Lease may be executed in one (1) or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
ARTICLE 31.
SPECIAL PROVISIONS
A. OPTION TO EXTEND.
(a) Tenant shall have one (1) option to extend this Lease in accordance with the
provisions of this paragraph for an additional term of five (5) years on all of
the same terms and conditions of this lease with the exception of base rent
payable under Article 1 K. hereof which shall be Landlord's then prevailing base
rent being charged by Landlord for space in the Building reasonably comparable
to the Premises. Provided, however, Tenant may not exercise the foregoing option
to extend if it shall be in default under the Lease and any attempted exercise
while in default shall be null and void and of no effect. If Tenant elects to
exercise the foregoing option to extend, it shall give Landlord written notice
of its election to do so on or before eight (8) months prior to the normal
expiration date of the Lease, but not prior to twelve (12) months prior to the
normal expiration date of the Lease, time being of the essence, which notice
shall also request that Landlord furnish Tenant with the base rent of the
extended term which shall be derived using Landlord's then prevailing rate for
space in the Building comparable to the Premises. Landlord shall furnish Tenant
with the base rent figure for the term extension within ten (10) days of receipt
of Tenant's notice of exercise. Provided, however, in the event Landlord and
Tenant have not signed an amendment to this Lease for any reason confirming the
extended term of the Lease and setting forth the base rent for the term by no
less than six (6) months prior to the normal expiration date of the Lease, time
being of the essence, then Tenant's extension of the Lease shall be deemed null
and void and this Lease shall expire on its initial expiration date as if the
above extension option had not been exercised. Tenant agrees to execute such
additional documents, if any, as Landlord may reasonably require regarding such
extension. Tenant has no other options to extend this Lease except as set forth
in this paragraph.
B. RIGHT OF FIRST OFFER
During the term of this lease but subject to the prior rights of any other
party, if any, tenant is hereby granted a Right of First Offer on the fifth
(5th) floor space which may from time to time become vacant (the "ROFO Space").
Before Landlord markets any portion of the ROFO Space to any party other than
the then current occupant, if any, or those having a prior right, Landlord will
notify Tenant of the availability and description of the ROFO Space and the
basic terms under which Landlord is going to market the ROFO Space and Tenant
will have the first opportunity to lease such ROFO Space prior to other third
parties. Within seven (7) days of such notice, time being of the essence, Tenant
shall give Landlord a notice that it either does or does not wish to enter into
a Lease with Landlord for the ROFO Space. In the event that Tenant's notice
provides that it does not wish to enter into a Lease for the ROFO Space or if
Tenant fails to give Landlord the notice of its desires respecting the ROFO
Space within the foregoing required seven (7) day period, then Landlord shall be
entitled to proceed to market and/or lease the ROFO Space to a third party free
and clear of Tenant's right of first offer and such right shall be deemed
terminated with respect to the ROFO Space described in the notice from Landlord.
In the event that Tenant gives Landlord a notice as required in the preceding
paragraph that it wishes to lease the ROFO Space from Landlord, then Tenant
shall have thirty (30) days from the date of the notice within which to sign a
new lease covering the ROFO Space or to amend this Lease by adding the ROFO
Space. In the event Tenant fails to sign such a lease or amendment to this Lease
within said thirty (30) day period, time being of the essence, then Landlord
shall be entitled to proceed to market and/or lease the ROFO Space to a third
party free and clear of such right and such right shall be deemed terminated
with respect to the ROFO Space described in the notice from Landlord.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties have
duly executed this Lease with the Exhibits attached hereto, as of this 15 day of
May ,1997 .
Attest or Witness: LANDLORD:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: CORNERSTONE REAL ESTATE
ADVISERS, INC., its agent
By: /s/Xxxxxxx X. Xxxxxxx By: /s/Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
Attest or Witness: TENANT:
XXXXXXX SYSTEMS U.S., INC.
By: /s/Xxxx Xxxxxx By: /s/Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title: CFO
Date: May 15, 1997
Certificate of Tenant
(If A Corporation or Partnership)
I, Xxxx X. Xxxxx, III, Secretary or General Partner of XXXXXXX SYSTEMS U.S.,
INC., Tenant, hereby certify that the officers executing the foregoing Lease on
behalf of Tenant is/are duly authorized to act on behalf of and bind the Tenant.
(Corporate Seal) Xxxx X. Xxxxx, III
Secretary or General Partner
Date:
EXHIBIT A
Plan Showing Property and Premises
EXHIBIT B
Landlord's Work Letter
Allowance
May 15, 1997
Re: XXXXXXX SYSTEMS U.S., INC.
Suite #500 & #501
0 Xxx xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Simultaneously with the execution of this Work Letter Agreement, you ("Tenant")
and Massachusetts Mutual Life Insurance Company ("Landlord") are entering into a
lease (the "Lease") pertaining to the space referred to above (the "Premises").
In consideration of the covenants contained in this Work Letter Agreement and in
the Lease, Landlord and Tenant agree as follows:
TENANT'S PLANS
1. Tenant desires Landlord to perform certain leasehold improvement work (the
"Work") in the Premises pursuant to a plan (the "Plan") for the Work prepared by
MPA Architects, dated May 8, 1997, a copy of which is attached hereto as
Schedule 1. Not later than two (2) weeks from the signing of the lease, Tenant
shall furnish to Landlord all construction drawings, including a final telephone
layout and special electrical connection requirements, if any. The Work and all
plans, drawings and specifications to be furnished by Tenant shall be subject to
Landlord's and Landlord's architect/engineer's approval, such approval not to be
unreasonably withheld or delayed. Approval by Landlord of the Work and the Plan
shall not constitute any warranty by Landlord to Tenant of the adequacy of the
design for Tenant's intended use of the Premises nor shall Landlord's approval
of the Plan create any liability or responsibility on the part of Landlord for
compliance with applicable statutes, ordinances, regulations, laws, codes and
industry standards relating to handicap discrimination (including, without
limitation, the Americans with Disabilities Act). All Tenant Improvement
drawings to be prepared by the Tenant's architect from the CAD drawings
submitted by Xxxxxxxx & Associates will remain the property of the Landlord.
WORKING DRAWINGS
(Deleted)
PERFORMANCE OF THE WORK
3 . Except as hereinafter provided to the contrary, Landlord shall perform the
Work shown on the Plan and Working Drawings in a good and workmanlike manner
using (except as may be stated or shown in the Plan or the Working Drawings)
building standard materials and quantities ("Building Standards"). Landlord
shall pay for a portion of the cost of the Work in an amount not to exceed
$15.00 per rentable square foot of the Premises (the "Allowance") and Tenant
shall pay for any and all costs and expenses associated with the Work
(including, without limitation, such additional expenses which result from any
special work, materials, finishes or installations required by Tenant,
unforeseen field conditions, or from any delays in the Work occasioned by
Tenant) in excess of the Allowance. Tenant shall not be entitled to any credit
or payment from Landlord for any portion of the Allowance not utilized by
Tenant.
PAYMENT
4. Prior to commencing the Work, Landlord will submit to Tenant a written
statement of the cost of that portion of the Work to be paid for by Tenant,
which cost shall include a 15% add-on charge for Landlord's field supervision,
administration and overhead. Tenant agrees, within three (3) days after
submission to it of such statement of cost, to execute and deliver to Landlord,
in the form then in use by Landlord, an authorization to proceed with that
portion of the Work to be paid for by Tenant, and Tenant shall also then pay to
Landlord the amount set forth in Landlord's statement within thirty (30) days of
submission of such statement. Delays in the performance of the Work resulting
from the failure of Tenant to comply with the provisions of the preceding
sentence shall be deemed to be delays caused by Tenant. No Work shall be
commenced until Tenant has fully complied with the preceding portions of this
Paragraph 4.
SUBSTANTIAL COMPLETION
5. Landlord shall cause the Work to be "substantially completed" on or before
the date described in Article 1.H. of Basic Provisions in the Lease, subject to
delays described in Article 5. of the Lease and delays described in Paragraph 6
of this Work Letter Agreement. The Work shall be considered "substantially
completed" for all purposes under this Work Letter Agreement and the Lease if
and when Landlord's architect issues a written certificate to Landlord and
Tenant, certifying that the Work has been completed (except for minor finish-out
and "punchlist" items which Landlord shall endeavor to complete as soon as
practicable) in substantial compliance with the Plan and, if applicable, the
Working Drawings, and a Certificate of Occupancy has been issued, or when Tenant
first takes occupancy of the Premises, whichever first occurs. If the Work is
not substantially completed on or before the date described in Article 1.H. of
Basic Provisions in the Lease, the Commencement Date shall be extended (subject
to Paragraph 6 below) to the date on which the Work is substantially completed
and the expiration date described in Article 1.I. of Basic Provisions in the
Lease shall be extended by an equal number of days.
TENANT DELAYS
6. There shall be no extension of the date described in Article 1.H. of Basic
Provisions in the Lease (as permissibly extended under Paragraph 5 above) to the
extent that the Work has not been substantially completed on said date by reason
of any delay attributable to Tenant, including without limitation:
(i) the failure of Tenant to furnish all plans, drawings, specifications, finish
details or the other information required under Paragraph 1 above on or before
the date stated in Paragraph 1;
(ii) the failure of Tenant to comply with the requirements of Paragraph 4 above;
(iii) Tenant's requirements for special work or materials, finishes, or
installations other than the Building Standards;
(iv) the performance of any other work in the Premises by any person, firm or
corporation employed by or on behalf of Tenant, or any failure to complete or
delay in completion of such work; or
(v) any other act or omission of Tenant.
ADDITIONAL WORK
7. Upon Tenant's request and submission by Tenant (at Tenant's sole cost and
expense) of the necessary information and/or plans and specifications for work
other than the Work specified in the Plan and Working Drawings (the "Additional
Work"), Landlord may, at its election, perform the Additional Work, at Tenant's
sole cost and expense. Prior to commencing any Additional Work requested by
Tenant, Landlord shall submit to Tenant a written statement of the cost of such
Additional Work which cost shall include a 15% add-on charge for Landlord's
field supervision, administration and overhead and a proposed Tenant Extra Order
(the "TEO") for Additional Work in the standard form then in use by Landlord. If
Tenant shall fail to enter into said TEO within one (1) week after Tenant's
receipt thereof, Landlord shall proceed to do only the Work specified in the
Plan and Working Drawings. Tenant agrees to pay to Landlord, concurrently with
its execution of the TEO, the entire cost of the Additional Work as shown in the
statement delivered by Landlord.
TENANT ACCESS
8. Landlord, in Landlord's reasonable discretion and upon reasonable request by
Tenant, and subject to Landlord's approval, not to be unreasonably withheld or
delayed, may grant to Tenant and Tenant's agents a license to enter the Premises
prior to the date designated in the Lease for the commencement of the Term in
order that Tenant may do other work required by Tenant to make the Premises
ready for Tenant's use and occupancy. It shall be a condition to the grant by
Landlord and continued effectiveness of such license that:
(a) Tenant shall give to Landlord not less than five (5) days prior written
notice of its request to have such access to the Premises, which notice shall
contain and/or shall be accompanied by: (i) a description of and schedule for
the work to be performed by those persons and entities for whom and which such
access is being requested; (ii) the names and addresses of all contractors,
subcontractors and material suppliers for whom and which such early access is
being requested and the approximate number of individuals, itemized by trade,
who will be present in the Premises; (iii) copies of all contracts pertaining to
the performance of the work for which such early access is being requested; (iv)
copies of all plans and specifications pertaining to the work for which such
access is being requested; (v) copies of all licenses and permits required in
connection with the performance of the work for which such access is being
requested; (vi) certificates of insurance (in amounts and with insured parties
satisfactory to Landlord) and instruments of indemnification against all claims,
costs, expenses, damages and liabilities which may arise in connection with such
work; and (vii) assurances of the availability of funds sufficient to pay for
all such work. All of the foregoing shall be subject to Landlord's approval,
which shall not be unreasonably withheld or delayed.
(b) Such, early access shall be subject to reasonable scheduling by Landlord.
(c) Tenant's agents, contractors, workmen, mechanics, suppliers and invitees
shall work in harmony and not interfere with Landlord and Landlord's agents in
performing the Work any Additional Work in the Premises, Landlord's work in
other premises and in common areas of the Building, or the general operation of
the Building. If at any time such entry shall cause or threaten to cause such
disharmony, Landlord may withdraw such license upon twenty-four (24) hours'prior
written notice to Tenant Any such entry into and occupation of the Premises by
Tenant shall be deemed to be under all of the terms, covenants, conditions and
provisions of the Lease, excluding only the covenant to pay Rent and
specifically including the provisions of Section 10 thereof. Landlord shall not
be liable for any injury, loss or damage which may occur to any of Tenant's work
or installations made in the Premises or to property placed therein prior to the
commencement of the Term, the same being at Tenant's sole risk and liability.
Tenant shall be liable to Landlord for any damage to the Premises or to any
portion of the Work caused by Tenant or any of Tenant's employees, agents,
contractors, workmen or suppliers. In the event the performance of the work by
Tenant, its agents, employees or contractors causes extra out-of-pocket costs to
Landlord or requires the use of elevators during hours other than 8:00 a.m. to
4:30 p.m. on Monday through Friday (except holidays), Tenant shall reimburse
Landlord for the entire extra cost and the cost incurred by Landlord for the
engineers or operators under applicable union regulations or contracts.
9. The terms and provisions of the Lease, insofar as they are applicable to this
Work Letter Agreement, are hereby incorporated herein by reference.
10. All amounts payable by Tenant to Landlord hereunder shall be deemed to be
Rent under the Lease and upon any default in the payment of same, Landlord shall
have all of the rights and remedies provided for in the Lease.
TENANT: LANDLORD:
XXXXXXX SYSTEMS U.S., INC. MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: CORNERSTONE REAL ESTATE
ADVISERS, INC., its agent
By: /s/Xxxxxxxxxxx X. Xxxxxx By: /s/Xxxxxx Xxxxxxx
------------------------ -----------------
Name: Xxxxxxxxxxx X. Xxxxxx Name: Xxxxxx Xxxxxxx
Title: CFO Title: Vice President
Date: May 15, 1997 Date: May 19, 1997
EXHIBIT C
Tenant's Work
(Intentionally Left Blank)
EXHIBIT D
Building's Rules and Regulations
and Janitorial Specifications
1. The sidewalks, entrances, passages, courts, elevators, vestibules, stairways,
corridors or halls of the Building shall not be obstructed or encumbered or used
for any purpose other than ingress and egress to and from the premises demised
to any tenant or occupant.
2. No awnings or other projection shall be attached to the outside walls or
windows of the Building without the prior consent of Landlord. No curtains,
blinds, shades, or screens shall be attached to or hung in, or used in
connection with, any window or door of the premises demised to any tenant or
occupant, without the prior consent of Landlord. Such awnings, projections,
curtains, blinds, shades, screens or other fixtures must be of a quality, type,
design and color, and attached in a manner, approved by Landlord.
3. No sign, advertisement, object, notice or other lettering shall be exhibited,
inscribed, painted or affixed on any part of the outside or inside of the
premises demised to any tenant or occupant of the Building without the prior
consent of Landlord. Interior signs on doors and directory tables, if any, shall
be of a size, color and style approved by Landlord.
4. The sashes, sash doors, skylights, windows, and doors that reflect or admit
light and air into the halls, passageways or other public places in the Building
shall not be covered or obstructed, nor shall any bottles, parcels, or other
articles be placed on any window xxxxx.
5. No show cases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, nor placed in the halls, corridors,
vestibules or other public parts of the Building.
6. The water and wash closets and other plumbing fixtures shall not be used for
any purposes other than those for which they were constructed, and no sweepings,
rubbish, rags, or other substances shall be thrown therein. No tenant shall
bring or keep, or permit to be brought or kept, any inflammable, combustible,
explosive or hazardous fluid, materials, chemical or substance in or about the
premises demised to such tenant.
7. No tenant or occupant shall xxxx, paint, drill into, or in any way deface any
part of the Building or the premises demised to such tenant or occupant. No
boring, cutting or stringing of wires shall be permitted, except with the prior
consent of Landlord, and as Landlord may direct. No tenant or occupant shall
install any resilient tile or similar floor covering in the premises demised to
such tenant or occupant except in a manner approved by Landlord.
8. No bicycles, vehicles or animals of any kind shall be brought into or kept in
or about the premises demised to any tenant. No cooking shall be done or
permitted in the Building by any tenant without the approval of the Landlord. No
tenant shall cause or permit any unusual or objectionable odors to emanate from
the premises demised to such tenant.
9. No space in the Building shall be used for manufacturing, for the storage of
merchandise, or for the sale of merchandise, goods, or property of any kind at
auction, without the prior consent of Landlord.
10. No tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with other tenants or occupants of the Building
or neighboring buildings or premises whether by the use of any musical
instrument, radio, television set or other audio device, unmusical noise,
whistling, singing or in any other way. Nothing shall be thrown out of any doors
or window.
11. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows, nor shall any changes be made in locks or the mechanism
thereof. Each tenant must, upon the termination of its tenancy, restore to
Landlord all keys of stores, offices and toilet rooms, either furnished to, or
otherwise procured by, such tenant.
12. All removals from the Building, or the carrying in or out of the Building or
the premises demised to any tenant, of any safes, freight, furniture or bulky
matter of any description must take place at such time and in such manner as
Landlord or its agents may determine, from time to time. Landlord reserves the
right to inspect all freight to be brought into the Building and to exclude from
the Building all freight which violates any of the Rules and Regulations or the
provisions of such tenant's lease.
13. No tenant shall use or occupy, or permit any portion of the premises demised
to such tenant to be used or occupied, as an office for a public stenographer or
typist, or to a xxxxxx or manicure shop, or as an employment bureau. No tenant
or occupant shall engage or pay any employees in the Building, except those
actually working for such tenant or occupant in the Building, nor advertise for
laborers giving an address at the Building.
14. No tenant or occupant shall purchase spring water, ice, food, beverage,
lighting maintenance, cleaning towels or other like service, from any company or
person not approved by Landlord. No vending machines of any description shall be
installed, maintained or operated upon the premises demised to any tenant
without the prior consent of Landlord.
15. Landlord shall have the right to prohibit any advertising by any tenant or
occupant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon notice from
Landlord, such tenant or occupant shall refrain from or discontinue such
advertising.
16. Landlord reserves the right to exclude from the Building, between the hours
of 6:00 P.M. and 8:00 A.M. on business days and at all hours on Saturdays,
Sundays and holidays, all persons who do not present a pass to the Building
signed by Landlord. Landlord will furnish passes to persons for whom any tenant
requests such passes. Each tenant shall be responsible for all persons for whom
it requests such passes and shall be liable to Landlord for all acts of such
persons.
17. Each tenant, before closing and leaving the premises demised to such tenant
at any time, shall see that all entrance doors are locked and all windows
closed. Corridor doors, when not in use, shall be kept closed.
18. Each tenant shall, at its expense, provide artificial light in the premises
demised to such tenant for Landlord's agents, contractors and employees while
performing janitorial or other cleaning services and making repairs or
alterations in said premises.
19. No premises shall be used, or permitted to be used for lodging or sleeping
or for any immoral or illegal purposes.
20. The requirements of tenants will be attended to only upon application at the
office of Landlord. Building, employees shall not be required to perform, and
shall not be requested by any tenant or occupant to perform and work outside of
their regular duties, unless under specific instructions from the office of
Landlord.
21. Canvassing, soliciting and peddling in the Building are prohibited and each
tenant and occupant shall cooperate in seeking their prevention.
22. There shall not be used in the Building, either by any tenant or occupant or
by their agents or contractors, in the delivery or receipt of merchandise,
freight, or other matter, any hand trucks or other means of conveyance except
those equipped with rubber tires, rubber side guards and such other safeguards
as Landlord may require.
23. If the Premises demised to any tenant become infested with vermin, such
tenant, at its sole cost and expense, shall cause its premises to be
exterminated, from time to time, to the satisfaction of Landlord, and shall
employ such exterminators therefor as shall be approved by Landlord.
24. No premises shall be used, or permitted to be used, at any time, without the
prior approval of Landlord, as a store for the sale or display of goods, wares
or merchandise of any kind, or as a restaurant, shop, booth, bootblack or other
stand, or for the conduct of any business or occupation which predominantly
involves direct patronage of the general public in the premises demised to such
tenant, or for manufacturing or for other similar purposes.
25. No tenant shall clean any window in the Building from the outside.
26. No tenant shall move, or permit to be moved, into or out of the Building or
the premises demised to such tenant, any heavy or bulky matter, without the
specific approval of Landlord. If any such matter requires special handling;
only a qualified person shall be employed to perform such special handling. No
tenant shall place, or permit to be placed, on any part of the floor or floors
of the premises demised to such tenant, a load exceeding the floor load per
square foot which such floor was designed to carry and which is allowed by law.
Landlord reserves the right to prescribe the weight and position of safes and
other heavy matter, which must be placed so as to distribute the weight.
27. Landlord shall provide and maintain an alphabetical directory board in the
first floor (main lobby) of the Building and no other directory shall be
permitted without the prior consent of Landlord. Each tenant shall be allowed
one line on such board unless otherwise agreed to in writing.
28. With respect to work being performed by a tenant in its premises with the
approval of Landlord, the tenant shall refer all contractors, contractors'
representatives and installation technicians to Landlord for its supervision,
approval and control prior to the performance of any work or services. This
provision shall apply to all work performed in the Building including
installation of telephones, telegraph equipment, electrical devices and
attachments, and installations of every nature affecting floors, walls,
woodwork, trim, ceilings, equipment and any other physical portion of the
Building.
29. Landlord shall not be responsible for lost or stolen personal property,
equipment, money, or jewelry from the premises of tenants or public rooms
whether or not such loss occurs when the Building, or the premises are locked
against entry.
30. Landlord shall not permit entrance to the premises of tenants by use of pass
keys controlled by Landlord, to any person at any time without written
permission from such tenant, except employees, contractors, or service personnel
directly supervised by Landlord and employees of the United States Postal
Service.
31. Each tenant and all of tenant's employees and invitees shall observe and
comply with the driving and parking signs and markers on the Land surrounding
the Building, and Landlord shall not be responsible for any damage to any
vehicle towed because of noncompliance with parking regulations.
32. Without Landlord's prior approval, no tenant shall install any radio or
television antenna, loudspeaker, music system or other device on the roof or
exterior walls of the Building or on common walls with adjacent tenants.
33. Each tenant shall store all trash and garbage within its premises or in such
other areas specifically designated by Landlord. No materials shall be placed in
the trash boxes or receptacles in the Building unless such materials may be
disposed of in the ordinary and customary manner of removing and disposing of
trash and garbage and will not result in a violation of any law or ordinance
governing such disposal. All garbage and refuse disposal shall be only through
entryways and elevators provided for such purposes and at such times as Landlord
shall designate.
34. No tenant shall employ any persons other than the janitor or Landlord for
the purpose of cleaning its premises without the prior consent of Landlord. No
tenant shall cause any unnecessary labor by reason of its carelessness or
indifference in the preservation of good order and cleanliness. Janitor service
shall include ordinary dusting and cleaning by the janitor assigned to such work
and shall not include beating of carpets or rugs or moving of furniture or other
special services. Janitor service shall be furnished Mondays through Fridays,
legal holidays excepted; janitor service will not be furnished to areas which
are occupied after 9:30 P.M. Window cleaning shall be done only by Landlord, and
only between 6:00 A.M and 5:00 P.M.
EXHIBIT E
Commencement Date Confirmation
DECLARATION BY LANDLORD AND TENANT AS TO DATE OF DELIVERY AND
ACCEPTANCE OF POSSESSION OF PREMISES
Attached to and made a part of the Lease dated the 15th day of May 1997 entered
into and by MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY as LANDLORD, and XXXXXXX
SYSTEMS US, INC. as TENANT.
LANDLORD AND TENANT do hereby declare that possession of the Premises was
accepted by TENANT on 15th day of May, 1997. The Premises required to be
constructed and finished by LANDLORD in accordance with the provisions of the
Lease have been satisfactorily completed by LANDLORD and accepted by TENANT, the
Lease is now in full force and effect, and as of the date hereof, LANDLORD has
fulfilled all of its obligations under the Lease. The Lease Commencement Date is
hereby established as July 15, 1997. The Term of this Lease shall terminate on
July 31, 2002.
LANDLORD:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: CORNERSTONE REAL ESTATE
ADVISERS, INC., its agent
By: /s/Xxxxxx Xxxxxxx
Name Typed: Xxxxxx Xxxxxxx
Title: Vice President
Date: May 19, 1997
TENANT:
XXXXXXX SYSTEMS US, INC.
By: /s/Xxxxxxxxxxx X. Xxxxxx
Name Typed: Xxxxxxxxxxx X. Xxxxxx
Title: CFO
Date: May 15, 1997
GUARANTY OF LEASE
In consideration of and as an inducement to Massachusetts Mutual Life Insurance
Company (hereinafter "Landlord") to enter into that certain Lease Agreement
(herein the "Lease") of even date herewith with Xxxxxxx Systems U.S., Inc.
(hereinafter "Tenant") respecting space in the property commonly known as
Landmark One and located at Xxx Xxx xx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx,
00000, the undersigned(s) hereby unconditionally guarantee to Landlord and the
successors and assigns of Landlord's interest under the Lease and/or this
Guaranty (i) the full and prompt payment of all rent and other charges from as
and when the same become due and payable under the Lease, and (ii) the full and
punctual performance and observance of all of the covenants, conditions and
agreements provided in said Lease to be performed or observed by Tenant. If, at
any time, default shall be made by Tenant in the payment, performance or
observance of any of the obligations, terms, covenants or conditions in the
Lease on Tenant's part to be paid, kept, performed or observed, which default
continues after the giving of any required notice and the expiration of any
applicable grace period, the undersigned(s) upon demand by Landlord will
forthwith pay, keep perform and observe the same in the place and stead of
Tenant.
In connection with the giving of the foregoing guarantees, the undersigned(s)
hereby agree as follows:
1. Any act of Landlord, or the successors or assigns of Landlord, consisting of
a waiver of any of the terms or conditions of the Lease, or the giving of any
consent to any manner or thing relating to the Lease, or the granting of any
indulgences or extensions of time to Tenant, may be done without notice to the
undersigned(s) and without releasing the obligations of the undersigned(s)
hereunder;
2. The obligations of the undersigned(s) shall not be released by Landlord's
receipt, application or release of security given for the payment, performance
or observance of any covenants or conditions in the Lease on the part of Tenant
to be paid, performed or observed;
3. The undersigned(s) hereby waive notice of any and all defaults under the
Lease by Tenant including, without limitation, notice of non-payment and
non-performance and non-observance of any term, covenant or condition by Tenant
under the Lease. The undersigned(s) specifically agree that the continuing
validity and enforceability of this Guaranty and the obligations and liabilities
of the undersigned(s) hereunder shall not be terminated, affected or impaired by
reason of the assertion or enforcement by Landlord against Tenant of any of the
rights or remedies reserved to Landlord pursuant to the provisions of the Lease
or under law;
4. The undersigned(s) covenant and agree (a) that this Guaranty shall remain and
continue in full force and effect as to any and all modifications, renewals and
extensions of the Lease, and during any period when Tenant occupies the Premises
whether as a holdover tenant or otherwise to the same extent as if such renewal,
modification, occupancy or extension were in effect at the time of execution of
this guaranty, and (b) the liability of the undersigned(s) shall be deemed
modified in accordance with terms of such modification, renewal, extension or
occupancy, all of the foregoing whether or not the undersigned has received any
notice thereof either before, at the time of or after the same is made and
whether or not the undersigned(s) consent or agree or have consented or agreed
thereto (all such notices and any requirements for undersigned(s) consent and/or
agreement being hereby specifically waived);
5 The liability of the undersigned(s) under this Guaranty shall in no way be
affected or impaired by (a) the release or discharge of the Tenant in any
creditors' receivership, bankruptcy or other proceedings, (b) the impairment,
limitation or modification of the liability of the Tenant or the estate of the
Tenant in bankruptcy, or of any remedy for the enforcement of the Tenant's
obligations and liabilities under the Lease, resulting from the operation of any
present or future provision of the Bankruptcy Code or other statute or from the
decision of any court, (c) the rejection or disaffirmance of the Lease in any
such proceedings, (d) the assignment or transfer of the Lease by Tenant, or (e)
the cessation from any cause whatsoever of the liability of the Tenant;
6. Until all the covenants and conditions in the Lease on the Tenant's part to
be performed and observed are fully performed and observed, the undersigned(s):
(a) shall have no right of subrogation against Tenant by reason of any payments
or acts of performance by the undersigned(s), in compliance with the obligations
of the undersigned(s) hereunder: (b) waive any right to enforce any remedy which
the undersigned(s) now or hereafter has or may have against Tenant by reason of
any one or more payments or acts of performance in compliance with the
obligations of the undersigned(s) hereunder; and, (c) subordinates any liability
or indebtedness of Tenant now or hereafter held by the undersigned(s) to the
obligations of Tenant now or hereafter held by the undersigned(s) to the
obligations of Tenant to Landlord under the Lease;
7. The undersigned(s) agree that if more than one person executes this guaranty
or one or more counterparts hereof, their liability shall be joint and several
and each of the undersigned(s)' liability hereunder shall remain in full force
and effect whether or not anyone else executes this guaranty or a counterpart
hereof. References in this Guaranty to the "undersigned(s)" shall mean and
include the undersigned(s) collectively and each of the undersigned(s) in their
individual capacities. The undersigned(s) represent and warrant to Landlord that
this Guaranty has been duly authorized and constitutes the valid and binding
obligation of the undersigned(s). In any action or proceeding brought by
Landlord to enforce this Guaranty, the undersigned(s) to the maximum extent
permitted by law shall and do hereby waive trial by jury;
8. This Guaranty may not be changed, modified, discharged or terminated orally
or in any manner other than by an agreement in writing signed by the
undersigned(s) and Landlord. In all cases, notices may be given to the
undersigned(s) at the addresses set forth below under their respective
signatures and such notice will be deemed to have been sufficiently given for
all purposes if hand delivered or, if sent by prepaid certified mail, return
receipt requested, as of the date of mailing. By a notice similarly given to
Landlord c/o Cornerstone Real Estate Advisers, 000 X. Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000, attention: Asset Manager, the undersigned(s) may change
their address for notice purposes.
9. The Guarantor irrevocably and unconditionally (a) agrees that any suit,
action or legal proceeding arising out of this Guaranty may be brought in the
courts of record of the State of Massachusetts in Middlesex County or in any of
the courts of the United States; (b) consents to the jurisdiction of each court
in any such suit, action, or proceeding; and (c) waives any objection which it
may have to the laying of venue of any such suit, action, or proceeding in any
of such courts. For such time as any of the obligations hereunder shall be
unpaid in whole, or in part, the Guarantor appoints the Tenant as its agent to
accept and acknowledge on the Guarantor's behalf service of any and all process
in any such suit, action, or proceeding brought in any such court. The Guarantor
agrees and consents that any such service of process upon such agents and
written notice of such service to the Guarantor in the manner set forth in
Section 8 hereof shall be taken and held to be valid personal service upon the
Guarantor whether or not the Guarantor shall then be doing, or at any time shall
have done, business within the State of Massachusetts. Such agents shall not
have the power or authority to enter into any appearance or to file any
pleadings in connection with any suit, action, or other legal proceedings
against the Guarantor or to conduct the defense of any suit, action, or any
other legal proceeding, except as expressly authorized by the Guarantor.
Executed this 15th day of May 1997.
Guarantor:
Xxxxxxx Systems PLC
By: /s/Xxxxxxxxxxx X. Xxxxxx
Name Typed: Xxxxxxxxxxx X. Xxxxxx
Title: CFO
Address: 00 Xxxxxxxxxx Xxxx Xx.
Xxxxxxxxxx, XX 00000
NOTICE OF LEASE
Notice is hereby given, pursuant to the provisions of Chapter 183A, Section 4 of
the Massachusetts General Laws, of the following Lease:
LANDLORD: Massachusetts Mutual Life Insurance Company
c/o Cornerstone Real Estate Advisors, Inc.
000 X. Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
TENANT: Xxxxxxx Systems U.S., Inc.
Suite 500 and 000
0Xxx xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
DATE OF EXECUTION: May 15, 1997
PREMISES: Suite/Unit No.: 500 & 501, consisting of 12,417
rentable square feet and shown on a plan attached
hereto as Exhibit A in the Building known as Landmark
One (the "Building') located at Xxx Xxx xx Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx. For Landlord's
title, see Middlesex South Registry of Deeds, Book___
, Page _.
TERM: July 15, 1997 through July 31, 2002, provided that
the Commencement Date shall be advanced to such
earlier date as Tenant commences occupancy of the
Premises for the conduct of its business, and
provided further that the Term Commencement Date
and Expiration Date shall be postponed for an equal
number of days as the delay of Landlord in completing
improvements to the premises for Tenant's initial
occupancy caused by strike, shortages of labor or
materials, delivery delays or other matters beyond
the reasonable control of Landlord as set forth in
a notice from Landlord to Tenant of such delay.
OPTION TO EXTEND: Tenant shall have one option to extend the Lease for
an additional term of five (5) years on the terms and
conditions set forth in the Lease.
RIGHT OF FIRST
OFFER: Under the term of the Lease but subject to the prior
rights of any other party, if any, Tenant has a right
of first offer on all space on the fifth (5th) floor
of the Building on the terms and conditions set forth
in the Lease.
WITNESS the execution hereof under seal this 15 day of May, 1997.
LANDLORD:
Massachusetts Mutual Life Insurance
Company
By: Cornerstone Real Estate Advisers, Inc.,
its agent
By: /s/Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
TENANT:
Xxxxxxx Systems U.S., Inc.
By: /s/Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title: CFO
COMMONWEALTH OF MASSACHUSETTS
, ss: May 19 1997
Then personally appeared the above-named Xxxxxx Xxxxxxx, the Vice
President of Cornerstone Real Estate Advisers, Inc., agent of Massachusetts
Mutual Life Insurance Company, and acknowledged the foregoing to be the free act
and deed of Cornerstone Real Estate Advisers, Inc. on behalf of Massachusetts
Mutual Life Insurance company, before me,
/s/Xxxxxxx X. Xxxxxxx
Notary Public
My Commission Expires: 05/02/00
"OFFICIAL SEAL"
XXXXXXX X. XXXXXXX
NOTARY PUBLIC STATE OF ILLINOIS
MY COMMISION EXPIRES 05102100
COMMONWEALTH OF MASSACHUSETTS
, ss: May 15 1997
Then personally appeared the above-named Xxxxx Xxxxxx, the CFO of
Xxxxxxx Systems U.S., Inc. and acknowledged the foregoing to be the free act and
deed of said corporation, before, me,
/s/Xxxxxxxxx Xxxxx Xxxxx
Notary Public
My Commission Expires: Oct. 9 2003
ACKNOWLEDGMENT
CORPORATE ACKNOWLEDGMENT
STATE OF: Massachusetts
COUNTY OF: Middlesex
On this 15 day of May, 1997, before me, a Notary Public in and for said State,
personally appeared Xxxxx Xxxxxx, known to me to be the person described in and
who executed such instrument as Chief Financial Officer of Xxxxxxx Systems US,
Inc. , a Delaware corporation, and who acknowledged the execution of such
instrument as such officer for and on behalf of and as the free act and deed of
such corporation, and the seal affixed thereto is the true and genuine corporate
seal of such corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year set forth above.
/s/Xxxxxxxxx Xxxxx Xxxxx
Notary Public
My Commission Expires: Oct. 9 2003
