EXHIBIT 10.14
SUBLEASE
between
XXXXXX TECHNOLOGY PARK LLC
as Landlord
and
LIFEF/X, INC.
as Tenant
of
Premises at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
March 16, 2000
TABLE OF CONTENTS
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Page
1. Definitions....................................................... 2
2. Premises and Term; Master Lease................................... 5
2.1 Premises; Master Lease............................................ 5
2.2 Appurtenant Rights................................................ 6
2.3 Landlord's Reservations........................................... 6
2.4 Parking........................................................... 6
2.6 Commencement Date................................................. 6
2.9 Preparation of the Premises....................................... 7
2.10 Prior Access...................................................... 9
3. Rent and Other Payments; Security Deposit......................... 9
3.1 Annual Fixed Rent................................................. 9
3.2 Real Estate Taxes................................................. 9
3.3 Operating Expenses................................................ 11
3.4 Directly Metered Utility Charges.................................. 13
3.5 Above-standard Services........................................... 13
3.6 No Offsets........................................................ 13
3.7 Rent.............................................................. 13
3.8 Security Deposit.................................................. 13
4. Alterations....................................................... 16
4.1 Consent Required for Tenant's Alterations......................... 16
4.2 Ownership of Alterations.......................................... 16
4.3 Construction Requirements for Alterations......................... 16
4.4 Payment for Tenant Alterations.................................... 17
4.5 As Is............................................................. 18
5. Responsibility for Condition of Premises; Landlord's Services..... 18
5.1 Maintenance and Repair Obligations of the Landlord................ 18
5.2 Maintenance and Repair Obligations of Tenant; Surrender........... 18
5.3 Landlord's Services; Landlord Delay; Interruption................. 19
5.4 ADA Compliance.................................................... 19
5.5 Signage........................................................... 19
5.6 Trash Removal..................................................... 20
6. Certain Covenants................................................. 20
6.1 Permitted Uses.................................................... 20
6.2 Laws and Regulations and Other Compliance; Liens.................. 20
6.3 Rules and Regulations............................................. 21
6.4 Safety Compliance................................................. 21
6.5 Landlord's Entry.................................................. 21
6.6 Personal Property Tax............................................. 22
6.7 Assignment and Subleases.......................................... 22
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7. Indemnity and Insurance........................................... 23
7.1 Tenant's Indemnity................................................ 23
7.2 Liability Insurance............................................... 23
7.3 Tenant's Risk..................................................... 25
7.4 Property Insurance................................................ 25
7.5 Waiver of Subrogation............................................. 26
7.6 Indemnity Procedural Provisions................................... 26
8. Casualty and Eminent Domain....................................... 27
8.1 Restoration Following Casualties.................................. 28
8.2 Termination Elections............................................. 28
8.3 Casualty at Expiration of Lease................................... 29
8.4 Eminent Domain.................................................... 29
8.5 Rent After Casualty or Taking..................................... 30
8.6 Taking Award...................................................... 30
9. Default........................................................... 30
9.1 Tenant's Default.................................................. 30
9.2 Damages........................................................... 31
9.3 Cumulative Rights................................................. 32
9.4 Landlord's Self-help.............................................. 32
9.6 Late Charges and Interest on Overdue Payments..................... 32
9.7 Consequential Damages............................................. 33
10. Environmental Matters............................................. 33
10.1 Tenant's Use of Hazardous Materials............................... 33
10.2 Tenant's Environmental Indemnification............................ 34
10.3 Landlord's Environmental Indemnification.......................... 35
11. Mortgagees' and Ground Lessors' Rights............................ 36
11.1 Subordination, Non-Disturbance and Attornment..................... 36
11.2 Estoppel Certificates............................................. 36
12. Miscellaneous..................................................... 37
12.2 Notices........................................................... 37
12.3 Successors and Limitation on Liability of the Landlord............ 37
12.4 Waivers........................................................... 38
12.5 Acceptance of Partial Payments of Rent............................ 38
12.6 Interpretation and Partial Invalidity............................. 38
12.7 Quiet Enjoyment................................................... 38
12.8 Brokerage......................................................... 39
12.9 Surrender of Premises and Holding Over............................ 39
12.10 Exhibits.......................................................... 39
12.11 Master Lease...................................................... 40
12.12 Financial Information............................................. 40
EXHIBIT A Basic Lease Terms............................................ 41
EXHIBIT B Legal Description of the Land................................ 43
EXHIBIT C Site Plan.................................................... 44
EXHIBIT D Floor Plan................................................... 45
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EXHIBIT E Rules and Regulations........................................ 46
EXHIBIT F Exclusions from Operating Expenses........................... 52
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SUBLEASE
THIS SUBLEASE (this "Lease") is entered into as of March 16, 2000 by and
between XXXXXX TECHNOLOGY PARK LLC, a Delaware limited liability company(the
"Landlord"), and LIFEF/X, INC., a Nevada corporation (the "Tenant").
In consideration of the mutual covenants herein set forth, the Landlord and
the Tenant do hereby agree to the terms and conditions set forth in this Lease.
1. Definitions. The following terms have the meanings indicated or referred
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to below.
"Acceptance Notice" - See Section 2.8.
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"Additional Rent" means all charges payable by the Tenant pursuant to this
Lease other than Annual Fixed Rent, including, without implied limitation, the
Tenant's Tax Expense Allocable to the Premises payable pursuant to Section 3.2;
the Tenant's Operating Expenses Allocable to the Premises payable pursuant to
Section 3.3; and amounts payable for special services pursuant to Section 3.5.
"Annual Fixed Rent" - See Exhibit A.
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"Base Building Systems" - See Section 5.2.
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"Buildings" means, collectively, the three presently existing buildings on
the Land known as Xxxxxxxx X0, Xxxxxxxx X0 xxx Xxxxxxxx X0, respectively, as
shown on the Site Plan, and any additions to existing Buildings or any other
buildings constructed in the future on the Land, other than accessory
structures.
"Commencement Date" - See Section 2.6.
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"Environment" shall mean soil, surface waters, groundwaters, land, stream
sediments, surface or subsurface strata, ambient air, and any environmental
medium.
"Environmental Laws" means all federal, state or local laws, ordinances,
rules, regulations, or policies whether now or hereafter enacted, applicable to
the Premises and/or the Tenant's use or occupancy of the Premises or the
Tenant's activities on or about the Premises, and governing the use, clean-up,
storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of Hazardous Materials, including, without limitation:
the Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C. Sec. 9601, et seq.) as amended by the Superfund Amendment and
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Reauthorization Act; the Solid Waste Disposal Act (42 U.S.C. Sec. 6901 et seq);
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the Hazardous Materials Transportation Act (49 U.S.C. Sec. 1801, et seq.); the
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Toxic Substances Control Act; the Resource Conservation and Recovery Act; the
Federal Clean Water Act; Massachusetts General Laws Chapter 21C and 21E;
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and any amendments thereto and any regulations adopted and publications
promulgated pursuant thereto, or any other environmental or health and safety-
related law, regulation, rule, ordinance, or by-law at the federal, state, or
local level, applicable to the Premises and/or Tenant's use or occupancy of the
Premises or the Tenant's activities on or about the Premises, whether existing
as of the date hereof, previously enforced, or subsequently enacted.
"External Causes" means any of the following: Acts of God, war, civil
commotion, fire, flood or other casualty, strikes or other extraordinary labor
difficulties, shortages of labor or materials or equipment in the ordinary
course of trade, government order or regulations or other cause not reasonably
within the control of the party in question, and not due to the fault or neglect
of such party, excluding, however, inability to pay obligations as they become
due.
"Hazardous Materials" means any pollutants, contaminants, hazardous wastes,
toxic substances, oil or petroleum products, or hazardous substances as defined
in or pursuant to any Environmental Law, including, without limitation, any
asbestos, PCB's, any toxic, noxious, or radioactive substances, methane,
volatile hydrocarbons, industrial solvents, petroleum products, or any other
materials or substances which could cause or constitute a health, safety or
other environmental hazard to any person or property.
"Interest Rate" means the variable rate of interest from time to time
announced by The BankBoston, N.A. (or its successor) as its base rate or, if
such rate can no longer be determined, the variable rate of interest from time
to time announced by a major commercial bank with administrative offices in
Boston, Massachusetts selected by the Landlord as its base or prime rate.
"Land" means the land situated in Newton, Massachusetts, described in
Exhibit B.
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"Landlord Responsible Parties" - See Section 7.1.
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"Landlord's Address" - See Exhibit A.
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"Landlord's Work" - See Section 2.9.
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"Lease Year" means each period of one year during the Term commencing on
the Commencement Date or on any anniversary thereof, or, if the Commencement
Date does not fall on the first day of a calendar month, the first Lease Year
shall consist of the partial calendar month following the Commencement Date and
the succeeding 12 full calendar months, and each succeeding Lease Year shall
consist of a one-year period commencing on the first day of the calendar month
following the calendar month in which the Commencement Date fell.
"Major Alterations" - See Section 4.1.
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"Master Landlord" means the Lessor from time to time under the Master
Lease.
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"Master Lease" - means that certain Lease between Second Bromfield
Properties, Inc., as Lessor, and Honeywell Inc., as Lessee, of the Property
dated as of July 25, 1967, and under which, as of the date of this Lease, the
Lessor is Wellford Corp., and the Lessee is Landlord. A copy of the Master
Lease is attached hereto as Exhibit G. A copy of the Assignment and Assumption
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Agreement by which Landlord became the Lessee under the Master Lease is also
attached hereto as part of Exhibit G.
"Minor Alterations" - See Section 4.1.
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"Permitted Uses" - See Exhibit A.
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"Premises" means THAT PORTION OF Building N1, as shown on the floor plan
attached thereto as Exhibit D, consisting of approximately 10,000 square feet of
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Rentable Floor Area.
"Property" means the Land and the Buildings.
"Property Common Areas" means the parking lot, walkways, driveways,
sidewalks and landscaped areas located on those portions of the Property outside
of the Buildings from time to time, and those portions of the Buildings, if any,
which serve the Property as a whole from time to time, such as but not limited
to any cafe or cafeteria and those areas required for access to the Premises.
In no event shall the Property Common Areas include any portion of the Property
that is under construction.
"Release" shall mean any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing, or
dumping into the Environment.
"Rentable Floor Area" means the area within the Buildings pursuant to which
rental calculations are made.
"Rules and Regulations" - See Section 6.3.
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"Security Deposit" - See Section 3.8.
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"Site Plan" means the site plan of the Property attached hereto as Exhibit
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C.
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"Tenant Responsible Parties" means the Tenant and Tenant's agents,
contractors, licensees, invitees, servants, employees, sublessees, assignees and
others for whom the Tenant is legally responsible.
"Tenant's Address for Notices" - See Exhibit A.
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"Tenant's Plans" - See Section 2.9.
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"Tenant's Proportionate Share" - The Rentable Floor Area of the Premises,
which is 10,000 square feet, divided by the total Rentable Floor Area of the
Buildings, agreed to be currently 160,042, with the resulting Tenant's
Proportionate Share at present of Six and Twenty Five /100 percent (6.25%).
"Tenant's Work" - See Section 2.9.
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"Term" means the term as set forth in Exhibit A.
"Threat of Release" shall mean a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the Environment which may
result from such Release.
2. Premises and Term; Master Lease.
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2.1 Premises; Master Lease. The Landlord hereby leases to the Tenant,
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and the Tenant hereby leases from the Landlord, for the Term, the Premises. As
of the Commencement Date, the basic systems serving the Premises - plumbing,
electrical, HVAC - shall be in good operating condition. The Tenant
acknowledges that there have been no representations or warranties made by or on
behalf of the Landlord with respect to the Premises or the Property, or with
respect to the suitability of either of them for the conduct of the Tenant's
business, except for the representations and warranties specifically set forth
in this Lease, if any. Tenant shall be entitled to have access to the Premises
and to occupy the same twenty-four (24) hours per day, seven (7) days per week
throughout the Term.
This Lease is subject and subordinate to all the provisions of the Master
Lease and the Tenant shall not perform any act or omit to perform any act that
will violate any of the provisions of the Master Lease. A true and complete copy
of the Master Lease is attached hereto as Exhibit G. The Landlord agrees to
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exercise all extension options under the Master Lease necessary to keep the
Master Lease in full force and effect throughout the term of this Lease, and not
to exercise any right to terminate the Master Lease such that the Master Lease
will terminate at any time during the term of this Lease for any reason,
including, without limitation, on account of a casualty or condemnation event,
unless pursuant to the terms of this Lease the Landlord has the right to
terminate this Lease on account of such reason or event. In amplification and
not in limitation of the foregoing, in no event shall the Landlord exercise the
right of termination set forth in Article 13 of the Master Lease except as
expressly permitted in Section 12.11 hereof such that the Master Lease will
terminate at any time during the term of this Lease. If the Master Lease
terminates, this Lease shall terminate, and the parties shall be relieved from
all liabilities and obligations under this Lease; provided, however, that if
this Lease terminates as a result of a default of one of the parties under this
Lease or the Master Lease or both, the defaulting party shall be liable to the
non-defaulting party for all damage suffered by the non-defaulting party as a
result of the termination, excluding any indirect or consequential damages (by
way of example and not by way of limitation, in case of Landlord's default,
Tenant may be entitled to recover damages such as for relocation costs and
rental differential, but not for loss of business profits); provided, further,
that if the Master Lease terminates as a result of the acquisition of the
ownership of the fee interest in the Property by the Landlord, notwithstanding
the foregoing, this Lease shall remain in full force and effect, subject to the
remaining terms and conditions hereof,
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and the Landlord shall recognize the Tenant as the tenant under this Lease, and
the Tenant shall attorn to the Landlord as landlord under this Lease.
2.2 Appurtenant Rights. The Tenant shall have, as appurtenant to the
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Premises, the nonexclusive right to use the Property Common Areas in common with
others, subject to the Rules and Regulations.
2.3 Landlord's Reservations. The Landlord expressly reserves the right
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from time to time to alter or relocate any Property Common Area. Landlord
agrees not to reduce the existing number of parking spaces on-site as of the
date hereof by more than ten (10%) percent, nor to materially diminish access
and egress on foot and by vehicle to and from Xxxxxxx Street as presently
existing but may change the present accesses so long as, as changed, there
remains reasonably sufficient and convenient accesses, taking into account
suitable requirements for the Property. The Landlord shall give the Tenant
reasonable prior notice (except in the event of emergency) before exercising its
rights under this Section 2.3 which require access to and/or through the
Premises, and the Landlord shall, in any event, exercise diligent, commercially
reasonable efforts to minimize any interference with the Tenant's use of the
Premises and to avoid undue interference with the Tenant's use of the Property
Common Areas in connection with exercising its rights under this Section 2.3.
In no event shall the Premises be decreased in size or otherwise altered in a
fashion that would adversely affect the Tenant's use thereof as a result of the
Landlord's exercise of such rights. The Landlord further expressly reserves the
right to access to and/or through the Premises upon no less than 24 hour prior
notice (except that no prior notice shall be required in an emergency) for
purposes of inspecting the Premises and otherwise exercising the Landlord's
rights as granted hereunder and performing any obligations which have been
undertaken by the Landlord under this Lease, provided that the Landlord uses
diligent, commercially reasonable efforts to minimize interference with the
Tenant's use of the Premises in connection therewith.
2.4 Parking. The Landlord shall provide not less than 32 parking spaces
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for cars for use at all times by the Tenant's employees, business invitees and
visitors in the parking lots on the Land. The Tenant's use of the parking lots
shall be in common with the Landlord and others entitled thereto from time to
time, and the Tenant's parking spaces shall not be reserved spaces. The Tenant
agrees that it and all persons claiming by, through and under it, shall at all
times abide by the Rules and Regulations which pertain to the use of the parking
facilities. Tenant acknowledges that approximately seventeen (17) spaces
adjacent to the Aspect Medical space are reserved for the exclusive use of
Aspect Medical. Further, Landlord expressly reserves the right to give exclusive
use of up to seventy-five (75) parking spaces elsewhere in the Office Park for
use by other tenants of the Office Park from time to time for their employees
and business invitees.
2.5 Intentionally Omitted
2.6 Commencement Date. The commencement date of the Term (the
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"Commencement Date") shall be March 15, 2000 or such earlier date as the Tenant
may occupy any substantial portion of the Premises for the conduct of its
business as opposed to preparing the Premises for occupancy.
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2.7 Intentionally Omitted
2.8 Intentionally Omitted
2.9 Preparation of the Premises.
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(a) Landlord's Work. Promptly following the execution of this Lease, the
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Landlord, at the Landlord's expense, shall, with Tenant's reasonable
collaboration, repaint the walls which currently have painted surfaces and
shampoo the carpets, and construct a vestibule inside the front of the first
floor space of the Building as part of access to Tenant's Premises ("Landlord's
Work"). The Landlord shall obtain all necessary permits and other governmental
approvals, if any, in connection with the Landlord's Work prior to commencement
of the Landlord's Work. Promptly after execution of this Lease, the Landlord
shall commence and exercise reasonable efforts to complete the Landlord's Work
on or before the Commencement Date, subject to External Causes. If the
Landlord's Work is not completed by the Commencement Date, the Tenant shall so
notify Landlord whereupon Landlord shall be permitted up to fourteen (14)
additional days within which to complete Landlord's Work, except for the
vestibule which Landlord shall exercise best efforts to complete within sixty
(60) days after the Commencement Date. If it is not then completed, Tenant
shall have the right to terminate this Lease by giving notice to the Landlord on
or before the Commencement Date of the Tenant's election so to do, and this
Lease shall cease and come to an end without further liability or obligation on
the part of either party. Notwithstanding anything to the contrary contained
herein, Tenant shall not be responsible for payment of Annual Fixed Rent or
Additional Rent, until completion of such of Landlord's Work which consists of
shampooing rugs and repainting, as long as Tenant does not take occupancy of any
of the Premises prior to completion of such repainting and shampooing. Such
right of termination and the right not to pay Annual Fixed Rent and Additional
Rent, until completion thereof unless Tenant commences occupancy of any of the
Premises prior to such completion, shall be the Tenant's sole and exclusive
remedy at law and in equity for the Landlord's failure so to complete the
Landlord's Work on or before the Commencement Date. The Tenant shall give the
Landlord notice, not less than thirty (30) days after the later of (i) the
Commencement Date or (ii) the completion of the Landlord's work, of any respects
in which the Landlord's Work has not been performed fully, properly and in
accordance with the terms of this Lease. Except as identified in any such
notice from the Tenant to the Landlord, the Tenant shall have no right to make
any claim that the Landlord has failed to perform any of the Landlord's Work
fully, properly and in accordance with this Lease or to require the Landlord to
perform any further Landlord's Work.
(b) Tenant's Plans. Tenant may currently be preparing, at its sole cost
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and expense, plans and specifications for improvements Tenant desires to make in
connection with Tenant's occupancy of the Premises (the "Tenant's Plans"). If
so, Tenant's Plans shall be submitted to Landlord for its approval. Any
disapproval by the Landlord of Tenant's Plans shall be accompanied by a
reasonably specific statement of reasons therefor. At the Tenant's sole cost and
expense, the Tenant shall cause the Tenant's Plans to be revised in a manner
sufficient to remedy the Landlord's reasonable objections and/or respond to the
Landlord's reasonable concerns and for such revised plans to be redelivered to
the Landlord, and the Landlord shall either approve or
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disapprove the Tenant's revised plans within two (2) Business Days following the
date of submission. If the Landlord shall again disapprove Tenant's Plans, the
Tenant shall revise such plans and redeliver them to the Landlord pursuant to
the prior two sentences until the Tenant's Plans have been approved by the
Landlord. The Tenant's Plans shall be stamped by a Massachusetts-registered
architect and engineer, such architect and engineer being subject to the
Landlord's reasonable approval, which shall not be unreasonably withheld or
delayed, and shall comply with all applicable laws, ordinances and regulations
(including, without limitation, the applicable requirements of the Americans
with Disabilities Act of 1990, and the regulations promulgated thereunder, it
being understood that Tenant shall be responsible only for compliance with ADA
to the extent that non-compliance would result by virtue of Tenant's Work as
distinguished from the state of the Premises at the time of delivery by
Landlord) and shall be in a form satisfactory to appropriate governmental
authorities responsible for issuing permits, approvals and licenses required for
construction. The Landlord will not approve any alterations or additions
requiring unusual expense to readapt the Premises to normal office, research and
development or laboratory use on termination of this Lease or increasing the
cost of insurance on the Building, unless the Tenant first gives assurances
acceptable to the Landlord for payment of such increased cost and that such re-
adaptation will be made prior to such termination without expense to the
Landlord. The approval of any Tenant's Plans shall not impose upon the Landlord
any responsibility or liability whatsoever to the Tenant. In connection with its
approval of the Tenant's Plans, Landlord shall specify in writing those portions
of Tenant's work which must be removed at the expiration of the Term of this
Lease as part of Tenant's surrender and yield-up of the Premises.
(c) Tenant's Work. Promptly after approval of Tenant's Plans, the Tenant
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shall commence and exercise all reasonable efforts to complete the work
specified therein ("Tenant's Work"). All Tenant's Work shall be completed in
accordance with the approved Tenant's Plans and the requirements for alterations
and improvements made by or on behalf of Tenant set forth in this Lease. Copies
of all permits and approvals required for Tenant's Work shall be furnished to
the Landlord promptly upon receipt thereof. Tenant's Work shall be performed by
a general contractor approved by the Landlord, which approval shall not be
unreasonably withheld or delayed, under a written construction contract
providing for payment, performance and xxxx xxxxx in the full amount of the
contract sum; provided, however, that the Tenant may have Tenant's Work
competitively bid by several general contractors approved in advance by the
Landlord which approval shall not be unreasonably withheld or delayed and the
Tenant may select among such general contractors the general contractor that
will perform Tenant's Work. The approval by the Landlord of the Tenant's
general contractor shall not impose upon the Landlord any responsibility or
liability whatsoever to the Tenant as a result of, or arising out of, the
defaults or other acts or omissions of the general contractor. A copy of all
required bonds and certificates of insurance required by this Lease shall be
furnished to the Landlord prior to commencement of construction and installation
of Tenant's Work. In addition, the Landlord may monitor the progress of
Tenant's Work, including, without limitation, attend any weekly or other
periodic job meetings. The Landlord shall provide the Tenant with no less than
twenty four hours prior notice before it enters the Premises to review Tenant's
Work, except in the event of an emergency, when no such notice shall be
required. Any review and monitoring of Tenant's Work by the Landlord shall not
impose upon the Landlord any responsibility or liability whatsoever to the
Tenant as a result of, or arising out of, Tenant's Work. Within forty-five (45)
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days of completion of any Tenant's Work in accordance with the approved plans
and specifications, the Tenant shall provide to the Landlord "as-built" plans
showing precisely how and where Tenant's Work was actually installed. The Tenant
shall provide the Landlord with copies of any certificates of occupancy for any
Tenant's Work that requires a certificate of occupancy reasonably promptly after
completion of any portion of Tenant's Work. Nothing herein shall be construed as
permitting the Tenant to occupy all or any portion of the Premises for which the
Tenant has not obtained a certificate of occupancy or otherwise failed to comply
with legal requirements as set forth herein.
2.10 Prior Access. Tenant shall have access to the Premises effective as
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of the date this Lease has been executed by all parties thereto for the purpose
of making alterations and furniture and equipment installation; provided,
however, that any entry onto any portion of the Property or the Premises by the
Tenant shall be subject to all of the terms and provisions of this Lease other
than the provisions requiring the Tenant to pay Annual Fixed Rent, Tenant's Tax
Expense Allocable to the Premises and Tenant's Operating Expenses Allocable to
the Premises, or any other Additional Rent none of which shall be payable for
the period prior to the Commencement Date. However, Tenant shall pay for all
utility charges incurred in connection with the Premises commencing as of no
later than the Commencement Date or such earlier date as of which it commences
to perform improvement work in the Premises, which utilities shall include, ,
but not be limited to, electricity, HVAC and gas charges, if any..
3. Rent and Other Payments; Security Deposit.
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3.1 Annual Fixed Rent. From and after the Commencement Date, the Tenant
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shall pay, without notice or demand, monthly installments of one-twelfth
(1/l2th) of the Annual Fixed Rent in effect and applicable to the Premises in
advance on the first day of each calendar month during the Term (except for any
monthly rental payment due for any partial month at the beginning of the Term,
which shall be paid on the Commencement Date) for each full calendar month of
the Term and of the corresponding fraction of said one-twelfth (1/l2th) for any
fraction of a calendar month at the beginning or end of the Term. The Annual
Fixed Rent applicable to the Premises during the Term shall be as set forth in
Exhibit A.
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3.2 Real Estate Taxes. From and after the Commencement Date, during the
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Term, the Tenant shall pay to the Landlord, as Additional Rent, Tenant's Tax
Expense Allocable to the Premises (as such term is hereinafter defined), in
accordance with this Section 3.2. The capitalized terms used in this Section
3.2 are defined as follows:
(a) "Tax Year" means the 12-month period beginning July 1 each year or if
the appropriate governmental tax fiscal period shall begin on any date other
than July 1, such other date. The "Base Tax Year" shall be the fiscal year 2000.
(b) "Tenant's Tax Expense Allocable to the Premises" means, for any Tax
Year, the Real Estate Taxes for the Tax Year in excess of the Base Tax Year,
multiplied by Tenant's Proportionate Share.
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(c) "Real Estate Taxes" means all taxes and special assessments payable by
Landlord under Section 1(a) of the Master Lease of every kind and nature
assessed by any governmental authority on the Property and reasonable expenses
of any proceedings for abatement of such taxes including appeals thereof, less
the amount of any abatement or refund received with respect to any period during
the Term (or less a prorated portion thereof, if only a portion of the period is
within the Term). The amount of special taxes or special assessments to be
included shall be limited to the amount of the installment (plus any interest
thereon) of such special tax or special assessment (which shall be payable over
the longest period permitted by law) required to be paid during the Tax Year in
respect of which such taxes are being determined. There shall be excluded from
such taxes all income, estate, succession, inheritance, excess profit, franchise
and transfer taxes; provided, however, that if at any time during the Term the
present system of ad valorem taxation of real property shall be changed so that
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in lieu of the whole or any part of the ad valorem tax on real property, there
shall be assessed on the Landlord a capital levy or other tax on the gross rents
received with respect to the Property, or a federal, state, county, municipal,
or other local income, franchise, excise or similar tax, assessment, levy or
charge (distinct from any now in effect) based, in whole or in part, upon any
such gross rents, then any and all of such taxes, assessments, levies or
charges, to the extent so based, shall be deemed to be included within the term
"Real Estate Taxes."
Payments by the Tenant on account of the Tenant's Tax Expense Allocable to
the Premises shall be made monthly at the time and in the fashion herein
provided for the payment of Annual Fixed Rent and shall be equal to one-twelfth
(1/12) of the Tenant's Tax Expense Allocable to the Premises for the current Tax
Year as reasonably estimated by the Landlord.
Annually, the Landlord shall render to the Tenant a statement in reasonable
detail showing for the preceding calendar year or fraction thereof, as the case
may be, Real Estate Taxes on the Property and any abatements or refunds of such
taxes received during such period with respect to any period included wholly or
partially within the Term, together with, copies of all applicable tax bills for
the Property, and the Landlord's calculations of Tenant's Tax Expense Allocable
to the Premises. The Landlord shall to render the statement not later than one
hundred twenty (120) days after the end of each calendar year or fraction
thereof during the Term or fraction thereof at the end of the Term. Expenses
incurred in obtaining any tax abatement or refund may be charged against such
tax abatement or refund before the adjustments are made for the Tax Year, unless
previously included in Real Estate Taxes used to calculate Tenant's Tax Expense
Allocable to the Premises. If at the time such statement is rendered it is
determined with respect to any Tax Year that the Tenant has paid (i) less than
the Tenant's Tax Expense Allocable to the Premises or (ii) more than the
Tenant's Tax Expense Allocable to the Premises, then, in the case of (i) the
Tenant shall pay to the Landlord, as Additional Rent, within thirty (30) days of
such statement the amount of such underpayment and, in the case of (ii) the
Landlord shall credit the amount of such overpayment against the monthly
installments of the Tenant's Tax Expense Allocable to the Premises next
thereafter coming due or, if such amount exceeds a monthly installment, then the
balance shall be credited against the next monthly installments of Annual Fixed
Rent. If the Term has expired and the Tenant has no further obligation to the
Landlord, however, the Landlord shall refund such overpayment to the Tenant
within thirty (30) days. To the extent that Real Estate Taxes may be payable to
the taxing authority in installments
10
with respect to periods less than a Tax Year, the statement to be furnished by
the Landlord shall be rendered and payments made on account of such
installments.
Upon Tenant's written request submitted to Landlord no more often than once
in any three year period, the Landlord shall initiate a tax abatement proceeding
and diligently prosecute the same to completion or settlement. If, as the
result of any tax abatement proceeding (or for any other reason), Real Estate
Taxes shall be reduced for any Tax Year, the Tenant's liability for the Tenant's
Tax Expense Allocable to the Premises for such Tax Year shall be recomputed so
as to reflect the net amount of the reduction remaining after deducting the cost
to the Landlord, if any, of obtaining the same. If no such reduction for any
Tax Year results, the reasonable cost incurred by Landlord in pursuing any such
abatement shall be included in Operating Costs for the year in which such costs
are incurred.
3.3 Operating Expenses. From and after the Commencement Date, during the
------------------
Term the Tenant shall pay to the Landlord, as Additional Rent, the Tenant's
Operating Expenses Allocable to the Premises, as hereinafter defined, in
accordance with this Section 3.3. The capitalized terms used in this Section
3.3 are defined as follows:
(a) "Tenant's Operating Expenses Allocable to the Premises" means, for any
calendar year, the Operating Expenses for the Property for such calendar year in
excess of the Operating Expenses for the Property for calendar year 2000,
multiplied by Tenant's Proportionate Share; provided, however, that with respect
to any Operating Expense solely allocable to Building N1 and not to either of
the other Buildings, Tenant's Operating Expenses Allocable to the Premises shall
include 18.87% of such Operating Expense allocated to the Premises, and with
respect to any Operating Expense reasonably allocable to either or both of the
other Buildings and not to the Premises, Tenant's Operating Expenses allocable
to the Premises shall not include any of such Operating Expense for the other
Buildings.
(b) "Operating Expenses" means the Landlord's cost of operating, cleaning,
maintaining and repairing the Property, which shall include, without limitation:
the cost of providing or causing to be provided the services to be provided
hereunder; premiums for insurance with respect to the property which shall
include any and all insurance that Landlord shall deem to be reasonable,
including, but not limited to, all risk, general liability, excess liability,
rent loss, business interruption, boiler and equipment, and flood and
earthquake; the amount deductible from any insurance claim of the Landlord (but
only in the event of an actual claim paid and settled); compensation and all
fringe benefits, worker's compensation insurance premiums and payroll taxes paid
to, for or with respect to all persons directly engaged in operating,
maintaining or cleaning the Property, including the parking facilities located
thereon and such expenses shall be fairly allocated in the event any such person
works on other sites as well as on the Premises ; landscaping and maintenance;
steam, water, sewer, gas, oil and electricity, and other utility charges,
excluding such utility charges either separately metered or separately
chargeable to tenants or Tenant whether for additional or special services or
otherwise; costs of building and cleaning supplies; rental costs for equipment
used in operating, cleaning, maintaining or repairing the Property; snow
removal; security, if any; cost of maintenance, repairs and replacements (other
than repairs and replacements reasonably collectible from contractors under
guarantees), including, without limitation, capital expenditures
11
for repairs, replacements and improvements; payments under service contracts
with independent contractors for services provided in connection with the
operation, cleaning, maintenance, and repair of the Property, but only to the
extent that such expenses would otherwise be properly included in Operating
Expenses hereunder; reasonable management fees; and all other reasonable
expenses paid in connection with operation, cleaning, maintenance and repair of
the Property. Notwithstanding the foregoing, Operating Expenses shall not
include the items specified in Exhibit F.
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Payments by the Tenant on account of the Tenant's Operating Expenses
Allocable to the Premises shall be made monthly at the time and in the fashion
herein provided for the payment of Annual Fixed Rent. The amount so to be paid
to the Landlord shall be an amount from time to time reasonably estimated by the
Landlord to be sufficient to aggregate a sum equal to the Tenant's Operating
Expenses Allocable to the Premises for each calendar year.
Annually, the Landlord shall render to the Tenant a statement in reasonable
detail (including with respect to the allocation of Operating Expenses for the
Property among the Buildings and Property Common Areas expense), showing for the
preceding calendar year or fraction thereof, as the case may be, the Operating
Expenses for the Property and the Tenant's Operating Expenses Allocable to the
Premises. The Landlord shall deliver the statement not later than one hundred
twenty (120) days after the end of each calendar year or fraction thereof during
the Term or fraction thereof at the end of the Term. If at the time such
statement is rendered it is determined with respect to any calendar year that
the Tenant has paid (i) less than the Tenant's Operating Expenses Allocable to
the Premises or (ii) more than the Tenant's Operating Expenses Allocable to the
Premises, then, in the case of (i) the Tenant shall pay to the Landlord, as
Additional Rent, within thirty (30) days of such statement the amounts of such
underpayment and, in the case of (ii) the Landlord shall credit the amount of
such overpayment against the monthly installments of the Tenant's Operating
Expenses Allocable to the Premises next thereafter coming due or, if such amount
exceeds a monthly installment, then the balance shall be credited against the
next monthly installments of Annual Fixed Rent. If the Term has expired and the
Tenant has no further obligation to the Landlord, however, the Landlord shall
refund such overpayment to the Tenant within thirty (30) days. The Tenant, its
accountants and representatives, shall have the right, at the Tenant's expense,
on not less than five (5) business days' prior written request by the Tenant to
the Landlord, to examine, audit and copy (at the Tenant's expense) at the
Landlord's offices, as long as such offices are located within one hundred (100)
miles of the Premises, during normal business hours, the Landlord's books and
records pertaining to the Operating Expenses and/or Real Estate Taxes for the
Property, to enable the Tenant to verify the accuracy of the Operating Expenses
and/or Real Estate Taxes for the Property shown on a Landlord's statement for
the prior year. If Landlord's offices are not within said 100 mile radius,
Landlord shall deliver to Tenant copies of all such books and records pertaining
to the Operating Expenses at issue. Any such audit shall be conducted within
120 days from Tenant's receipt of Landlord's statement showing in reasonable
detail the expenses incurred during the preceding calendar year or fraction
thereof. The Landlord agrees to keep its books in accordance with generally
accepted accounting principles consistently applied and in such manner as shall
reasonably make possible the verification of the Operating Expenses and Real
Estate Taxes for the Property.
12
3.4 Directly Metered Utility Charges. During the Term, the Tenant shall
--------------------------------
pay on or before the date the same are due directly to the provider of the
service, all separately metered charges for steam, heat, gas, water, sewer, fuel
and other services and utilities furnished to the Premises other than
electricity for lights and plugs. Electricity consumed by Tenant for lights and
plugs shall be billed to Tenant at a flat rate of one dollar ($1.00) per square
foot per year payable in monthly installments as set forth on Exhibit A hereto.
If any of such services are not separately metered to Tenant, then Tenant shall
pay its pro rata share, as reasonably determined by the Landlord, of such
services within ten (10) days after receiving invoices therefor from Landlord.
3.5 Above-standard Services. If the Tenant requests and the Landlord
-----------------------
elects to provide any services to the Tenant in addition to those expressly
provided for herein, the Tenant shall pay to the Landlord, as Additional Rent,
the amount billed by the Landlord for such services at the Landlord's standard
rates as from time to time in effect and reasonably established. If the Tenant
has requested that such services be provided on a regular basis, the Tenant
shall, if requested by the Landlord, pay for such services at the time and in
the fashion in which Tenant's Operating Expenses Allocable to the Premises are
payable. Otherwise, the Tenant shall pay for such additional services within
thirty (30) days after receipt of an invoice from the Landlord. Concurrently
with the execution of this Lease, Landlord shall provide Tenant with a list of
the amount of the charges for such additional services.
3.6 No Offsets. Annual Fixed Rent and Additional Rent shall be paid by the
----------
Tenant without any offset, abatement or deduction whatsoever.
3.7 Rent. The total rent payable under this Lease shall be deemed to
----
include the aggregate of (i) the Annual Fixed Rent, and (ii) all other rent,
charges, fees, and costs allocable to Tenant pursuant to the terms of this
Lease.
3.8 Security Deposit.
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(a) In this Section 3.8, the following definitions apply:
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"Original Amount" means $217,500.
---------------
"Letter of Credit" means any original Letter of Credit, and any
----------------
substitute, replacement, or additional letter of credit.
(b) Simultaneously with the execution of this Lease, the Tenant shall
deliver to and deposit with the Landlord a security deposit (the "Security
Deposit") consisting of either (i) cash in the Original Amount or (ii) an
irrevocable, unconditional, Letter of Credit in the face amount equal to the
Original Amount running to the Landlord as the sole beneficiary, which Letter of
Credit shall in all ways be satisfactory to the Landlord in its reasonable
discretion. Such Letter of Credit shall require, in addition to the usual
certification, the Special Certification as defined at the end of this
subparagraph (b). Any Letter of Credit shall have a stated duration of and
shall be effective for at least one year with provision for automatic successive
annual one-year extensions during the Lease Term and for sixty days thereafter
provided that Tenant may replace
13
said letter of credit by no later than thirty days before its termination. If
Landlord has neither received a written notice of renewal from the issuing bank
nor a replacement Letter of Credit satisfying the requirements hereof by no
later than thirty (30) days before termination, then Landlord may draw down the
full amount covered by said Letter of Credit and may hold said amount as a cash
Security Deposit hereunder, until it receives a satisfactory replacement Letter
of Credit. Unless the Security Deposit consists of cash, the Tenant shall keep
the Letter of Credit in force throughout the Lease Term and for sixty days after
the expiration date or the earlier termination of the Term, except that if such
earlier termination is based on the Tenant's default, the Tenant shall keep the
Letter of Credit in force until sixty days after the date when the Term would
have expired had it not been earlier terminated. Unless the Security Deposit
consists of cash, the Tenant shall deliver to the Landlord a renewal Letter of
Credit no later than thirty days prior to the expiration date of any Letter of
Credit issued under this Section 3.8, and if the Tenant fails to do so, the
-----------
Landlord may draw the entire amount of the expiring Letter of Credit and hold
the proceeds in cash as the Security Deposit. If the Security Deposit consists
of a Letter of Credit, the Letter of Credit shall be issued by a Boston
commercial bank (or other bank satisfactory to and approved by the Landlord)
which has capital assets of at least $250,000,000 and capital reserves of at
least $7,000,000, and which is a member of the Federal Reserve System, or any
other bank reasonably acceptable to Landlord. As used herein, the "Special
Certification" to be included in any draw on any Letter of Credit hereunder
shall be a certification by the drawer that the drawer did send notice in
compliance with the Notice Provisions of this Lease to Tenant of Landlord's
intention to draw on the Letter of Credit on a date not earlier than (i) five
(5) business days or (ii) if Landlord shall have received at least $25,000 in
cash as part of the Security Deposit (in which event said sum shall be included
within the Security Deposit amount and not be in addition thereto), twelve (12)
days nor later than twenty-four (24) days from the date of such notice and that
such notice specified the amount to be drawn upon and the reasonably specific
grounds or basis for arriving at that amount, such Special Certification to be a
condition precedent to any drawing under the Letter of Credit. It is understood
that if Landlord shall receive a payment on account of the amount specified in
such notice of intention to draw on the Letter of Credit, then a new notice
shall not be required if Landlord draws down a lesser amount than the amount
specified in said notice of intention to draw upon the Letter of Credit.
If the Security Deposit shall be paid in cash at any time throughout the
term of this Lease, the Landlord shall deposit two-thirds of said amount in an
escrow account in a financial institution located in Massachusetts that is
mutually acceptable and pays current interest rates and such deposit shall be in
the name of the Landlord, as escrowee. Any interest earned thereon shall be
added to and be deemed a part of the Security Deposit. The remaining one-third
of the Security Deposit paid in cash may be commingled with other funds of
Landlord and Landlord shall not be obligated to pay interest on such amount to
the Tenant. The Landlord and Tenant agree to cooperate with each other with a
view to arriving at a mutually satisfactory form of Letter of Credit from a
mutually acceptable bank if a qualified bank can not write the Letter of Credit
specifically as directed.
(c) If, and as soon as, there shall exist an Event of Default under this
Lease (and on the occasion of each Event of Default if there shall be more than
one), the Landlord may draw upon the Security Deposit at any time and from time
to time in such amount or amounts as may
14
be necessary to cure the default(s) or to reimburse the Landlord for any sum(s)
which the Landlord may have spent to cure the default(s), and if the Landlord
has terminated this Lease due to the Tenant's default(s), the Landlord may also
draw upon the Security Deposit in such amount (or all) as may be necessary to
obtain any amounts from time to time owed to the Landlord by the Tenant after
termination. In the case of each such drawing (except a drawing occurring after
termination or expiration of this Lease), the Tenant shall, on demand, cause the
Security Deposit to be reinstated to the full amount that was required by this
Lease prior to the drawing (or, in the case of a Letter of Credit, cause a
similar Letter of Credit, aggregating said full amount, to be issued to the
Landlord). If at the end of the Lease Term, no Event of Default shall exist, the
Security Deposit, or any balance thereof, shall be returned to the Tenant or if
at the end of the Term of this Lease, an Event of Default shall exist, then any
portion of the Security Deposit not necessary to cure said Event of Default
shall be returned to Tenant but not otherwise. The Landlord shall have the
right, if an Event of Default occurs, to draw on that portion of the Security
Deposit necessary to cure an Event of Default as long as partial drawings are
permitted thereunder; otherwise, Landlord shall hold the proceeds thereof
(without interest payable to the Tenant) to be applied from time to time against
damages and losses. The Landlord shall be entitled to commingle up to the
equivalent of three (3) months Fixed Rent in cash or the proceeds of any Letter
of Credit provided to the Landlord as the Security Deposit with other funds of
the Landlord, and shall not be obligated to pay interest on that portion of the
deposit to the Tenant, and the remaining two-thirds will be placed in an escrow
account, all as provided in sub-paragraph (b) above. If the Landlord conveys the
Landlord's interest under this Lease, the Security Deposit, or any part thereof
not previously applied, shall be turned over by the Landlord to the Landlord's
transferee, and, if so turned over, the Tenant agrees to look solely to such
transferee for proper application of the Security Deposit in accordance with the
terms of this Lease as to the portion of the Security Deposit so transferred to
Landlord's transferee, provided that the Landlord shall see to it that the full
amount of the Security Deposit (or the unapplied balance thereof) is actually
turned over to such assignee and placed in an escrow account in a Massachusetts
bank and notice of the name and address of the transferee, the name and parties
to the escrow account and the name and address of the bank and account number is
concurrently provided by notice to the Tenant, and if the Security Deposit is
represented in whole or in part by a Letter of Credit, that no notice of
intention to draw shall have been given, or if given, shall remain outstanding.
(d) If the Security Deposit consists of a Letter of Credit, upon the
request of the Landlord, from time to time but not more than twice during the
term of this Lease, the Tenant shall make arrangements satisfactory to the
Landlord in its reasonable discretion for the transfer of Letter of Credit to
any successor landlord or mortgagee of the Property, and from any such mortgagee
to the Landlord or any successor mortgagee provided that Tenant shall not be
responsible to pay any fee required in connection with any such transfer of the
Letter of Credit due to the request of the Landlord more often than annually
during the term of this Lease.
15
4. Alterations.
4.1 Consent Required for Tenant's Alterations. The Tenant shall not make
-----------------------------------------
alterations or additions to the Premises, unless the Tenant shall have first
obtained the Landlord's prior written consent thereto and approval of the plans
and specifications in each case, which consent the Landlord may withhold in its
sole discretion, except that the Landlord's prior written consent shall not be
unreasonably withheld for Minor Alterations. For purposes hereof, "Minor
Alterations" shall consist of alterations and additions to the Premises that are
not alterations or additions to the exterior of the Premises including, without
limitation, the roof thereof structural alterations or additions or alterations
or additions to the Base Building Systems (as hereinafter defined) and that will
not cost more than $10,000 to perform. Prior to commencing any alterations or
additions, Tenant shall submit to Landlord copies of all permits, approvals and
plans relating to the performance of such work. In the case of Minor
Alterations, such plans may be "schematic plans" and need not have been prepared
or certified by an engineer or architect. Upon commencing any alterations or
additions, the Tenant shall diligently prosecute the same until completion. The
Tenant shall, in all events, deliver a complete set of as-built plans to the
Landlord upon completion of any alterations or additions for which plans are
required, whether or not the plans therefor are required to be approved by
Landlord hereunder.
Notwithstanding the foregoing, if any additions, alterations or
improvements shall change the general character of the Premises or substantially
change the basic structure of the Premises or any other improvement included
therein or adversely affect the value of the Property, the Tenant may make such
alterations, addition or improvement only with the prior written approval of the
Master Landlord and of the Landlord. In the event that the consent of the
Master Landlord is required hereunder for any such addition, alterations or
improvements, Landlord will exercise reasonable efforts to obtain any such
consent.
4.2 Ownership of Alterations. Except as otherwise expressly provided in
------------------------
this Section 4.2, all alterations and additions shall be part of the Premises
and owned by the Landlord, unless at the time of the Landlord's approval of the
plans and specifications therefor, the Landlord shall specify in writing that
such alterations or additions may or shall be removed upon termination or
expiration of this Lease. By no later than twenty (20) days prior to the
anticipated time of commencement of work on any such alteration or addition. the
Tenant may submit a written request to Landlord seeking Landlord's determination
whether such item is to be removed at the expiration or earlier termination of
this Lease, and Landlord will respond to such request in writing within ten (10)
days after receipt of such request. All equipment and personal property not
attached to the Premises and trade fixtures susceptible of being removed from
the Premises without substantial injury thereto shall remain the property of the
Tenant and shall be removed by the Tenant upon termination or expiration of this
Lease. The Tenant shall repair any damage caused by the removal of any
alterations, additions, trade fixtures or personal property from the Premises.
4.3 Construction Requirements for Alterations. All construction work by
-----------------------------------------
the Tenant shall be done at the Tenant's sole cost and expense except as
expressly otherwise set forth herein and in a good and workmanlike manner,
employing only materials of equal or better quality than those installed in the
Premises as of the Commencement Date, and in compliance with all
16
applicable laws and all lawful ordinances, regulations and orders of
governmental authority and insurers of the Premises and the Rules and
Regulations. The Landlord or the Landlord's authorized agent may (but without
any implied obligation to do so) inspect the work of the Tenant at reasonable
times. Except for installation of furnishings and Minor Alterations, all of the
Tenant's alterations and additions and installation of furnishings shall be
performed by contractors or workers first approved by the Landlord, which
approval the Landlord agrees not to unreasonably withhold or delay. The Tenant,
before starting any work, shall secure all licenses and permits necessary
therefor and, except as to any Minor Alterations, shall deliver to the Landlord
a copy of all such licenses and permits (and, upon completion, a copy of the
certificate of occupancy (If required by applicable law)) The Tenant also shall
deliver to the Landlord a copy of the building permit and certificate of
occupancy for any Minor Alternations for which they are required by applicable
law. The Tenant shall cause each contractor to carry worker's compensation
insurance in statutory amounts covering all the contractors' and subcontractors'
employees and comprehensive general public liability insurance with limits not
less than $1,000,000 (individual) $3,000,000 (occurrence) (all such insurance to
be written in companies approved reasonably by the Landlord and naming as
additional insureds the Landlord, the Landlord's managing agent, any ground
lessor or mortgagee of whose identity the Tenant shall have been given notice,
and the Tenant, as well as the contractors, and to deliver to the Landlord
certificates of all such insurance. Each policy of general public liability
insurance shall be non-cancelable and non-amendable with respect to the
Landlord, and any such ground lessors and mortgagees without 30 days' prior
notice to the Landlord, and such ground lessors and mortgagees. At the
Landlord's request, the Tenant shall, before work is started on any improvements
or alterations made by the Tenant, secure assurances satisfactory to the
Landlord protecting the Landlord against claims arising out of the furnishing of
labor and materials therefor.
4.4 Payment for Tenant Alterations. The Tenant agrees to pay promptly
------------------------------
when due the entire cost of any work done on the Premises by the Tenant, its
agents, employees or independent contractors, and to prevent any liens for labor
or materials performed or furnished in connection therewith from attaching to
the Premises or the Property and promptly to discharge (whether by payment,
bonding off or otherwise) any such liens which may so attach. If any such lien
shall be filed against the Premises or the Property and the Tenant shall fail to
cause such lien to be discharged within two (2) business days after receipt of
notice of the filing thereof, the Landlord may cause such lien to be discharged
by payment, bond or otherwise, without investigation as to the validity thereof
or as to any offsets or defenses which the Tenant may have with respect to the
amount claimed. The Tenant shall reimburse the Landlord, upon demand, as
Additional Rent, for any reasonable cost so incurred, including, without
limitation, reasonable attorneys' fees in connection therewith, it being
expressly agreed that such discharge by Landlord shall not be deemed to waive or
release the default of the Tenant in not discharging such lien. Tenant shall
indemnify and hold the Landlord harmless from and against any and all expenses,
liens, claims, liabilities and damages based on or arising, directly or
indirectly, by reason of the making of any alterations, additions or
improvements by or on behalf of the Tenant, which obligation shall survive the
expiration or termination of this Lease.
17
4.5 As Is. Except as set forth in Section 2.9 (a), Tenant is leasing the
-----
Premises in an "AS IS" condition, without any warranties, express or implied,
with regard to the condition of the Premises (except as otherwise specifically
provided in this Lease), and the Landlord shall not make, is not hereby making
and has not made any covenants, guaranties, representations or warranties,
express, implied or by law, oral or written, of any kind or character, as to the
nature, condition, construction, workmanship, state of repair, development,
function, valuation, profitability, income, operations, expenses, tax
consequences, title, compliance with laws, rules, regulations and ordinances,
habitability, merchantability, or fitness, suitability or feasibility for any
purpose of the Property; all of the foregoing being hereby expressly disclaimed
by the Landlord and waived by the Tenant. The Tenant has entered into this
Lease without relying on any statement or representation by the Landlord or its
agents. The Tenant represents and warrants that the Tenant has relied solely on
its own expertise and that of its consultants in leasing the Premises.
5. Responsibility for Condition of Premises; Landlord's Services.
-------------------------------------------------------------
5.1 Maintenance and Repair Obligations of the Landlord. (a) Except as
--------------------------------------------------
otherwise provided in Article 8, the Landlord shall maintain, clean, repair and
---------
make all necessary replacements to (i) the Property Common Areas, and (ii) the
roof, floor slabs, structural supports, structure of the building (including the
plumbing, mechanical, HVAC and electrical systems serving other portions of the
Property in addition to the Premises as they may be expanded hereunder from time
to time) and exterior walls of the Premises, in each case as may be necessary to
keep and maintain the same in good order, condition and repair. In no event
shall Landlord be responsible for the repair of glass in the Premises or the
doors (or related finish work), except that repairs to glass or doors required
as of the Commencement Date shall be by the Landlord at Landlord's expense.
5.2 Maintenance and Repair Obligations of Tenant; Surrender. The Tenant
-------------------------------------------------------
shall keep neat and clean and maintain in good order, condition and repair the
Premises, excepting only reasonable wear and tear and damage by fire or other
casualty and as a consequence of the exercise of the power of eminent domain,
and those repairs for which the Landlord expressly is responsible pursuant to
Section 5.1.. The Tenant covenants and agrees that, upon the termination or
expiration of this Lease, the Tenant shall surrender the Premises and, to the
extent required or permitted by Section 4.2, all alterations and additions
thereto made by Tenant during the Term of this Lease, in the aforesaid
condition, first removing all goods and effects of the Tenant and, to the extent
required or permitted by Section 4.2, all alterations and additions made by the
Tenant and repairing any damage caused by such removal and restoring the
Premises. The Tenant shall not permit or commit any waste, and the Tenant shall
be responsible for the cost of repairs which may be made necessary by reason of
damage to the roof and exterior walls of the Premises and Property Common Areas
reasonable wear and tear excepted, by any Tenant Responsible Party, which shall
be payable to the Landlord upon demand as Additional Rent.
18
5.3 Landlord's Services; Landlord Delay; Interruption. The Landlord shall
-------------------------------------------------
provide lighting, maintenance and snow removal for the parking areas and
landscaping maintenance services in and for the Property so as to maintain the
Property in good and operational condition similar to that of comparable
properties, well maintained, in the area in which the Property is located. The
cost of all such services shall be included in Operating Expenses. Landlord
shall provide heating and cooling as may be required to provide reasonably
comfortable space temperature and ventilation for occupants of the Premises.
Landlord shall also provide hot water for lavatory purposes and cold water for
drinking, lavatory and toilet purposes. The cost of such heating, cooling, hot
water and cold water shall be paid, to the extent specified under Section 3.3
(a), by Tenant as part of Operating Expenses. In case the Landlord is
prevented or delayed from making any repairs, alterations or improvements, or
furnishing any services or performing any other covenant or duty to be performed
on the Landlord's part by reason of any External Cause, the Landlord shall not
be liable to the Tenant therefor, nor, except as expressly otherwise provided in
this Lease, shall the Tenant be entitled to any abatement or reduction of rent
by reason thereof, nor shall the same give rise to a claim in the Tenant's favor
that such failure constitutes actual or constructive, total or partial, eviction
from the Premises. The Landlord also reserves the right to take any steps
necessary to comply with applicable law, ordinances, codes and regulations. In
no event shall the Landlord be liable to the Tenant for, nor, except as
expressly otherwise provided in this Lease, shall the Tenant be entitled to any
abatement or reduction of rent by reason of the unavailability of heat, light or
any utility or any service, nor shall the same give rise to any claim in the
Tenant's favor that the same constitutes actual or constructive, total, or
partial, eviction from the Premises.
5.4 ADA Compliance. The Tenant and the Landlord acknowledge that, in
--------------
accordance with the provisions of the Americans with Disabilities Act of 1990
(42 X.X.X. (X)00000, as amended) and the regulations promulgated thereunder (the
"ADA"), responsibility for compliance with the terms and conditions of the ADA
may be allocated as between the Landlord and the Tenant. The Landlord and the
Tenant therefore agree that the Landlord shall be responsible for compliance
with the ADA with respect to the Property Common Areas, including, but not
limited to, the sidewalks, parking areas and exterior walkways, and the Tenant
shall be responsible for compliance with the ADA only if required with respect
to any work Tenant undertakes with respect to the Premises and any new
compliance obligations which are triggered as a result of Tenant's undertaking
such work.
5.5 Signage. The Tenant shall have the right to install and maintain (a)
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a principal sign for the Tenant's business and that of its affiliate, Lifef/x
Networks, Inc. on the Premises on the principal entrance way into the Premises
in front of the main lobby in Building N1. Any signage installed on the
Property by the Tenant shall be installed by the Tenant in a good and
workmanlike manner, using only new first-class materials, and such signage will
be maintained at the Tenant's sole expense in good condition and repair. The
location and design of any sign shall be subject to the Landlord's prior
written approval, not to be unreasonably withheld as long as the format and
design of such signs shall be consistent with Landlord's general criteria for
signage at the Property.
19
5.6 Trash Removal. The Landlord shall be responsible for removal of all of
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the Tenant's trash and refuse from the Property. The Landlord shall install and
maintain one or more trash receptacles outside the Premises. Without limitation
of the foregoing, the Tenant shall be responsible for proper disposal off the
Property of all Hazardous Materials used or brought onto the Premises or the
Property by the Tenant or any Tenant Responsible Party.
6. Certain Covenants.
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6.1 Permitted Uses. The Tenant shall occupy the Premises only for the
--------------
Permitted Uses, and shall not injure or deface the Premises or the Property, nor
permit in the Premises any auction sale. Landlord hereby certifies that the
lawful uses of the Premises under the Xxxxxx Zoning Ordinance include office
use, certain research and development use and certain manufacturing uses. The
Tenant shall not permit in the Premises any nuisance (other than consistent with
Permitted Uses and then so long as it is limited to Building N-2 and does not
interfere with any other tenant's use and enjoyment), or the emission from the
Premises of any objectionable noise, odor or vibration, nor do or permit any act
or thing on the Premises or the Property which is contrary to any requirement of
law, or which constitutes a public or private nuisance, or which might impair
the value of the Property, or which is liable to invalidate or increase premiums
for any insurance on the Premises or the Property or their contents (unless the
Tenant agrees to pay the Landlord for the total increased cost of such
premiums), or which is liable to render necessary any alteration or addition to
the Premises or the Property, nor commit or permit any waste in or with respect
to the Premises or the Property.
6.2 Laws and Regulations and Other Compliance; Liens. The Tenant shall
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comply with all applicable laws, statutes, codes, ordinances, orders, judgments,
decrees, injunctions, regulations, rules, permits, licenses, authorizations,
directions and requirements of all governments, departments, commissions,
boards, courts, authorities, agencies, officials and officers, foreseen or
unforeseen, ordinary or extraordinary in effect from time to time applicable
with respect to the Tenant's use and occupancy of the Premises, including,
without limitation, by making, any alterations to the Premises required as a
result of the Tenant's specific use and occupancy, subject to the provisions of
this Lease regarding alterations by the Tenant. Without limitation of the
foregoing, the Tenant shall comply with applicable local, state and federal
laws, ordinances, regulations and orders relating to industrial hygiene,
environmental protection, and public health and safety and any applicable
permits, licenses, and other governmental or regulatory approvals regarding the
discharge or emission of regulated materials or wastes in connection with
Tenant's specific operations and occupancy at the Premises. Tenant shall pay
all costs related to such compliance, where such compliance requirements are
triggered by Tenant's specific use, whether as specifically authorized hereunder
or not, (and are not triggered by the inherent character of the space as used
for office and administrative uses respectively). Tenant's authorized use
hereunder is development, maintenance and marketing of software and other
communication technologies; provided, however, that whether or not Tenant may
lawfully engage in such business is at the risk of Tenant as set forth in
Exhibit A. The Tenant shall comply with all instruments now of record which now
or at any time hereafter may be applicable to the Premises or any part thereof,
or any of the adjoining sidewalks, curbs, fences and vaults, if any, or the
ownership or use of any thereof, of which Tenant has received actual written
notice, provided that the same do not materially adversely affect the rights and
remedies of Tenant
20
pursuant to this Lease.; conform to all requirements of all customary policies
of insurance covering the Premises or insuring the Landlord or the Tenant in
connection therewith and the standards recommended by the Boston Board of Fire
Underwriters applicable to the Tenant's use and occupancy of the Premises; and
not do or permit to be done on or in connection with the Leased Premises any act
or thing which might impose any liability or responsibility upon the Landlord
except those arising from Permitted Uses expressly permitted hereunder, in which
case such uses may be exercised but Tenant hereby agrees that it assumes any and
all liability or responsibility therefor; and not to subject the Leased Premises
to any mortgage, lien, encumbrance or charge, and to discharge any such
mortgage, lien, encumbrance or charge which may arise. The Tenant shall, at the
Tenant's sole cost and expense, obtain all permits, licenses and approvals
required by any governmental authority for the Tenant's specific use and
activities for Permitted Uses on the Premises.
6.3 Rules and Regulations. The Tenant shall not unreasonably obstruct in
---------------------
any manner any portion of the Property not hereby leased; and shall comply with
all reasonable rules and regulations of uniform application to all occupants of
the Property now or hereafter made by the Landlord, of which the Tenant has been
given notice, for the care and use of the Buildings, and the Property Common
Areas (the "Rules and Regulations"). The initial Rules and Regulations are
attached hereto as Exhibit E. The Landlord shall not be liable to the Tenant
---------
for the failure of other occupants of the Property to conform to any of the
Rules and Regulations, but the Landlord shall enforce such Rules and Regulations
in a non-discriminatory and uniform manner.
6.4 Safety Compliance. The Tenant shall keep the Premises equipped with
-----------------
all safety appliances required by law or ordinance or any other regulations of
any public authority or reasonable insurance underwriting requirements of which
the Tenant has been given reasonable prior notice and procure all licenses and
permits so required because of such use and, if requested by the Landlord, do
any work so required because of such use and such requirements, it being
understood that the foregoing provisions shall not be construed to broaden in
any way the Tenant's Permitted Uses. Landlord acknowledges that as of the
Commencement Date, all such safety appliances as are required for the use of the
Premises for office and administrative purposes shall have been installed and be
in good working order.
6.5 Landlord's Entry. The Tenant shall permit the Landlord, its agents
----------------
and any ground lessor and mortgagee, upon no less than 24 hours prior notice
except in the case of emergencies, to enter the Premises at all reasonable hours
for the purpose of inspecting or of making repairs to the same, and for the
purpose of showing the Premises to prospective purchasers, investors, ground
lessors and mortgagees during normal business hours s, and to prospective
tenants during the last twelve (12) months of the Term. In connection with such
entry, the Landlord shall exercise reasonable efforts to minimize any
interference with the Tenant's use of the Premises. In addition, the Master
Landlord shall have the right to enter the Premises pursuant to Section 6 of the
Master Lease to the extent provided therein. Landlord acknowledges that Tenant
may restrict inspections to the extent reasonably necessary to maintain
confidentiality with respect to its proprietary codes, software and other
intellectual property; provided, however, such restrictions shall not result in
denying Landlord access to any part of the Premises.
21
6.6 Personal Property Tax. The Tenant shall pay promptly when due all
---------------------
taxes which may be imposed upon the Tenant's personal property (including,
without limitation, fixtures and equipment) in the Premises to whomever
assessed.
6.7 Assignment and Subleases.
(a) The Tenant covenants and agrees that neither this Lease nor the
term and estate hereby granted, nor any interest herein or therein, will be
assigned, mortgaged, pledged, encumbered or otherwise transferred, whether
voluntarily, involuntarily, by operation of law or otherwise, and that neither
the Premises nor any part thereof will be encumbered in any manner by reason of
any act or omission on the part of the Tenant, or used or occupied or permitted
to be used or occupied, by anyone other than the Tenant, or for any use or
purpose other than a Permitted Use, or be sublet (which term, without
limitation, shall include granting of concessions, licenses and the like) in
whole or in part, or be offered or advertised for assignment or subletting by
the Tenant or any person acting on behalf of the Tenant, without, in each case,
the prior written consent of the Landlord, which consent shall not be
unreasonably withheld and, in the event that the Landlord consents to any
subletting, no subtenant in any event shall be permitted to further assign,
sublet or otherwise transfer its interest under this Lease, except in accordance
with this section in any manner described in this paragraph (a). Subject to
the provisions of paragraph (b) hereof, the provisions of this paragraph (a)
shall apply, without limitation, to a transfer (by one or more transfers) of a
controlling portion of or interest in the stock or partnership or membership
interests or other evidences of equity interests in the Tenant as if such
transfer were an assignment of this Lease; provided that if equity interests in
the Tenant at any time are or become traded on a public stock exchange, the
transfer of equity interests in the Tenant on a public stock exchange shall not
be deemed an assignment within the meaning of this Section.
Landlord acknowledges that Tenant's affiliate, Lifef/x Networks, Inc. may
occupy the Premises with Tenant. Further, notwithstanding anything else to the
contrary herein, assignments by operation of law or otherwise by reason of
"mergers and acquisitions" shall not require the consent of Landlord provided
that the net worth of the Assignee or resulting entity will be not less than the
greater of (i) Tenant's net worth as of the Commencement Date or (ii) Tenant's
net worth as of the last day of the third calendar month next prior to the date
of such Merger or Acquisition. As used herein, the term "mergers and
acquisition" shall include (i) a statutory merger (ii) a statutory
consolidation, (iii) a transfer of all or substantially all assets to another
entity, or (iv) a so-called reorganization within the meaning of Section 368 of
the Internal Revenue Code as amended.
(b) Acceptance of Rent. No such assignment, subletting or occupancy shall
------------------
be deemed a waiver of the terms of this Lease. Any consent by the Landlord to a
particular subletting or occupancy or any assignment by reason of "merger or
acquisition" shall not in any way diminish the prohibition stated in paragraph
(a) as to any future assignment or subletting, or the continuing liability of
the original named Tenant. No assignment or subletting hereunder shall relieve
the Tenant from its obligations hereunder, and the Tenant shall remain fully and
22
primarily liable therefor. No assignment or subletting shall expand the signage
rights provided for by this Lease.
(c) In the event Landlord consents to any assignment or subletting one
half of any rent payable to Tenant in excess of the Annual Fixed and Additional
Rent (i.e. Tax Increases and Operating Cost Increase payable by Tenant under
this Lease) shall be the sole property of Landlord, payable as Additional Rent
upon demand of Landlord; however, prior to calculating the amount of such excess
rent to be shared by Landlord and Tenant, Tenant shall be entitled to net out
(and retain) as amortized over the remaining term of the Lease the following of
its out-of-pocket third-party costs of such transaction: reasonable attorney's
fees, broker's commission, and advertising/marketing costs, tenant improvement
costs, tenant inducements and other reasonable out-of pocket expenses incurred
in connection with such assignment or subletting.
7. Indemnity and Insurance.
-----------------------
7.1 Tenant's Indemnity. To the maximum extent this agreement may be made
------------------
effective according to law, and except as otherwise expressly provided in this
Lease, the Tenant agrees to indemnify and save harmless the Landlord from and
against all claims, loss, or damage of whatever nature to the extent, except to
the extent that the same results from the negligence or willful misconduct of
Landlord, or the Landlord's Responsible Parties (as hereinafter defined): (i)
directly arising from any negligent act or omission relating to an express
obligation under this Lease or willful misconduct of any Tenant Responsible
Party or any accident, injury to or death of persons or loss of or damage to
property whatsoever, in each case occurring in the Premises during the Term and
thereafter, so long as the Tenant is in occupancy of any part of the Premises,
or (ii) arising from any accident, injury or damage occurring outside the
Premises but in or on the Property Common Areas, or any other areas within the
Buildings or on the Land, where such accident, injury or damage results directly
from the Tenant's negligence act or omission relating to an express obligation
under this Lease on the part of any Tenant Responsible Party; provided that the
foregoing indemnity shall not include any cost or damage to the extent arising
from the negligence or willful misconduct of the Landlord or the Landlord's
contractors, licensees, invitees, agents, servants or employees or others for
whom the Landlord is legally responsible (collectively, with the Landlord,
"Landlord Responsible Parties") or if caused by the acts or omissions of any
other tenant or such tenant's contractors, licensees, invitees, agents, servants
or employees. This indemnity and hold harmless agreement shall include
indemnity against reasonable attorneys' fees and all other reasonable costs,
expenses and liabilities incurred or in connection with any such claim or
proceeding brought thereon, and the defense thereof. The claims subject to the
foregoing indemnity by Tenant shall include any claims by the Master Landlord
under Section 9(a) of the Master Lease arising from the Tenant's negligent acts
or omissions in connection with use or occupancy of the Premises. This
Indemnification Obligation shall be governed by the provisions of Section 7.6.
7.2 Liability Insurance. The Tenant agrees to maintain in full force from
-------------------
the date upon which the Tenant first enters the Premises for any reason,
throughout the Term, and thereafter, so long as the Tenant is in occupancy of
any part of the Premises:
23
(a) a policy of comprehensive general liability insurance under
which the Master Landlord, the Landlord (and the Landlord's managing agent, any
ground lessor and any holder of a mortgage on the Property of whom the Tenant is
notified in writing by the Landlord), Bull HN Information Systems Inc. ("Bull"),
Honeywell Inc. ("Honeywell") and Polaroid Corporation, are named as additional
insureds if naming Bull and Honeywell may be done at no added cost (or if the
same may be procured at added cost, provided that Landlord shall elect to
reimburse Tenant for such added cost) and under which the insurer provides a
contractual liability endorsement insuring against all cost, expense and
liability arising out of or based upon any and all claims, accidents, injuries
and damages described in Section 7.1, in the broadest form of such coverage from
time to time available; and
(b) workers' compensation insurance as required by state law.
The following policy requirements shall apply to the extent that, with best
efforts, they are commercially available at commercially reasonable expense.
Each such policy shall be noncancellable and nonamendable with respect to the
Master Landlord and its mortgagees, the Landlord, its managing agent and such
ground lessors and mortgagees, Bull and Honeywell, without thirty (30) days'
prior written notice to the Landlord, its managing agent and such ground lessors
and mortgagees and, at the election of the Landlord, either a certificate of
insurance or a duplicate original policy shall be delivered to the Landlord
prior to the Commencement Date or any entry into the Premises by the Tenant
prior to the Commencement Date, and in any event, not less than thirty (30) days
prior to expiration. The minimum limits of liability of such comprehensive
general liability insurance shall be Five Million Dollars ($5,000,000.00) for
combined bodily injury (or death) and damage to property (per occurrence), or
such higher amount as the Landlord reasonably may require from time to time,
taking into account amounts commonly carried by similar tenants in similar
buildings in the vicinity of the Property. Such liability limits may be
satisfied by adding Tenant's so-called "umbrella" liability coverage to its base
general liability insurance. The Landlord shall carry such liability insurance
with respect to operations at the Property as may from time to time reasonably
be deemed prudent by the Landlord or required by any mortgagee holding a first
mortgage thereon or any ground lessor of the Land. All such insurance shall be
written by companies of recognized financial standing which are authorized to do
an insurance business in Massachusetts. Such insurance may be obtained by the
Tenant by endorsement on its blanket insurance policies. Every such policy shall
contain, to the extent obtainable, an agreement by the insurer that any loss
otherwise payable thereunder shall be payable notwithstanding any act or
negligence of the Master Landlord, the Landlord, or the Tenant which might,
absent such agreement, result in a forfeiture of all or a part of such insurance
payment and notwithstanding (i) the occupation or use of the Premises for
purposes more hazardous than permitted by the terms of such policy, (ii) any
foreclosure or other action or proceeding taken by any of the Master Landlord's
mortgagees of which the Tenant has notice pursuant to any provision of any such
mortgagees' mortgage upon the happening of an event of default, as defined
therein, or (iii) any change in title or ownership of the Property. The Tenant
shall deliver to the Landlord promptly after the execution and delivery of this
Lease the original or duplicate policies or certificates of the insurance
required to be carried by Tenant hereunder, and the Tenant shall, within thirty
(30) days prior to the expiration of any such insurance, deliver other original
or duplicate policies or other certificates of insurance evidencing the renewal
of such insurance. The Tenant shall not obtain or carry separate insurance
24
concurrent in form or contributing in the event of loss with that required
hereunder unless each of the Master Landlord and the Landlord is included
therein as a named insured. The Tenant shall promptly notify the Landlord
whenever any such separate insurance is obtained and shall deliver to the
Landlord the policy or policies or certificates evidencing the same.
Should the Tenant fail to effect, maintain or renew any insurance provided
for in this Section, or to pay the premium therefor, or to deliver to the
Landlord any of such policies or certificates, then and in any of said events
the Landlord, at its option, but without obligation so to do, may, upon five (5)
days notice to the Tenant of its intention to do so, procure such insurance, and
any sums expended to procure such insurance shall be Additional Rent hereunder
and shall be repaid by the Tenant within five (5) days following the date on
which the Tenant receives notice that such expenditure has been made by the
Landlord.
7.3 Tenant's Risk. The Tenant agrees to use and occupy the Premises and
-------------
to use such other portions of the Property as the Tenant is herein given the
right to use at the Tenant's own risk. The Landlord shall not be liable to the
Tenant, its employees, agents, invitees or contractors for any damage, injury,
loss, compensation, or claim (including, but not limited to, claims for the
interruption of or loss to the Tenant's business)except to the extent that the
same arises from the negligence or willful misconduct of the Landlord, based on,
arising out of or resulting from any cause whatsoever, including, but not
limited to, repairs to any portion of the Premises or the Property, any fire,
robbery, theft, mysterious disappearance and/or any other crime or casualty, the
actions of any other tenants of the Property or of any other person or persons,
or any leakage in any part or portion of the Premises or the other Buildings, or
from water, rain or snow that may leak into, or flow from any part of the
Premises or the other Buildings, or from drains, pipes or plumbing fixtures in
the Premises or the other Buildings. Any goods, property or personal effects
stored or placed in or about the Premises shall be at the sole risk of the
Tenant, and neither the Landlord nor the Landlord's insurers shall in any manner
be held responsible therefor, except to the extent that the same arises from the
negligence or willful misconduct of Landlord. Notwithstanding the foregoing,
the Landlord shall not be released from liability for any injury, loss, damages
or liability to the extent arising from any negligence or willful misconduct of
the Landlord Responsible Parties; provided, however, that in no event shall the
Landlord have any liability to the Tenant for indirect or consequential damages
such as lost profits or other such losses of the Tenant's business as a result
of interruption. The Tenant shall carry "all-risk" property insurance on a
"replacement cost" basis, insuring the Tenant's removable property and any
alterations made by the Tenant pursuant to Article 4, to the extent that the
---------
same have not become the property of the Landlord.
7.4 Property Insurance. The Landlord shall carry such property insurance
------------------
upon and with respect to the Premises (including the improvements to be made to
the Premises pursuant to Section 2.9 of this Lease) and the Property Common
Areas as may from time to time reasonably be deemed prudent by the Landlord or
required by any mortgagee holding a first mortgage thereon or any ground lessor
of the Land, and in any event, an "all risk" property insurance policy (or its
equivalent from time to time), on a full replacement cost basis, subject to a
commercially reasonable deductible and exclusive of foundations, site
preparation and other nonrecurring construction costs. The Landlord's insurance
pursuant to this Section 7.4 may be in the form of a blanket policy, so long as
it provides for an agreed amount with respect to the
25
Premises and the Property Common Areas. The Tenant shall carry property
insurance upon and with respect to all of its tenant improvements (other than
the tenant improvements to be made to the Premises pursuant to Section 2.9 of
this Lease, which shall be Landlord's responsibility to insure), fixtures,
equipment and personal property located on the Premises, insuring against loss
by fire and other risks which are required to be insured against by the
Landlord.
7.5 Waiver of Subrogation. Any insurance carried by either party under
---------------------
this Lease with respect to the Buildings, the Land, the Premises, parking
facilities or any property therein or occurrences thereon shall, without further
request by either party, if it can be so written without additional premium, or
with an additional premium which the other party elects to pay, include a clause
or endorsement denying to the insurer rights of subrogation against the other
party to the extent rights have been waived by the insured prior to occurrence
of injury or loss. Each party, notwithstanding any provisions of this Lease to
the contrary, hereby waives any rights of recovery against the other for injury
or loss, including, without limitation, injury or loss caused by negligence of
such other party, due to hazards covered by insurance containing such clause or
endorsement to the extent of the indemnification received thereunder.
7.6 Indemnity Procedural Provisions.
-------------------------------
The following provisions shall apply to the indemnities provided for by
this Lease. For purposes of this section, the party obligated to provide an
indemnity hereunder is referred to as the "Indemnitor", and the party benefited
by the indemnity is referred to as the "Indemnified Party."
(a ) An Indemnitor shall have no obligation of indemnity hereunder with
respect to any claim, suit, indemnity or proceeding hereunder unless a
reasonably prompt written notice is given to the Indemnitor by the Indemnified
Party after the Indemnified Party becomes aware of a reasonable likelihood, or
receives actual notice, of the making of any claim or the commencement of any
suit, action or proceeding giving rise or potentially giving rise to the
liability of the Indemnitor hereunder (an "Indemnified Claim").
(b ) The Indemnitor shall be entitled to participate in, and assume sole
control over, the defense of any such Indemnified Claim with counsel at its own
expense; provided, however, that (i) the Indemnified Party shall be entitled to
participate in the defense and to employ counsel at its own expense to assist in
such defense; and (ii) the Indemnitor shall obtain the prior written approval of
the Indemnified Party, which shall not be unreasonably withheld or delayed,
before entering into any settlement or ceasing to defend against any such
Indemnified Claim, if pursuant to or as a result of such settlement or
cessation, injunctive or other equitable relief would be imposed against the
Indemnified Party. Such a settlement by the Indemnitor shall not require the
consent of the Indemnified Party if such settlement shall not materially
adversely impact on the Indemnified Party or on the Property. After written
notice by the Indemnitor to the Indemnified Party of the Indemnitor's election
to assume control of the defense of any such Indemnified Claim pursuant to the
terms hereof, the Indemnitor shall not be liable to any Indemnified Party
hereunder for any expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation, provided, however, that if the Indemnitor fails to take
reasonable steps necessary to defend diligently such Indemnified Claim
26
within twenty (20) calendar days after receiving written notice from an
Indemnified Party that such Indemnified Party believes that the Indemnitor has
failed to take such steps, such Indemnified Party may assume its own defense,
and the Indemnitor will be liable for all reasonable costs and expenses paid or
incurred in connection therewith. Without the prior written consent of the
Indemnified Party, the Indemnitor will not enter into a settlement of any
Indemnified Claim that would lead to liability or create any financial or other
obligation on the part of the Indemnified Party for which the Indemnified Party
is not entitled to indemnification hereunder. If a firm offer is made to settle
an Indemnified Claim without leading to liability or the creation of a financial
or other obligation on the part of an Indemnified Party, and the Indemnitor
desires to accept and agree to such offer, the Indemnitor will give written
notice to such Indemnified Party to that effect. If such Indemnified Party fails
to consent to such firm offer within ten (10) calendar days after its receipt of
such notice, such Indemnified Party may continue to contest or defend such
Indemnified Claim and, in such event, the maximum liability of the Indemnitor as
to such Indemnified Claim will not exceed the amount of such settlement offer,
plus reasonable costs and expenses (not including expenses of settlement) paid
or incurred by such Indemnified Party through the end of such ten (10) calendar
day period. In no event shall any Indemnified Party settle any claim for which
any Indemnified Party seeks indemnification hereunder without the prior written
consent of the Indemnitor.
(c) In any proceeding involving the Indemnified Claim of any third
party, the Indemnitor and each Indemnified Party shall cooperate fully in the
defense of any such claim. Without limiting the generality of the foregoing,
each Indemnified Party shall furnish the Indemnitor such documentary or other
evidence as is then in its possession as may be reasonably requested by the
Indemnitor for the purpose of defending any such Indemnified Claim.
(d) Any notices to an Indemnified Party hereunder shall be given
pursuant to the notices provision hereof.
(e) To the extent that Tenant shall carry insurance coverages and limits
substantially as required hereunder, the Tenant shall not have the obligation to
defend if the Tenant's insurance company shall defend against any such claims
nor shall the Tenant have the obligation to pay or settle any such claim so long
as Tenant's insurance company shall settle or pay such claim, to the extent that
the insurance company does in fact pay the same. To the extent that Landlord
shall carry insurance coverages and limits substantially as required hereunder,
the Landlord shall not have the obligation to defend if the Landlord's insurance
company shall defend against any such claims nor shall the Landlord have the
obligation to pay or settle any such claim so long as Landlord's insurance
company shall settle or pay such claim, to the extent that the insurance company
does in fact pay the same.
8. Casualty and Eminent Domain.
---------------------------
8.1 Restoration Following Casualties. If, during the Term, a portion of
--------------------------------
the Premises or any of the Property Common Areas shall be damaged by fire or
other casualty ("Damaged Area"), subject to the exceptions and limitations
provided below, the Landlord shall proceed promptly to exercise diligent efforts
to restore the Damaged Area to substantially the condition thereof at the time
of such damage, but the Landlord shall not be responsible for delay in the
27
Landlord's receipt of insurance proceeds or any delay in such restoration which
may result from any External Cause. The Landlord shall have no obligation to
expend in the reconstruction of the Damaged Area more than the actual amount of
the insurance proceeds actually received by the Landlord with respect to the
fire or other casualty plus the amount of any deductible. Any restoration of
the Damaged Area shall be altered to the extent necessary to comply with then
current laws and applicable codes. Further, the Landlord shall have no
obligation to repair or restore any tenant improvements made by the Tenant
(other than the improvements made to the Premises pursuant to Section 2.9 hereof
and then only to the extent such improvements are insured and that adequate
insurance proceeds are released to Landlord to pay for such repairs or
restoration) or any of the Tenant's trade fixtures or personal property.
In case during the Term hereof, the Premises shall be "partially damaged"
(but not "substantially damaged", as that term is hereinafter defined) by fire
or other casualty, Landlord shall promptly proceed to repair such damage and
restore the Premises, to substantially their condition at the time immediately
before such damage, provided further, that Landlord shall not be responsible for
any delays which may result from any cause beyond Landlord's reasonable control.
As used herein "partially damaged" shall mean damaged to such an extent that
said Premises can reasonably be expected to be restored within sixty (60) days
after the commencement of restoration work. If such restoration is not
substantially complete within ninety (90) days after the date of such casualty,
Tenant may elect to terminate this Lease by fifteen (15) days written notice to
Landlord specifying in what respects said restoration is incomplete, which
termination will be effective upon such fifteenth (15/th/) day, unless the
restoration is then substantially completed.
In case the Premises shall be "substantially damaged" (as hereinafter
defined) by fire or other casualty, the Landlord shall give written notice to
Tenant within forty-five (45) days after such casualty as to whether or nor the
damage can be repaired and the Premises restored before the expiration of two
hundred twenty-five (225) days after such casualty. If the Landlord shall
notify the Tenant that such damage can not be restored within said period, said
notice shall be deemed to be an election to terminate this Lease effective, as
specified therein, not less than thirty (30) nor later than sixty (60) days
after the date of such notice. If in good faith the Landlord shall notify that
such damage will be restored within said period of two hundred twenty-five (225)
days, the Landlord shall promptly commence repair and restoration and pursue the
same diligently to completion without undue delay.
8.2 Termination Elections. In the event that (a) at any time during the
---------------------
Term the Premises is damaged by fire or other casualty such that the damage
cannot be substantially restored within two hundred twenty-five (225) days
after the casualty, or (b) at any time during the last year of the Term the
Premises are damaged by fire or other casualty such that the damage cannot be
substantially restored within one year after the casualty (either such event, a
"Substantial Casualty"), Landlord shall have the right, at any time within sixty
(60) days after the casualty to terminate this Lease by giving written notice to
the Tenant, and, in addition, if the Landlord's mortgagee, ground lessor or
other lender refuses in the event of a Substantial Casualty to make the
insurance proceeds available to the Landlord for repair and restoration, the
Landlord shall have the right, at any time within thirty (30) days after
receiving notice from the mortgagee, ground lessor or other lender of its
refusal to release the insurance proceeds, but in no
28
event later than one hundred twenty (120) days following the casualty, to
terminate this Lease by giving written notice to the Tenant.
8.3 Casualty at Expiration of Lease. Notwithstanding anything to the
-------------------------------
contrary contained in this Lease, if the Premises shall be damaged by fire or
casualty in such a manner that the Premises cannot, in the ordinary course,
reasonably be expected to be repaired within thirty (30) days from the date of
such fire or casualty and such damage occurs within the last twelve (12) months
of the Term (as the same may have been extended prior to such fire or casualty),
either party shall have the right, by giving notice to the other not later than
thirty (30) days after such damage, to terminate this Lease, whereupon this
Lease shall terminate as of the thirtieth (30/th/) day after such notice.
8.4 Eminent Domain. Except as hereinafter provided, if the Premises, or
--------------
such portion thereof (or the access thereto unless comparable replacement access
is provided) as to materially impair (if reconstructed to the maximum extent
practicable in the circumstances) the continued conduct of the Tenant's business
at the Premises, or the Property Common Areas, or such portion thereof as to
render the Premises inaccessible such that the continued conduct of the Tenant's
business at the Premises is materially impaired, shall be taken by condemnation
or right of eminent domain and the Landlord has no reasonable means of remedying
or replacing said problem within two hundred and seventy (270) days after the
date of such taking, the Tenant or Landlord shall have the right to terminate
this Lease by notice to the other of its desire to do so, provided that such
notice is given not later than forty five (45) days after the effective date of
such taking. If so much of the Premises, or so much of the Property Common
Areas, shall be so taken that it would be appropriate to raze the Premises, or
due to the lack of sufficient proceeds from the eminent domain taking not
retained by any mortgagee or ground lessor, what may remain of the Premises and
the Property cannot be put into a condition such that the continued conduct of
the Tenant's business is not materially impaired, then each of the Landlord and
the Tenant may terminate this Lease by giving notice to the other of its desire
to do so not later than forty five (45 ) days after the effective date of such
taking.
Should any part of the Premises or the Property be so taken or condemned
during the Term, and should this Lease be not terminated in accordance with the
foregoing provisions, the Landlord agrees to use diligent efforts to put what
may remain of the Premises and the Property into proper condition for use and
occupation as nearly like the condition of the Premises and the Property prior
to such taking as shall be practicable, subject, however, to applicable laws and
codes then in existence, and so long as the proceeds actually received by the
Landlord from the eminent domain taking are sufficient therefor. In no event
shall the Landlord be obligated to expend more than the amount of proceeds from
the eminent domain taking actually received by the Landlord on such work.
8.5 Rent After Casualty or Taking. If the Premises shall be damaged by
-----------------------------
fire or other casualty or taking (and prior to any termination of this Lease
pursuant to this Article 8), the Annual Fixed Rent and Additional Rent shall be
justly and equitably abated and reduced according to the nature and extent of
the loss of use thereof suffered by the Tenant. In the event of a taking which
permanently reduces the area of the Premises or the Property Common Areas, a
just proportion of the Annual Fixed Rent shall be abated for the remainder of
the Term. Any
29
disputes between Tenant and Landlord arising hereunder about the extent of any
such abatement shall be resolved pursuant to the format set forth in Exhibit I
hereto.
8.6 Taking Award. Except as otherwise provided in this Section 8.6, the
------------
Landlord shall have and hereby reserves and excepts, and the Tenant hereby
grants and assigns to the Landlord, all rights to recover for any damages to the
Premises and/or any other part of the Property, and the leasehold interest
hereby created, and to compensation accrued or hereafter to accrue by reason of
any such taking, as aforesaid, and by way of confirming the foregoing, subject
to this Section 8.6, the Tenant hereby grants and assigns to the Landlord, all
rights to such damages or compensation. Nothing contained herein shall be
construed to prevent the Tenant from prosecuting in any condemnation proceedings
a claim for relocation expenses, trade fixtures, equipment and other personal
property of the Tenant that is part of a separate award to the Tenant and which
does not diminish the award payable to the Landlord or the Master Landlord as a
result of the taking.
9. Default.
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9.1 Tenant's Default. Each of the following shall constitute an Event of
----------------
Default:
(a) Failure on the part of the Tenant to pay the Annual Fixed Rent, or
the regular monthly payments of Real Estate Taxes or Operating Expenses for
which provision is made herein on or before the date on which the same become
due and payable, if such condition continues for five (5) business days after
notice from Landlord to Tenant thereof, or failure on the part of the Tenant to
pay any balance due determined by reconciling the monthly payments respectively
of Real Estate Taxes and Operating Expenses ("Reconciliation Payments") with the
actual expenses for any calendar year within fifteen (15) business days after
notice from Landlord to Tenant thereof. Tenant agrees that Tenant, even if
contesting the same, may not withhold Reconciliation Payments, and that Tenant
will not unreasonably withhold payment of any other items of Additional Rent;
provided, however, that in the event of any such withholding, Tenant shall
provide Landlord with a reasonably detailed explanation with a reasonable basis
for any such withholding within thirty (30) days after notice from Landlord that
such amount is due. (Notwithstanding the foregoing, Tenant's making of any such
payments shall not be deemed an admission that the same are properly due or
owed).
Notwithstanding the first sentence of this subparagraph (a), Tenant shall not be
entitled to receive such notice from Landlord more than twice during any
calendar year as to any default consisting of failure to make any regular
monthly payment of (i) Annual Fixed Rent or (ii) Real Estate Taxes or (iii)
Operating Expenses.
(b) Failure on the part of the Tenant to perform or observe any other
term or condition contained in this Lease if the Tenant shall not cure such
failure within thirty (30) days after notice from the Landlord to the Tenant
thereof, provided that in the case of breaches of obligations under this Lease
which are susceptible to cure but cannot be cured within thirty (30) days
through the exercise of due diligence, so long as the Tenant commences such cure
within thirty (30) days and the Tenant diligently and continuously pursues such
cure to completion,
30
such breach shall not be deemed to create an Event of Default, so long as Master
Landlord does not declare an Event of Default under the Master Lease as a result
of such Event of Default hereunder, provided that Landlord shall promptly
provide Tenant with a copy of any notice of default served upon Landlord by
Master Landlord based upon Article 18 clause (v) and not otherwise;
(c) The taking of the estate hereby created on execution or by other
process of law; or if the Tenant shall make an assignment for the benefit of
creditors or shall be adjudicated insolvent, or shall file any petition or
answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any present or
future Federal, State or other statute, law or regulation for the relief of
debtors (other than the Bankruptcy Code, as hereinafter defined), or shall seek
or consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of the Tenant or of all or any substantial part of its properties, or
shall admit in writing its inability to pay its debts generally as they become
due; or the filing of a voluntary petition by the Tenant, or the entry of an
order for relief against the Tenant, under Chapter 7, 11, or 13 of 11 U.S.C
(S)101 et seq., as amended or replaced from time to time (the "Bankruptcy
-------
Code"); or a petition shall be filed against the Tenant under any law (other
than the Bankruptcy Code) seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future Federal, State or other statute, law or regulation and shall remain
undismissed or unstayed for an aggregate of one hundred twenty (120) days
(whether or not consecutive), or if any trustee, conservator, receiver or
liquidator of the Tenant or of all or any substantial part of its properties
shall be appointed without the consent or acquiescence of the Tenant and such
appointment shall remain unvacated or unstayed for an aggregate of one hundred
twenty (120) days (whether or not consecutive).
If an Event of Default shall occur, then, in any such case the Landlord
lawfully may, immediately or at any time or times thereafter, give notice to the
Tenant specifying the Event of Default, and this Lease shall come to an end on
the date specified therein, not earlier than thirty (30) nor later than ninety
(90) days after such notice, as fully and completely as if such date were the
date herein originally fixed for the expiration of the Lease Term, and the
Tenant will then quit and surrender the Premises to the Landlord, but the Tenant
shall remain liable as hereinafter provided.
9.2 Damages. In the event that this Lease is terminated, at the
-------
Landlord's election, the Tenant covenants to pay to the Landlord forthwith on
the Landlord's demand, as compensation, an amount (the "Lump Sum Payment") equal
to the excess, if any, of the discounted present value (discounted at an
annualized rate that is equitable at the time of the total rent ("Fixed Rent",
"Real Estate Taxes" and "Operating Expenses") reserved for the remainder of the
Term over the then discounted present fair rental value of the Premises for the
remainder of the Term. Alternatively, at the Landlord's election, the Tenant
shall pay punctually to the Landlord all the sums ("Periodic Payments") which
the Tenant covenants in this Lease to pay in the same manner and to the same
extent and at the same time as if this Lease had not been terminated. In
calculating the amounts to be paid by the Tenant under the foregoing covenant,
the Tenant shall be credited with the amount of the net proceeds of any rent
obtained by reletting the Premises, after deducting the just and proportional
part of the Landlord's reasonable expenses
31
in connection with such reletting, including, without limitation, repossession
costs, brokerage commissions, reasonable fees for legal services and expenses of
preparing the Premises for such reletting. The Landlord may (i) relet the
Premises, or any part or parts thereof, for a term or terms which may, at the
Landlord's option, exceed or be equal to or less than the period which would
otherwise have constituted the balance of the Term, and may grant such
concessions and free rent as the Landlord considers necessary to relet the same
and (ii) make such alterations, repairs and improvements in the Premises as the
Landlord considers necessary to relet the same. Landlord shall use reasonable
efforts to mitigate its damages in the event of a termination pursuant hereto.
9.3 Cumulative Rights. The specific remedies to which the Landlord may
-----------------
resort under the terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which it may be lawfully
entitled in case of any breach or threatened breach by the Tenant of any
provisions of this Lease. Nothing contained in this Lease shall limit or
prejudice the right of the Landlord to prove for and obtain in proceedings for
bankruptcy, insolvency or like proceedings by reason of the termination of this
Lease, an amount equal to the maximum allowed by any statute or rule of law in
effect at the time when, and governing the proceedings in which, the damages are
to be proved, whether or not the amount be greater, equal to, or less than the
amount of the loss or damages referred to above.
9.4 Landlord's Self-Help. If the Tenant shall at any time default in the
--------------------
performance of any obligation under this Lease, the Landlord shall have the
right, but not the obligation, upon not less than ten (10) days' prior written
notice to the Tenant (except in case of emergency, in which case no notice need
be given), to perform such obligation, and the reasonable costs to Landlord
thereof shall be payable by the Tenant to the Landlord upon demand as Additional
Rent. The Landlord may exercise its rights under this Section without waiving
any other of its rights or releasing the Tenant from any of its obligations
under this Lease.
9.5 Intentionally Omitted
---------------------
9.6 Late Charges and Interest on Overdue Payments. In the event that any
---------------------------------------------
payment of Annual Fixed Rent or Additional Rent, except such specified
components of Additional Rent as are being reasonably contested as expressly
permitted under Section 9.1 (a) hereof shall not be paid within ten (10) days of
the date the same is due, regardless of whether the same constitutes an Event of
Default, there shall become due to the Landlord from the Tenant, as Additional
Rent and as compensation for the Landlord's extra administrative costs in
investigating the circumstances of late rent, a late charge of five percent (5%)
of the amount overdue. In addition, any Annual Fixed Rent and Additional Rent
(except such specified components of Additional Rent as are being reasonably
contested as expressly permitted under Section 9.1(a) hereof) not paid within
five (5) days of when due shall bear interest from the date due to the Landlord
until paid at the variable rate (the "Default Interest Rate") equal to the
higher of (i) the rate from time to time at which interest accrues on amounts
not paid when due under the terms of the Landlord's first mortgage financing for
the Premises, as from time to time in effect, and (ii) one hundred and fifty
percent (150%) of the Interest Rate, but in no event higher than the maximum
rate permitted by law.
32
9.7 Consequential Damages. Notwithstanding anything in this Lease to the
---------------------
contrary, in no event shall either party be liable to the other under this Lease
for incidental, indirect, special or consequential damages of any kind or nature
regardless of the form of action through which such damages are sought.
10. Environmental Matters.
---------------------
10.1 Tenant's Use of Hazardous Materials.
-----------------------------------
(a) Tenant may use chemicals such as lubricants, solvents and cleaning
fluids of the kind and in amounts and in the manner customarily found and used
in the operation of an office in order to conduct its business at the Premises
and to maintain and operate customary office machinery located in the Premises
(all such chemicals being referred to herein as the "Permitted Materials").
Tenant shall not use, store, handle, treat, transport, release or dispose of any
other Hazardous Materials on or about the Premises or the Property without
Landlord's prior written consent, which Landlord may withhold or condition in
Landlord's sole discretion. Any handling, treatment, transportation, storage,
disposal or use of Hazardous Materials by the Tenant in or about the Premises or
the Property shall comply with all applicable Environmental Laws. The Tenant
shall not dispose of any Hazardous Materials on the Property, and shall not
dispose of Hazardous Materials in any trash receptacles or other facilities or
areas on the Property. Neither the Premises, nor any other part of the Property
shall be used in any manner by the Tenant for the storage of any Hazardous
Materials, except for the temporary storage of the Permitted Materials on the
Premises, provided the Permitted Materials are properly stored in a manner and
location complying with all applicable Environmental Laws. The Tenant shall be
responsible for obtaining any required authorizations, licenses or permits and
paying any fees and providing any testing required by any governmental authority
in connection with the Permitted Materials. No portion of the Premises or the
Property shall be used by the Tenant as a landfill or a dump. The Tenant shall
not install any underground tanks of any type. The Tenant shall not bring any
Hazardous Materials onto the Premises or the Property, except for the Permitted
Materials, and if so brought or found thereon, the Tenant, at its sole cost and
expense, shall immediately remove, properly dispose of, and diligently undertake
all required cleanup procedures with respect to the same pursuant to all
applicable Environmental Laws.
33
(b ) The Landlord and the Landlord's representatives shall have the
right, but not the obligation, during normal business hours upon twenty four
(24) hours prior notice (except in the case of an emergency) to enter the
Premises for the purpose of inspecting the storage, use and disposal of
Hazardous Materials and to ensure compliance with all Environmental Laws.
Should it be determined, in the Landlord's reasonable opinion, that any
Hazardous Materials are being improperly stored, used or disposed of, the Tenant
shall immediately take such corrective action, as reasonably requested by the
Landlord. Should the Tenant fail to commence such corrective action as promptly
as is reasonably possible, but in no event less than ten (10) business days
after receiving notice following the Tenant's receipt of Landlord's written
notice thereof (except that only notice as may be practical shall be required in
an emergency), the Landlord shall have the right to perform the corrective
action, and the Tenant shall reimburse Landlord upon demand as Additional Rent
for any and all costs associated with the corrective action. If, at any time
during or after the Term, the Premises or any other part of the Property are
deemed by a governmental agency to be in violation of any Environmental Law as a
result of the Tenant's Permitted Materials or any other Hazardous Materials
produced, stored or brought onto the Premises, or the Tenant's use or occupancy
of, or activity on or about the Premises or the Property, then the Tenant shall
diligently institute and prosecute to completion remediation and cleanup
procedures in full compliance with all Environmental Laws.
(c) Tenant shall give written notice to Landlord as soon as reasonably
practicable of (i) any communication received by Tenant from any governmental
authority concerning Hazardous Materials which relates to the Premises or the
Property, and (ii) any Environmental Condition of which Tenant is aware to the
extent the Environmental Condition is on the Premises, and of which Tenant has
actual knowledge to the extent the Environmental Condition is on the Property in
a location other than the Premises. For purposes hereof, "Environmental
Condition" shall mean any disposal, release or threat of release of Hazardous
Materials on, from or about the Premises or the Property or storage of Hazardous
Materials on the Property. The Tenant shall provide to the Landlord, as and when
required by the Landlord (which may be required by Landlord whenever it has
reasonable cause to so require and, otherwise, no more often than once in any
when required by the Landlord (which may be required by Landlord whenever it has
twelve (12) month period), evidence that the Tenant is using such Hazardous
Materials in compliance with all Environmental Laws, and the Tenant shall comply
with reasonable safeguards established by the Landlord for the Property Common
Areas with respect to the delivery and transportation of the Hazardous Materials
to the Premises.
10.2 Tenant's Environmental Indemnification. The Tenant agrees to
--------------------------------------
indemnify, defend and hold harmless the Master Landlord, the Landlord and any
prior or successor tenant under the Master Lease and their respective
shareholders, officers, directors, employees, agents, successors and assigns
(together, the "Landlord Indemnitees"), from and against any and all claims,
demands, liabilities, damages, losses, deficiencies, and expenses (including,
without limitation, reasonable legal, accounting, consulting, engineering, and
other expenses), which may be imposed upon, incurred by, or asserted against any
of the Landlord Indemnitees by any other party or parties (including, without
limitation, a governmental entity), arising out of, in connection with, or
relating to the subject matter of:
(a ) any actual or alleged Release or Threat of Release of any
Hazardous Material at or from the Premises in connection with the use and
possession of the Premises by the Tenant or
34
any assignee or subtenant of the Tenant, or in connection with any operations of
the Tenant or any assignee or subtenant of the Tenant at the Premises, including
without limitation, a Release or Threat of Release of Hazardous Material which
was first located at the Premises and was subsequently transported to another
location; or
(b) any actual or alleged violation of an Environmental Law in connection
with the use and possession of the Premises by the Tenant or any assignee or
subtenant of the Tenant, or with any operations of the Tenant or any assignee or
subtenant of the Tenant thereon; or
(c) The parties agree that (i) the Tenant shall not be responsible for any
environmental condition or contamination either at the Premises or at the
Property unless caused by the acts or omissions of Tenant, its servants, agents
or invitees and arising from and after the Commencement Date, and that while,
(ii) Tenant shall not be responsible for any environmental condition or
contamination at the Premises unless caused by Tenant, its servants, agents or
invitees; there shall be a rebuttable presumption as to any such environmental
condition or contamination arising after the Commencement Date within the
Premises that the same was caused by the Tenant unless the Tenant can rebut such
presumption. Notwithstanding anything to the contrary contained herein, the
Tenant shall not be responsible for any environmental condition or contamination
outside the Premises unless the same was caused by the Tenant, its servants,
agents or invitees, and there shall be a rebuttable presumption that the same
was not caused by the Tenant, its servants, agents, invitees, assignees or
subtenants if such condition arises outside of the Premises.
The provisions of this Section shall survive the expiration or earlier
termination of the Term.
10.3 Landlord's Environmental Indemnification. The Landlord agrees to
----------------------------------------
indemnify, defend and hold harmless the Tenant and its shareholders, officers,
directors, employees, agents, successors and assigns (together, the "Tenant
Indemnitees") from and against any and all claims, demands, liabilities,
damages, losses, deficiencies and expenses (including without limitation
reasonable legal, accounting, consulting, engineering, and other expenses),
which may be imposed upon, incurred by, or asserted against any of the Tenant
Indemnitees by any other party or parties (including, without limitation, a
governmental entity), arising out of, in connection with, or relating to the
subject matter of:
(a) any actual or alleged Release or Threat of Release of any Hazardous
Material at or from the Property in connection with the use and/or possession of
the Property by the Landlord, and any predecessor, assignee or subtenant of the
Landlord, or in connection with any operations of the Landlord any predecessor,
assignee or subtenant of the Landlord), including without limitation, a Release
or Threat of Release of Hazardous Material which was first located at the
Property and was subsequently transported to another location; or
(b) any actual or alleged violation of an Environmental Law in connection
with the use and/or possession of the Property by the Landlord and any
predecessor, assignee or subtenant of the Landlord), or with any operations of
the Landlord (and any predecessor, assignee or subtenant of the Landlord)
thereon.
35
The provisions of this Section shall survive the expiration or earlier
termination of the Term.
11. Mortgagees' and Ground Lessors' Rights.
--------------------------------------
11.1 Subordination, Non-Disturbance and Attornment. This Lease shall be
---------------------------------------------
subject and subordinate to any future mortgage or ground lease on the Property,
provided that the Tenant receives as part of such subordination an agreement of
non-disturbance and attornment from the holder. If such subordination shall run
in favor of an institutional holder of any future mortgage or in favor of an
institutional landlord under the Master Lease, such document shall be in form
and substance acceptable to any such institutional holder or institutional
landlord under the Master Lease. As used herein, the term "institutional
holder" or "institution" means a bank, trust company, insurance company, pension
fund, or credit issuing organization such as GECC or GMAC. If such
subordination is to run in favor of a non-institutional holder or of a non-
institutional landlord under the Master Lease, then the subordination is to be
in reasonable and customary form. The Tenant agrees on request of the Landlord
to execute, acknowledge and deliver from time to time any reasonable
documentation necessary to effectuate the provisions of this Section 11.1, and
shall execute and return such document within fifteen (15) days of receipt
thereof the failure of which shall constitute a default hereunder., upon the
expiration of five (5) days after Landlord has given Tenant notice of such
failure unless Tenant shall have complied within said five (5) days. Landlord
shall exercise diligent efforts to obtain a non-disturbance agreement from the
then current mortgagee of the Property, if any. Any subordination requested
from a future mortgagee of the Premises must include a standard and customary
form of non-disturbance agreement for the benefit of Tenant.
11.2 Estoppel Certificates. The Tenant shall from time to time, upon not
---------------------
less than fifteen (15) days' prior written request by the Landlord, execute,
acknowledge and deliver to the Landlord a written certification, with a true and
correct copy of this Lease attached thereto, (i) that this Lease is unmodified
and in full force and effect (or, if there have been any modifications, that the
same is in full force and effect as modified and stating the modifications);
(ii) that the Tenant has no knowledge of any defenses, offsets or counterclaims
against its obligations to pay the Annual Fixed Rent and Additional Rent and to
perform its other covenants under this Lease (or if there are any defenses,
offsets, or counterclaims, setting them forth in reasonable detail); (iii) that
there are no known uncured defaults of the Landlord or the Tenant under this
Lease (or if there are known defaults, setting them forth in reasonable detail);
(iv) the dates to which the Annual Fixed Rent, Additional Rent and other charges
have been paid; (v) that the Tenant has accepted and is in full possession of
the Premises (to the extent that the same is true) ; (vi) the Term, the
Commencement Date, and any other relevant dates, and that the Tenant has been in
occupancy since the Commencement Date and paying rent since the specified date;
(vii) that, except as set forth in this lease, no monetary or other
considerations, including, but not limited to, rental concessions, special
tenant improvements or Landlord's assumption of prior lease obligations of
Tenant have been granted to Tenant by Landlord for entering into this Lease;
(viii) the extent to which the Tenant has exercised the options set forth in
Section 2.5; and (ix) such other matters with respect to the Tenant and this
Lease as the Landlord may request and as are customarily to be included in such
certifications. Failure by Tenant to comply with the terms of this Section
11.2 shall constitute a default hereunder upon the expiration of five (5)
business days after Landlord has given Tenant notice of such failure unless the
Tenant shall have
36
complied within said five (5) business days. On the Commencement Date, either
party shall, at the request of the other, promptly execute, acknowledge and
deliver to the other a statement in writing that the Commencement Date has
occurred. The parties intend that this section 11.2 be reciprocal so that the
Tenant shall be entitled also to such written certification upon request from
time to time and this paragraph shall be read as if it had so been made
reciprocal; provided, however, Landlord's failure to provide such certification
on a timely basis hereunder shall not constitute a default by Landlord
hereunder.
12. Miscellaneous.
-------------
12.1 Intentionally Deleted
---------------------
12.2 Notices. Whenever any notice, approval, consent, request, election,
-------
offer or acceptance is given or made pursuant to this Lease, it shall be in
writing. Communications and payments shall be addressed, if to the Landlord, at
both the Landlord's Address and the Landlord's Counsel Address for Notices as
set forth in Exhibit A or at such other address as may have been specified by
---------
prior notice to the Tenant; and if to the Tenant, at the Tenant's Address for
Notices, but in each case also at the Tenant's Counsel Address for Notices, or
at such other place as may have been specified by prior notice to the Landlord.
Any communication so addressed shall be deemed duly given on the earlier of (i)
the date received or (ii) on the date on which tender of delivery is made. If
the Landlord by notice to the Tenant at any time designates some other person to
receive payments or notices, all payments or notices thereafter by the Tenant
shall be paid or given to the agent designated until notice to the contrary is
received by the Tenant from the Landlord. If the Tenant by notice to the
Landlord at any time designates some other person to receive payments or
notices, all payments or notices thereafter by the Landlord shall be paid or
given to the agent designated until notice to the contrary is received by the
Landlord from the Tenant.
12.3 Successors and Limitation on Liability of the Landlord. The
------------------------------------------------------
obligations of this Lease shall run with the land, and this Lease shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, subject to the limitations on the Tenant's rights set
forth herein above, and except that the Landlord and each successor landlord
shall be liable only for obligations accruing during the period of its tenancy
under the Master Lease, or if applicable, its ownership of the Property. The
obligations of the Landlord shall be binding upon the assets of the Landlord
consisting of its equity ownership of the Property, if so owned, and if not, the
Landlord's interest in the Master Lease, if any, and if not, there shall be no
such limitation. So long as the Landlord shall then own the equity in the
Property or be the sole owner of the Tenant's interest in the Master Lease,
neither the Tenant, nor anyone claiming by, under or through the Tenant, shall
be entitled to obtain any judgment creating personal liability on the part of
the Landlord or enforcing any obligations of the Landlord against any assets of
the Landlord other than its equity ownership of the Property, or of the
leasehold interest under the Master Lease.
12.4 Waivers. The failure of the Landlord or the Tenant to seek redress
-------
for violation of, or to insist upon strict performance of, any covenant or
condition of this Lease, shall not be deemed a waiver of such violation nor
prevent a subsequent act, which would have originally
37
constituted a violation, from having all the force and effect of an original
violation. The receipt by the Landlord of Annual Fixed Rent or Additional Rent
with knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No provision of this Lease shall be deemed to have been
waived by either party, unless such waiver be in writing signed by such party.
No consent or waiver, express or implied by either party to or of any breach of
any agreement or duty shall be construed as a waiver or consent to or of any
other breach of the same or any other agreement or duty.
12.5 Acceptance of Partial Payments of Rent. No acceptance by the Landlord
--------------------------------------
of a lesser sum than the Annual Fixed Rent and Additional Rent then due shall be
deemed to be other than a partial installment of such rent due, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and the Landlord may
accept such check or payment without prejudice to the Landlord's right to
recover the balance of such installment or pursue any other remedy in this Lease
provided. The delivery of keys to any employee of the Landlord or to the
Landlord's agent or any employee thereof shall not operate as a termination of
this Lease or a surrender of the Premises.
12.6 Interpretation and Partial Invalidity. If any term of this Lease, or
-------------------------------------
the application thereof to any person or circumstances, shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such term to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each term of this Lease
shall be valid and enforceable to the fullest extent permitted by law. The
titles of the Articles and Sections are for convenience only and not to be
considered in construing this Lease. This Lease contains all of the agreements
of the parties with respect to the subject matter thereof and supersedes all
prior dealings between them with respect to such subject matter.
12.7 Quiet Enjoyment. So long as the Tenant pays Annual Fixed Rent and
---------------
Additional Rent, performs all other Tenant covenants of this Lease and observes
all conditions hereof, the Tenant shall peaceably and quietly have, hold and
enjoy the Premises free of any claims by, through or under the Landlord, subject
to Landlord's right to terminate this Lease pursuant to Article 8. Tenant
acknowledges that Landlord has informed it that Landlord may expand the building
in which the Premises are located, and Tenant hereby accepts the fact that there
may be noise and other disruptions incident to any such construction. Tenant
hereby agrees that such construction work and noise shall not be a default of
this Lease so long as the construction and noise do not materially interfere
with Tenant's access to the Premises or render Tenant's use of the Premises.
Landlord will exercise reasonable efforts to minimize any such disruptions;
however, the exercise of such efforts shall not include a requirement that the
construction work take place at other than regular business hours.
12.8 Brokerage. The Tenant and Landlord both represent and warrant to the
---------
other that it has had no dealings with any broker or agent in connection with
this Lease other than XXX Xxxxxxxx Commercial Company and Xxxxx & Xxxxx and each
shall indemnify and hold the other harmless from claims for any brokerage
commission predicated upon prior dealings with the Landlord or Tenant,
respectively, by any broker other than the brokers named in this Section. The
Landlord shall be responsible to pay the aforesaid brokers all amounts owed them
in connection with the execution of this Lease.
38
12.9 Surrender of Premises and Holding Over. The Tenant shall surrender
--------------------------------------
possession of the Premises on the last day of the Term and the Tenant waives the
right to any notice of termination or notice to quit. The Tenant covenants that
upon the expiration or sooner termination of this Lease, it shall, without
notice, deliver up and surrender possession of the Premises in the same
condition in which the Tenant has agreed to keep the same during the continuance
of this Lease and in accordance with the terms hereof, reasonable wear and tear
and damage by fire or other casualty or as a consequence of the exercise of
eminent domain excepted, first removing therefrom all goods and effects of the
Tenant and, to the extent required or permitted under Section 4.2, any leasehold
improvements, and repairing all damage caused by such removal. Upon the
expiration of this Lease, or, if the Premises should be abandoned by the Tenant,
at the time of such expiration or abandonment, if the Tenant or the Tenant's
agents, subtenants or any other person should leave any property of any kind or
character on or in the Premises, the fact of such leaving of property on or in
the Premises shall be conclusive evidence of intent by the Tenant, and
individuals and entities deriving their rights through the Tenant, to abandon
such property so left in or upon the Premises, and such leaving shall constitute
abandonment of the property. Landlord shall have the right and authority
without notice to the Tenant or anyone else, to remove and destroy, or to sell
or authorize disposal of such property, or any part thereof, without being in
any way liable to the Tenant therefor and the proceeds thereof shall belong to
the Landlord as compensation for the removal and disposition of such property.
If the Tenant fails to surrender possession of the Premises upon the
expiration or sooner termination of this Lease, the Tenant shall pay to
Landlord, as rent for any period after the expiration or sooner termination of
this Lease an amount equal to one and one-half (1 1/2) times the Annual Fixed
Rent and the Additional Rent required to be paid under this Lease as of the
expiration or termination of the Term. Acceptance by the Landlord of such
payments shall not constitute a consent to a holdover hereunder or result in a
renewal or extension of the Tenant's rights of occupancy. Such payments shall
be in addition to and shall not affect or limit the Landlord's right of re-
entry, Landlord's right to collect such damages as may be available at law, or
any other rights of the Landlord under this Lease or as provided by law.
12.10 Exhibits. Exhibits A through Exhibit G attached to this Lease are
-------- ---------- ----------
hereby incorporated in and made a part of this Lease.
12.11 Master Lease Landlord shall at all times keep the Master Lease in
------------
full force and effect, except in connection with the exercise of a termination
right by reason of a casualty or condemnation of the Premises pursuant to
Section 11 or Section 12 of the Master Lease, subject to the limitations set
forth in Section 2.1 of this Lease or in connection with a termination of the
Master Lease pursuant to a purchase of the Property by Landlord. In the event
that Landlord purchases the Property or the Premises (whether pursuant to the
exercise of a right contained within the Master Lease or otherwise), then in
any such event this Lease shall become a direct lease between Landlord and
Tenant and shall remain in full force and effect despite the termination of the
Master Lease or the merger of the Premises demised by the Master Lease with fee
simple title to the Property or the Premises. In the event that the consent of
the Master Landlord is required pursuant to this Lease, then Landlord shall use
reasonable efforts to obtain such consent from the Master Landlord. If the
performance of any obligation of Landlord
39
hereunder requires either the performance of the Master Landlord or the consent
of the master Landlord, then Landlord shall exercise reasonable efforts to
obtain the same from Master Landlord and shall exercise reasonable efforts to
enforce any right that it has under the Master Lease to such performance against
Master Landlord.
12.12 Financial Information. Tenant will cooperate with Landlord's
-----------------------
request that Tenant provide reasonable information about its own financial
status for the benefit of lenders and prospective lenders of Landlord's whenever
Landlord may so request.
EXECUTED as an instrument under seal as of the day and year first set forth
above.
LANDLORD:
XXXXXX TECHNOLOGY PARK LLC
By: NTP Management Company LLC
By: /s/ Xxxx X. Xxxxxx
------------------------------------
XXXX X. XXXXXX, Manager
TENANT:
LIFEF/X, INC.
By: /s/ Lucie Salmany
-----------------------------
Name: Lucie Salmany
Title: CHIEF EXECUTIVE OFFICER
40
EXHIBIT A
Basic Lease Terms
-----------------
Annual Fixed Rent Annual Monthly
for Office(10,000 rsf) Electricity Charge Total Payment
years 1-5 ---------------------------------------------------------------------------
$290,000 (29.00/Sq. Ft.) $10,000 $300,000 $25,000
Initial Term: Five years commencing on the Commencement Date (as
------------ defined in Section 2.6 of the Lease) and expiring on
the last day of the calendar month in which the 5th
anniversary of the Commencement Date falls (unless
sooner terminated pursuant to the Lease).
Landlord's
----------
Address:
-------
c/o Crosspoint Associates, Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
and Xxxxx X. Xxxxxx, III
Landlord's Counsel
------------------
Address for Notices: Xxxxx, Xxxxxxxx & Strong, LLP
------------------- Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esquire
Premises: All of the second floor of the Building N1, 153
-------- Xxxxxxx Street, Newton, Massachusetts, consisting of
10,000 rentable square feet as shown on the floor plan
attached as Exhibit D.
---------
Rentable Floor Area
of the Premises: 10,000 square feet
---------------
Permitted Uses: Office use and other uses permitted by law, but not
-------------- any retail use. If Tenant shall receive notice from
the City of Xxxxxx that the conduct of Tenant's
business of developing, maintaining and marketing
software and communication technology is in violation
of the applicable zoning and use laws, in such event,
if Tenant is unable to obtain the necessary approval
to conduct such business, Tenant may elect to
terminate this Lease by notice to Landlord and payment
of an amount equal to six (6) months Fixed Rent. Such
election must be exercised by written notice not later
than thirty
41
(30) days following (i) receipt of such notice from
the City of Xxxxxx or (ii) unsuccessful conclusion of
any administrative or judicial proceedings either by
way of appealing any such contention by the City of
Xxxxxx or seeking to establish the validity of
Tenant's position that the Premises may be used for
the conduct of its business as aforesaid, whichever is
later.
Tenant's
--------
Address for Notices: Attention: Chief Executive Officer
------------------- LIFEF/X, INC.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Tenant's Counsel Xxxxxxx X. Xxxxxxxx, Esq.
---------------- Holland & Knight LLP
Address for Notices: Xxx Xxxxxx Xxxxxx
------------------- Xxxxxx, Xxxxxxxxxxxxx 00000
42
EXHIBIT B
Legal Description of the Land
-----------------------------
A certain parcel of land with the buildings thereon situated in Newton,
Middlesex County, Commonwealth of Massachusetts, being shown as a lot containing
486,128 square feet more or less on a plan entitled "Plan of Land in Newton
Mass", dated August 4, 1967, by Xxxxxx X. Xxxxxx, Registered Surveyor, bounded
and described, as shown on said plan, as follows:
SOUTHEASTERLY by Xxxxxxx Street, 843.87 feet;
SOUTHWESTERLY by land now or formerly of Dearfoot Farms Co., formerly
National Dairies Co., 701.55 feet;
NORTHWESTERLY by land of N.Y.N.H. & Hartford Railroad, 790.79 feet;
NORTHERLY by land now or formerly of New England Concrete Pipe Co.,
176.05 feet; and
NORTHEASTERLY by land now or formerly of said New England Concrete Pipe Co.,
492.74 feet.
43
EXHIBIT C
Site Plan
---------
44
EXHIBIT C
[MAP APPEARS HERE]
EXHIBIT D
Floor Plan
----------
45
EXHIBIT D
Floor Plan
----------
[MAP APPEARS HERE]
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx 0, Xxxxxxx Xx. XxxxxXxxxx Associates, Inc.
Newton, MA Second Floor Plan 000 Xxxx Xxxxxxx Xx. Xxxxxx, XX 00000 (508) 655-0505
-----------------------------------------------------------------------------------------------------------------------------
EXHIBIT E
Rules and Regulations
---------------------
I. The following regulations are generally applicable:
(a) The public sidewalks and parking areas and other Property Common
Areas shall not be obstructed or encumbered by Tenant or used for any purpose
other than their intended use.
(b) No awnings, curtains, blinds shades, screens or other projections
shall be attached to or hung on any outside wall of any of the Buildings.
(c) No show cases or other articles shall be put in front of or affixed
to any part of the exterior of any of the Buildings.
(d) Tenant shall not use the Premises or any part thereof or permit the
Premises or any part thereof to be used as a public employment bureau or for the
sale of property of any kind at auction, except in connection with Tenant's
business.
(e) Tenant must, upon the termination of its tenancy, deliver to the
Landlord all locks, cylinders and keys for the interior and exterior of the
Premises.
(f) Tenant shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of neighboring
buildings or premises or those having business with them.
(g) The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
(h) The Landlord shall have the right, exercisable upon thirty days prior
notice to Tenant and without liability to any tenant, to change the name and
street address of the Buildings; however, in the event of any such change made
by the Landlord, Landlord shall reimburse Tenant for the reasonable expenses
incurred by Tenant in changing its letterhead, business cards and other
stationary;
II. The following regulations are applicable to any additions, alterations or
improvements being undertaken by or for Tenant in the Premises:
A. General
-------
1. All alterations, installations or improvements ("Alterations") to be
made by Tenant in, to or about the Premises shall be made in accordance with the
requirements of the Lease itself as further modified by this Exhibit and by
contractors or mechanics approved by Landlord.
2. Tenant shall, prior to the commencement of any work other than Minor
Alterations ("Major Alterations"), submit for Landlord's written approval,
complete plans for any Alterations,
48
although in the case of Minor Alterations such plans may simply be schematic
plans and need not be certified to by an architect or engineer.. Drawings are to
be complete with full details and specifications for all of the Major
Alterations. (Drawings presented for Landlord's review need not include detailed
layout or mapping of voice and data cables.)
3. Alterations must comply with the Building Code applicable to the
Property and the requirements, rules and regulations and any other governmental
agencies having jurisdiction.
4. No work shall be permitted to commence without the Landlord being
furnished with a valid permit and all other necessary approvals from agencies
having jurisdiction (to the extent but only to the extent that same are required
to commence and perform the alterations).
5. All demolition, removals or other categories of work that may
inconvenience other tenants or disturb Property operations must be scheduled in
advance and performed before or after normal working hours and Tenant shall
provide the Landlord with at least 24 hours' notice prior to proceeding with
such work; however, any such demolition, removal and other categories of work
that are conducted entirely inside Building N2 may be performed during normal
working hours but shall be performed so as to minimize disruption to other
tenants to the maximum extent possible, and any related delivery or removal of
materials shall take place at the loading dock at the back of Building N2.
B. Prior to Commencement of Work
-----------------------------
1. Tenant shall submit to the Landlord a request to perform the work.
The request shall include the following enclosures:
(i) A list of Tenant's contractors and/or subcontractors for
Landlord's approval.
(ii) A complete set of plans and specifications properly stamped by a
registered architect or professional engineer, if required under this Lease.
(iii) A properly executed building permit application form if
required.
(iv) Four executed copies of the Insurance Requirements agreement in
the form attached to these Tenant's Work Requirements as Exhibit IR from
Tenant's contractor and if requested by Landlord from the contractor's
subcontractors.
(v) Contractor's and subcontractor's insurance certificates
including an indemnity in accordance with the Insurance Requirements agreement.
In connection with Minor Alterations, Tenant shall provide Landlord with prior
written notice of the nature and timing of such Minor Alterations as well as
copies of plans and specifications, if any, concerning such modifications.
2. Landlord will return the following to Tenant:
49
(i) Two sets of plans approved or a disapproval with specific
comments as to the reasons therefor (such approval or comments shall not
constitute a waiver of approval of governmental agencies).
(ii) Two fully executed copies of the Insurance Requirements
agreement.
3. To the extent required to perform any Alterations, Tenant shall obtain
a building permit and other necessary permits from other governmental agencies.
Tenant shall be responsible for keeping current all permits. Tenant shall submit
copies of all approved plans and permits to Landlord and shall post the original
permit on the Premises prior to the commencement of any work. All work, if
performed by a contractor or subcontractor, shall be subject to reasonable
supervision and inspection by Landlord's representative during normal business
hours and upon no less than twenty four (24) hours advance notice except in the
case of emergencies for which no advance notice shall be required.
C. Requirements and Procedures
---------------------------
1. Tenant's contractor shall:
(i) have a superintendent or xxxxxxx on the Premises at all times;
(ii) police the job at all times, continually keeping the Premises
orderly;
(iii) minimize disruption to other tenants.
2. If Tenant's contractor is negligent in any of its responsibilities,
Tenant shall be charged for corrective work arising from such negligence.
3. Upon completion of the Alterations, and to the extent required by
applicable law for the lawful occupancy of the Alterations Tenant shall submit
to Landlord an unconditional t certificate of occupancy and final approval by
the other governmental agencies having jurisdiction.
4. Tenant shall submit to Landlord a final "as-built" set of drawings
showing all items of the Alterations in full detail.
5. Additional and differing provisions in the Lease (including without
limitation the provisions of Article 4 thereof),if any, will be applicable and
will take precedence.
6. Landlord's approval of the plans, drawings, specifications or other
submissions in respect of any work, addition, alteration or improvement to be
undertaken by or on behalf of Tenant shall create no liability or responsibility
on the part of Landlord for their completeness, design sufficiency or compliance
with requirements of any applicable laws, rules or regulations of any
governmental or quasi-governmental agency, board or authority.
50
Attachment IR to Exhibit E
Contractor's Insurance Requirements
-----------------------------------
Building: ____________________________
Landlord: ____________________________
Tenant: ______________________________
Premises: ____________________________
The undersigned contractor or subcontractor ("Contractor") has been hired by the
tenant or occupant (hereinafter called "Tenant") of the Building named above (or
by Tenant's contractor) to perform certain work ("Work") for Tenant in the
Building identified above. Contractor and Tenant have requested the undersigned
landlord ("Landlord") to grant Contractor access to the Building and its
facilities in connection with the performance of the Work, and Landlord agrees
to grant such access to Contractor upon and subject to the following terms and
conditions:
1. Contractor agrees to indemnify and save harmless the Landlord, and its
officers, employees and agents and their affiliates, subsidiaries and partners,
and each of them, from and with respect to any claims, demands, suits,
liabilities, losses and expenses, including reasonable attorneys' fees, arising
out of or in connection with the Work (and/or imposed by law upon any or all of
them) because of personal injuries, bodily injury (including death at any time
resulting therefrom) and loss of or damage to property, including consequential
damages, to the extent that such injuries to person or property are claimed to
be due to negligence of the Contractor except to the extent specifically
prohibited by law (and any such prohibition shall not void this Agreement but
shall be applied only to the minimum extent required by law). [Landlord agrees
to revise this Section to the extent reasonably requested by Contractor].
2. Contractor shall provide and maintain at its own expense, until
completion of the Work, the following insurance:
(a) Workmen's Compensation and Employers, Liability Insurance covering
each and every xxxxxxx employed in, about or upon the Work, as provided for by
applicable law.
(b) Comprehensive General Liability Insurance including coverages for
Protective and Contractual Liability (to specifically include coverage for the
indemnification clause of this Agreement) for not less than the following
limits:
Personal Injury:
$3,000,000 per person
$10,000,000 per occurrence
51
Property Damage:
$3,000,000 per occurrence $3,000,000 aggregate
In the case of Minor Alterations, the Personal Injury limits may
be reduced to $1,000,000 per person and $5,000,000 per
occurrence.
(c) Comprehensive Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the Work)
for not less than the following limits:
Bodily Injury:
$1,000,000 per person
$1,000,000 per occurrence
Property Damage:
$1,000,000 per occurrence
Contractor shall furnish a certificate from its insurance carrier or
carriers to the Building office before commencing the Work, showing that it has
complied with the above requirements regarding insurance and providing that the
insurer will give Landlord ten (10) days' prior written notice of the
cancellation of any of the foregoing policies.
3. Contractor shall require all of its subcontractors engaged in the Work
to provide the following insurance:
(a) Comprehensive General Liability Insurance including Protective and
Contractual Liability coverages with limits of liability at least equal to the
limits stated in paragraph 2(b).
(b) Comprehensive Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the Work)
with limits of liability at least equal to the limits stated in paragraph 2(c).
52
Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
Agreed to and executed this ___ day of _____________, 2000.
Contractor:
By: ________________________
By: ________________________
By: ________________________
53
EXHIBIT F
Exclusions from Operating Expenses
----------------------------------
(1) costs of repairs or replacements to the extent reimbursed by insurance,
other tenants of the Property or other third parties or resulting from
eminent domain takings to the extent covered by the award;
(2) Real Estate Taxes on the Property, and any costs which have been previously
included in Operating Expenses (whether under the same or a different
category);
(3) financing and refinancing costs in respect of any mortgage or ground lease
placed upon the Property or leasehold estate or the Master Lease,
including, without limitation, debt service, amortization, points and
commissions in connection therewith and rent or other charges payable under
any ground or underlying lease (including, without limitation, the Master
Lease);
(4) costs of selling or syndicating any of Landlord's interest in the Premises,
leasehold estate, and/or the Property;
(5) brokerage fees or commissions;
(6) interest or penalties for any delinquent payments by Landlord unless and to
the extent resulting from the Tenant's failure to pay, when and as due, the
Tenant's Operating Expenses or Taxes Allocable to the Premises (in which
case the Tenant shall be responsible for 100% of such interest or
penalties);
(7) the cost of making leasehold improvements and decorations to any leasable
space including, without limitation, to prepare the same for occupancy by a
tenant thereof, or thereafter for the benefit of a particular tenant or
tenants, or other costs for rentable space that would normally be borne by
the Tenant of such space, such as repairs within the space, or utility
service or consumption for that space, whether or not vacant.
(8) any expenditures on account of Landlord's acquisition of air or similar
development rights unless said development rights provide additional
parking or amenities for the benefit of all Tenants;
(9) the cost of capital improvements or replacements in excess of the
------------
amortization therefor on a straight-line basis over the useful life of the
item as determined by taking the average of the useful life as determined
by industry standards and as determined in accordance with generally
accepted accounting principles, consistently applied, together with
interest on the unamortized balance at Landlord's actual borrowing rate on
funds borrowed for the purpose of constructing such capital improvements or
replacements or at the Interest Rate if there is no such borrowing;
54
(10) costs of constructing additions to any existing buildings on the Property,
or new buildings on the Property, or otherwise further developing
additional rentable space on the Property;
(11) Landlord's depreciation of the Buildings or other improvements or
amortization of personal property or equipment, except as provided in
clause (12) above;
(12) the cost of providing any service to Tenant for which Landlord shall
receive direct payment from the Tenant; and
(13) salaries and other compensation (including, without limitation, fringe
benefits) of executives or principals of Landlord, or of employees not
employed at and for the benefit of the Property, except as to such
employees, only to the extent for actual services performed at the
Property; and
(14) any environmental costs, including, without implied limitation, for
evaluating or remediating any environmental condition, contamination or
release.
55
EXHIBIT G
Landlord's Work
---------------
Landlord shall paint premises, clean carpets and provide new vestibule.
56
EXHIBIT H
Master Lease
57
