EXHIBIT 10.13
TWO EXECUTIVE DRIVE - CHELMSFORD
LEASE
- dated March 2, 1994-
between Metropolitan Life Insurance Company and
Adra Systems, Inc.
TWO EXECUTIVE DRIVE - CHELMSFORD
TABLE OF CONTENTS
Page
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ARTICLE I....................................................................................................... 1
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SUMMARY OF BASIC LEASE PROVISIONS............................................................................... 1
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1.1 BASIC DATA......................................................................................... 1
1.2 DEFINITIONS........................................................................................ 3
1.3 ENUMERATION OF EXHIBITS............................................................................ 4
ARTICLE II...................................................................................................... 5
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DESCRIPTION OF PREMISES AND APPURTENANT RIGHTS; RENTABLE AREA................................................... 5
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2.1 LOCATION OF PREMISES............................................................................... 5
2.2. APPURTENANT RIGHTS AND RESERVATIONS................................................................ 5
ARTICLE III..................................................................................................... 6
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TERM OF LEASE; CONSTRUCTION..................................................................................... 6
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3.1 LEASE TERM, COMMENCEMENT DATE...................................................................... 6
3.2 RIGHT OF FIRST REFUSAL............................................................................. 7
3.3 EARLY TERMINATION.................................................................................. 7
3.4 LIMITATION OF RIGHTS............................................................................... 8
3.5 DELIVERY OF PREMISES............................................................................... 8
3.6 TENANT'S WORK...................................................................................... 8
3.7 COSTS OF TENANT'S WORK............................................................................. 9
3.8 TENANT'S ALLOWANCE................................................................................. 9
3.9 COMMON AREA CONSTRUCTION........................................................................... 10
ARTICLE IV...................................................................................................... 10
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RENT............................................................................................................ 10
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4.1 RENT............................................................................................... 10
ARTICLE V....................................................................................................... 11
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USE OF PREMISES................................................................................................. 11
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5.1 PERMITTED USE...................................................................................... 11
5.2 ALTERATIONS........................................................................................ 14
ARTICLE VI...................................................................................................... 14
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ASSIGNMENT AND SUBLETTING....................................................................................... 15
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6.1 PROHIBITION........................................................................................ 15
6.2 ACCEPTANCE OF RENT FROM TRANSFEREE................................................................. 17
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ARTICLE VII.................................................................................................... 17
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RESPONSIBILITY FOR REPAIRS..................................................................................... 17
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7.1 REPAIRS........................................................................................... 17
ARTICLE VIII................................................................................................... 19
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SERVICES TO BE FURNISHED BY LANDLORD........................................................................... 19
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8.1 CLEANING SERVICES................................................................................. 19
8.2 OTHER SERVICES.................................................................................... 19
8.3 ADDITIONAL SERVICES............................................................................... 20
8.4 CAUSES BEYOND CONTROL OF THE LANDLORD............................................................. 20
ARTICLE IX..................................................................................................... 20
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REAL ESTATE AND OTHER TAXES; OTHER EXPENSES.................................................................... 20
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9.1 LANDLORD TO PAY REAL ESTATE TAXES................................................................. 20
9.2 TENANT'S SHARE OF REAL ESTATE TAXES............................................................... 20
ARTICLE X...................................................................................................... 22
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OPERATING COSTS................................................................................................ 22
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10.1 TENANT'S SHARE OF INCREASES IN OPERATING COSTS.................................................... 22
10.2 REVIEW OF BOOKS AND RECORDS....................................................................... 25
ARTICLE XI..................................................................................................... 25
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INDEMNITY...................................................................................................... 25
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11.1 TENANT'S INDEMNITY................................................................................ 25
11.2 TENANT'S RISK..................................................................................... 26
11.3 INJURY CAUSED BY THIRD PARTIES.................................................................... 26
ARTICLE XII.................................................................................................... 26
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THE LANDLORD'S ACCESS TO PREMISES.............................................................................. 26
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12.1 LANDLORD'S RIGHT OF ACCESS........................................................................ 26
ARTICLE XIII................................................................................................... 27
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CASUALTY....................................................................................................... 27
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13.1 DEFINITION OF "SUBSTANTIAL DAMAGE"AND "PARTIAL DAMAGE"............................................ 27
13.2 PARTIAL DAMAGE TO THE BUILDING.................................................................... 27
13.3 SUBSTANTIAL DAMAGE TO THE BUILDING................................................................ 27
13.4 RESTORATION....................................................................................... 27
13.5 ABATEMENT OF RENT................................................................................. 28
13.6 MISCELLANEOUS..................................................................................... 28
ARTICLE XIV.................................................................................................... 29
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EMINENT DOMAIN................................................................................................. 29
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14.1 RIGHTS OF TERMINATION FOR TAKING.................................................................. 29
14.2 PAYMENT OF AWARD.................................................................................. 29
14.3 ABATEMENT OF RENT................................................................................. 30
14.4 MISCELLANEOUS..................................................................................... 30
ARTICLE XV..................................................................................................... 30
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INSURANCE...................................................................................................... 30
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15.1 PUBLIC LIABILITY AND PROPERTY INSURANCE........................................................... 30
15.2 NON-SUBROGATION................................................................................... 31
15.3 EXTRA HAZARDOUS USE............................................................................... 31
15.4 PROPERTY INSURANCE................................................................................ 31
ARTICLE XVI.................................................................................................... 32
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DEFAULT........................................................................................................ 32
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16.1 TENANT'S DEFAULT.................................................................................. 32
16.2 LANDLORD'S DEFAULT................................................................................ 34
ARTICLE XVII................................................................................................... 35
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MISCELLANEOUS PROVISIONS....................................................................................... 35
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17.1 WAIVER............................................................................................ 35
17.2 COVENANT OF QUIET ENJOYMENT....................................................................... 35
17.3 NO PERSONAL LIABILITY OF THE LANDLORD............................................................. 35
17.4 NOTICE TO MORTGAGEE AND GROUND LESSOR; OPPORTUNITY TO CURE........................................ 36
17.5 ASSIGNMENT OF RENTS............................................................................... 36
17.6 NO BROKERAGE...................................................................................... 37
17.7 INVALIDITY OF PARTICULAR PROVISIONS............................................................... 37
17.8 PROVISIONS BINDING, ETC........................................................................... 37
17.9 RECORDING......................................................................................... 37
17.10 NOTICES......................................................................................... 38
17.11 WHEN LEASE BECOMES BINDING...................................................................... 38
17.12 SECTION HEADINGS................................................................................ 38
17.13 RIGHTS OF MORTGAGEE............................................................................. 38
17.14 STATUS REPORT; MODIFICATION..................................................................... 40
17.15 SECURITY DEPOSIT................................................................................ 40
17.16 SELF-HELP....................................................................................... 41
17.17 RELIEF LIMITED.................................................................................. 41
17.18 HOLDING OVER.................................................................................... 42
17.19 CERTIFICATE..................................................................................... 42
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TWO EXECUTIVE DRIVE CHELMSFORD
LEASE
This instrument is an Indenture of Lease between Metropolitan Life
Insurance Company (the "Landlord") and Adra Systems, Inc., a Delaware
corporation (the "Tenant").
The parties to this instrument hereby agree with each other as follows:
Article I
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SUMMARY OF BASIC LEASE PROVISIONS
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1.1 BASIC DATA
Date: March 2, 1994
Landlord: Metropolitan Life Insurance Company
Present Mailing Address of Landlord: Real Estate Investments
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Tenant: Adra Systems, Inc.
Present Mailing Address of Tenant: 00 Xxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 until the
Commencement Date and thereafter at the
Leased Premises.
Leased Premises: Premises consisting of 39,368 rentable
square feet of space on the third floor
and 2,929 rentable square feet of space
on the first floor, of the building
located at Two Executive Drive,
Chelmsford, Massachusetts, as shown on
Exhibit A and A-1.
Rentable Area: 42,297, representing 39,368 rentable
square feet on the third floor, and
2,929 rentable square feet on the first
floor of the Building.
Lease Term: 120 calendar months, (plus the partial
month, if any, immediately following the
Commencement Date).
Rent: Rent due and payable by the Tenant shall
be an amount equal to the sum of two
components, Base Rent and Base Operating
Costs and Taxes.
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First, Base Rent due and payable by
the Tenant shall be the following
amounts:
From and after the
Commencement Date during the
first ninety (90) days of the
Lease Term (the "Free Rent
Period"), at the rate of zero
dollars per calendar month;
Year 1 -Thereafter, during the
remainder of the first Year of
the Term, at the rate of
$12,336.63 per calendar month;
Year 2 - During the second
Year of the Term, at the rate
of $13,217.81 per calendar
month;
Year 3 During the third Year
of the Term, at the rate of
$14,099.00 per calendar month;
Year 4 - During the fourth
Year of the Term, at the rate
of $14,980.19 per calendar
month;
Year 5 - During the fifth Year
of the Term, at the rate of
$15,861.38 per month; and
Years 6-10 -During the sixth
through tenth Years of the
Term, at the rate of
$19,033.65 per calendar month;
Second, Base Operating Costs and
Taxes, from and after the
Commencement Date and throughout
the entire Lease Term, shall be at
the rate of $15,861.38.
Security Deposit: $12,336.63
Tenant's Parking Spaces: 184, unassigned.
Tenant's Proportionate Share: 36.02%
Escalation Basis for Operating Costs: An amount equal to the greater of:
(i) the actual Operating Costs for
the Building and the Lot, adjusted
to reflect full occupancy for
twelve months, for the first twelve
(12) calendar months of the Term of
the Lease, or (ii) $458,130.
Escalation Basis for Operating Costs: $70,297
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1.2 DEFINITIONS
As used in this Lease, the terms defined in this Section 1.2 shall have the
following meanings:
Building: as defined in Section 2.1.
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Building Manager means Lincoln Property Company, or such other managing
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agent as may be designated by the Landlord.
Common Elements of the Property means all areas in, and elements of, the
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Building other than those areas and elements leased, or available for
leasing, to individual tenants, including lobbies and stairways, elevators,
common areas and facilities, and common equipment in the Building, such as
common heating, air-conditioning, ventilating, electrical, plumbing and
mechanical systems, and all areas on the Lot available for the common use
and benefit of tenants in the Building, including parking areas, common
walkways and landscaped areas.
Delivery Notice: as defined in Section 3.5.
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Environmental Laws: means any local, state or federal laws, regulations,
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bylaws or ordinances, currently existing or hereinafter enacted or adopted,
which regulate or relate to the protection, preservation, remediation or
enhancement of the environment, including without limitation, the Resource
Conservation Recovery Act, 42 U.S.C., Section 6901 et seq., the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq., and the Massachusetts Oil and Hazardous
Release Prevention Act, M.G.L. ch.21E.
Hazardous Material: means "Oil" and "Hazardous Material," as such terms are
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defined in M.G.L., ch.21E, 2, and any other substance, material or waste of
any kind which are regulated or becomes regulated under Environmental Laws.
Landlord's Demolition Work: as defined in Section 3.5.
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Lease means this lease agreement including all of its Exhibits as executed
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and delivered, as amended from time to time pursuant to the terms hereof.
Lease Value: as defined in Section 16.1.
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Lease Year: as defined in Section 10.1(c).
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Lot means the land area described in Exhibit B, subject to minor
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adjustments by the Landlord from time to time during the Lease Term.
Monthly Base Operating Costs and Taxes: as defined in Section 1.1.
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Operating Costs: as defined in Section 10.1(a).
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Operating Cost Excess: as defined in Section 10.1(b).
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Operation: as defined in Section 10.1(c)(1).
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Partial Lease Year: as defined in Section 10.1(c).
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Partial Damage: as defined in Section 13.1.
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Permitted Use: Business and professional offices, and maintenance and
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repair of computer hardware components and ancillary shipping and receiving
including, without limitation, computer hardware and software components
and Tenant's furniture. equipment, personal property and office products
(as permitted by applicable law).
Premises: as defined in Section 2.1.
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Property: as defined in Section 10.1(c)(1).
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Rules and Regulations: as set forth in Exhibit C and as the same may be
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amended by the Landlord from time to time.
Substantial Damage: as defined in Section 13.1.
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Taxes: as defined in Section 9.1.
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Tenant's Work: as defined in Section 3.6.
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Year of the Term: means any twelve (12) calendar month period during the
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Lease Term beginning on (a) any anniversary of the Commencement Date or if
the Commencement Date occurs on a date other than the first day of a
calendar month, the first day of the succeeding calendar month, and ending
on (b) the last day of the twelfth calendar month of such period.
1.3 ENUMERATION OF EXHIBITS
The following Exhibits attached to this Lease are hereby incorporated into
the Lease by reference:
Exhibit A: - Plan Showing the First Floor Premises
Exhibit A-1: - Plan Showing the Third Floor Premises
Exhibit B: - Description of the Lot
Exhibit C: - Rules and Regulations
Exhibit D: - Plans and Specifications for Tenant's Work
Exhibit E: - Sign Standards
Exhibit F: - Cleaning Schedule
Exhibit G: - Other Services of the Landlord
Exhibit H: - Clerk's Certificate
Exhibit I: - Common Area/Demolition Letter
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Exhibit J: - Restroom Work Letter
Article II
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DESCRIPTION OF PREMISES AND APPURTENANT RIGHTS; RENTABLE AREA
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2.1 LOCATION OF PREMISES
The Landlord hereby leases to the Tenant, and the Tenant hereby accepts
from the Landlord, the premises (the "Premises") identified on Exhibits A and X-
0 in the Landlord's building (the "Building") located on land owned by the
Landlord on the Lot (the "Lot"), as shown on Exhibit B, Two Executive Drive,
Chelmsford, Massachusetts. Nothing in Exhibits A or A-1 shall be treated as a
representation that the Premises (other than the Rentable Area thereof described
in Section 1.1) shall be precisely of the dimensions or shapes as shown, it
being the intention of the parties only to show diagrammatically, rather than
precisely, on Exhibits A and A-1 the layout of the Premises.
2.2. APPURTENANT RIGHTS AND RESERVATIONS
The Tenant shall have, as appurtenant to the Premises, rights to use in
common with others entitled thereto:
(a) the common facilities included in the Building or Lot, including
common walkways, driveways, landscaped areas and grounds, common restrooms,
lobbies, hallways, ramps, stairways, loading docks, and elevators;
(b) the parking facility (including the visitor's parking area and
parking spaces reserved for the disabled), to the extent only of the number
of the Tenant's Parking Spaces, at locations which may from time to time be
designated by the Landlord. Use of the parking facility at times other than
between the hours of 8:00 AM and 6:00 PM, Monday through Friday, and 8:00
AM and 1:00 PM Saturdays (legal holidays excepted) shall be subject to the
right of the Landlord to restrict parking during snowplowing operations,
and during repair, maintenance and restriping work affecting the parking
area;
(c) the pipes, ducts, conduits, wires and appurtenant equipment
serving the Premises;
(d) if the Premises include less than the entire Rentable Area of any
floor, the common toilets in the central core area of such floor; and
(e) use of the cafeteria to be constructed in the Building by the
Landlord pursuant to Section 3.8.
Such rights shall always be subject to the Rules and Regulations set forth in
Exhibit C, as the may be amended by the Landlord from time to time and such
other reasonable rules and regulations from time to time established by the
Landlord by suitable notice, and to the right of
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the Landlord to designate and change from time to time areas and facilities so
to be used, provided that any such change does not unreasonably interfere with
Tenant's use of the Premises.
Not included in the Premises are the roof or ceiling, the floor and all
perimeter walls of the space identified in Exhibits A and A-1, except the inner
surfaces thereof and the perimeter doors and windows. The Tenant agrees that the
Landlord shall have the right to place in the Premises (but in such manner as
not unreasonably to interfere with the Tenant's use of the Premises) utility
lines, telecommunication lines, shafts, pipes and the like, for the use and
benefit of the Landlord and other tenants in the Building, and to replace and
maintain and repair such lines, pipes and the like, in, over and upon the
Premises. Such utility lines, pipes and the like, shall not be deemed part of
the Premises under this Lease.
Article III
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TERM OF LEASE; CONSTRUCTION
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3.1 LEASE TERM, COMMENCEMENT DATE
The term of this Lease shall be the period specified in Section 1. 1 hereof
as the "Lease Term or "Term." If Section 1.1 provides for a fixed Commencement
Date, then the Commencement Date of the Term hereof shall be such date.
Otherwise, the Lease Term shall commence on the Commencement Date shall be, the
first to occur of:
(a) The date which is one hundred fifty (150) days after the date of
the Landlord's Delivery Notice;
(b) The date of Substantial Completion of Tenant's Work, as provided
in Section 3.6, below; or
(c) The date upon which the Tenant commences beneficial use of the
Premises (as distinguished from the conduct of construction work to be
performed by the Tenant in the Premises incident to preparing the Premises
for the Tenant's own use).
The Tenant shall, in all events, be treated as having commenced beneficial use
of the Premises when it begins to move into the Premises furniture and equipment
for its regular business operations.
As soon as may be convenient after the Commencement Date has been
determined, the Landlord will deliver to the Tenant a written declaration in
which the Commencement Date and specified term of this Lease shall be stated,
which shall be conclusive and binding upon the parties, unless a notice of
objection thereto is delivered by the Tenant to the Landlord within seven (7)
days.
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3.2 RIGHT OF FIRST REFUSAL
During the Term of this Lease the Tenant shall have a right of first
refusal with respect to any space or portion of any space available from time to
time for leasing in the Building as follows:
If the Landlord proposes to lease any space in the Building to any third
party upon terms and conditions specified in writing, and secures from a third
party a written expression of interest to lease space in the Building, the
Landlord, prior to proceeding with further negotiations with that third party,
shall give to the Tenant notice (the "Landlord's Offer Notice") offering to
lease the same space in the Building to the Tenant on the financial terms and
conditions at least as favorable as those given to that third party. If the
Tenant does not accept, in writing, the Landlord's offer to lease such space
within ten (10) business days of the giving of the Landlord's Offer Notice, the
Tenant's rights under this Section 3.2 shall terminate, and the Landlord shall
have the absolute right to lease such space to the third party who had expressed
interest in leasing such space at any time thereafter during the next nine (9)
months of the Lease Term. If the Landlord has not entered into a lease of such
space with that third party during such nine (9) month period, the Landlord
shall not thereafter offer to lease such space to any other parties, unless the
Landlord shall have again complied with the provisions of this Section 3.2.
If the Tenant accepts the Landlord's offer in accordance with the terms of
this Section 3.2, the Tenant agrees to enter into an Amendment to this Lease,
within thirty (30) days of receipt of Landlord's Offer Notice, including such
space within the Premises, adjusting the Rent, Rentable Area, Security Deposit,
Tenant's Proportionate Share and Tenant's Parking Spaces, and other pertinent
Lease provisions to reflect the inclusion of such space within the Premises, but
which is otherwise upon the terms and conditions of this Lease.
3.3 EARLY TERMINATION
The Tenant shall have the right to terminate this Lease effective as of any
day designated by the Tenant during the eighth Year of the Term, provided that
the Tenant shall have given the Landlord at least twelve (12) months' prior
notice (the "Termination Notice") of the Tenant's election to terminate this
Lease (i.e., the Termination Notice must be given prior to the end of the
seventh Year of the Term). The Termination Notice shall specify the exact date
during the eighth Year of the Term on which the termination of this Lease shall
take effect. Any purported election to terminate this Lease pursuant to the
provisions of this Section 3.3 not complying strictly with the foregoing, shall
be void and of no effect. If a complying Termination Notice is given, the date
specified therein as the effective date of the termination shall be the last day
of the Lease Term.
3.4 LIMITATION OF RIGHTS
The rights granted to the Tenant in Sections 3.2 and 3.3, may be exercised
only if the Tenant is not in default beyond any applicable cure period hereunder
at the time of exercise of the rights granted in each of Sections 3.2 and 3.3,
`and in the case of the right of first refusal, at all times thereafter until
the date of execution and delivery by the Tenant of an amendment to the
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Lease effecting the expansion. Time shall be of the essence with respect to
compliance by the Tenant with each of the time requirements under Sections 3.2
and 3.3. The Landlord, however, reserves the right, by notice to the Tenant, to
waive the condition that the Tenant not be in default beyond any applicable cure
period at any or all of the foregoing times and the condition that time is of
the essence.
3.5 DELIVERY OF PREMISES
The Landlord, promptly following the execution and delivery of this Lease,
shall at the Landlord's cost, use diligent efforts to perform such demolition
work and removal of debris (the "Landlord's Demolition Work") as is necessary to
return the Premises on the third floor of the Building to "shell" condition (in
substantially the same condition as the second floor of the Building and in
compliance with the requirements concerning demolition work set forth on Page 2
of Exhibit 1), and to complete Landlord's Demolition Work within thirty (30)
days of the date of this Lease, subject to Landlord's obligation to salvage
certain items for the Tenant's use as described in Section 3.7. Upon completion
of the Landlord's Demolition Work, the Landlord shall give notice (the "Delivery
Notice") to the Tenant of completion of the Landlord's Work, and upon receipt of
the Delivery Notice, the Tenant shall accept (i) the Premises on the first floor
of the Building in generally the same condition as the Premises on the first
floor of the Building are in on the date of this Lease, except that the Landlord
shall construct a demising wall separating the Premises from the remaining space
on the first floor of the Building; and (ii) the Premises on the third floor of
the Building in its shell condition. The Tenant's acceptance of the Premises
pursuant to this Section 3.5 is independent of, and shall have no bearing upon,
the Tenant's obligations to pay Rent or additional rent under this Lease. The
Tenant's obligations to pay Rent and additional rent shall accrue from and after
the Commencement Date as is provided in this Lease.
3.6 TENANT'S WORK
Tenant shall construct its leasehold improvements in the Premises in
accordance with the list of plans and specifications identified on Exhibit D.
The plans and specifications so identified have been initialed by the Landlord
and the Tenant and are hereby deemed to be incorporated by reference and made a
part of this Lease. All work to be performed by Tenant under this Lease shall be
defined by the plans and specifications and is referred to herein as "Tenant's
Work".
The Tenant shall obtain all necessary local and other governmental permits
and approvals to perform Tenant's Work in accordance with the approved plans and
specifications. The Landlord agrees to cooperate with, and assist, the Tenant to
the extent necessary to allow the Tenant to obtain all necessary local and other
governmental approvals that may be required to perform Tenant's Work. The
Tenant's Work shall be performed by a general contractor acceptable to the
Landlord under a written construction contract, providing for payment,
performance and xxxx xxxxx in the full amount of the contract sum. All heating,
ventilating and air conditioning work to be performed as part of the Tenant's
Work shall be performed by a trade contractor approved in writing by the
Landlord. The approval by Landlord of the general contractor and the heating,
ventilating and air conditioning trade contractor shall not impose
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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 or such trade contractor.
All of the Tenant's Work shall be done in strict compliance with, and
subject to, all of the provisions of Section 7.1 below and all changes and
additions shall be part of the Building, except such items as the parties agree
in writing shall be removed by the Tenant on termination of this Lease, or the
Landlord agrees that the Tenant may then elect to remove or leave.
Upon substantial completion of Tenant's Work (i.e., that all of Tenant's
Work shall have been completed except for such minor work, touchups and
adjustments as do not interfere with the Tenant's use and occupancy of the
Premises for the conduct of its business operations) and upon obtaining all
necessary permits and approvals to permit the lawful occupancy of the Premises,
including a certificate of occupancy ("Substantial Completion of Tenant's Work),
the Tenant shall deliver to the Landlord an architect's or engineer's
certificate of such completion and an original certificate of occupancy, and
only thereafter may the Tenant commence beneficial use and occupancy of the
Premises. Within thirty (30) days of Substantial Completion of Tenant's Work,
the Tenant shall furnish the Landlord with "as-built" drawings showing how and
where the Tenant's Work was actually installed and constructed.
3.7 COSTS OF TENANT'S WORK
All fees and costs of preparation of plans and specifications for the
Tenant's Work and other fees and costs of the Tenant's architect or engineer,
and all costs of permits, approvals, and insurance with respect to the Tenant's
Work, and all costs to furnish, install and construct the Tenant's Work and all
other associated costs incurred by the Tenant with respect to Tenant's Work
including costs of acquisition of fixtures and equipment, and moving expenses
shall be the sole responsibility of the Tenant, except to the extent otherwise
provided in Section 3.8 and except that following completion of the Landlord's
Demolition Work, the Landlord will make available (at no cost to the Tenant) all
"Xxxx" walls and doors, "Xxxxxxx" units and other items currently in the third
floor Premises which are identified by the parties and set forth on a mutually
acceptable list delivered to the Landlord prior to performance of Landlord's
Demolition Work, salvaged by the Landlord during the demolition of the second
and third floors of the Building, for use by the Tenant in completion of the
Tenant's Work.
3.8 TENANT'S ALLOWANCE
The Landlord hereby grants amount of $8,910 (the "Tenant's Allowance") for
use by the Tenant in performing the work identified on Exhibit J in the restroom
facilities in the Premises (the "Restroom Work") during the construction and
installation of the Tenant's Work. Upon completion of the Tenant's Work and
submission by the Tenant to the Landlord for approval of a request for
reimbursement for amounts incurred by the Tenant in performing the Restroom
Work, together with evidence satisfactory to the Landlord that such amounts have
been paid by the Tenant, the Landlord shall, provided the Tenant is not in
default hereunder, pay to the Tenant an amount equal to the approved
reimbursement amount or the Tenant's Allowance, whichever is less. If the full
amount of the Tenant's Allowance is not used in the construction and
installation
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of the Restroom Work, the Tenant shall have no further right to use or apply the
Tenant's Allowance or any remaining portion of the Tenant's Allowance for any
purpose.
3.9 COMMON AREA CONSTRUCTION
The Landlord, at its sole expense, agrees to perform the following work in
the Building incidental to the leasing of the Premises by the Tenant:
(a) The Landlord shall use diligent efforts to paint, recarpet and
refurbish the lobby area of the Building, and to refurbish the common
restrooms and elevators in the Building and to perform such other
refurbishing work on items (i) which are Common Elements of the Property,
and (ii) which are identified in the letter attached as Exhibit I. The
Landlord will use diligent efforts to complete such work not later than the
date of Substantial Completion of Tenant's Work.
(b) Following the execution of this Lease, the Landlord will begin
design work for a food service facility for the Building in a location to
be determined by the Landlord. The Landlord will consult with the Tenant in
the process of developing plans and specifications for the food service
facility, but reserves the exclusive right to approve the final plans and
specifications for the food service facility. The Landlord shall use
diligent efforts to complete all construction work to have the food service
facility available for use by tenants in the Building within six (6) months
of the date of this Lease.
Article IV
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RENT
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4.1 RENT
The Rent (specified in Section 1.1 hereof) and any additional rent or other
charges payable pursuant to this Lease shall be payable by the Tenant to the
Landlord at the Landlord's mailing address or such other place as the Landlord
may from time to time designate by notice to the Tenant without prior demand
therefor and without any offset or deduction whatsoever except as otherwise
specifically provided for in this Lease.
(a) The Rent shall be payable in advance on the first day of each and
every calendar month during the Lease Term, except as otherwise provided in
Subsection b) of this Section 4.1.
(b) The Rent for the first calendar month of the Lease Term is due
and payable at the time of execution and delivery of the Lease. If the
Commencement Date occurs on a day other than the first day of a calendar
month, the Tenant shall pay to the Landlord on the first day of the
succeeding calendar month a pro rata payment of Rent for the partial month
from the Commencement Date to the first day of the succeeding calendar
month. Such payment, together with the payment made by the Tenant upon
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execution and delivery of the Lease, shall constitute payment for the first
full calendar month of the Lease Term plus the partial month, if any,
immediately following the Commencement Date.
(c) Rent for any partial month shall be paid by the Tenant to the
Landlord at such rate on a pro rata basis. Other charges payable by the
Tenant on a monthly basis, as hereinafter provided, shall likewise be
prorated.
(d) Rent, additional rent and any other sums due hereunder not paid
within fifteen (15) days of the date due shall bear interest at the rate of
one percent (1%) per month or fraction thereof (or at any lesser maximum
legally permissible rate) from the due date until paid.
Other charges payable by the Tenant on a monthly basis, as hereinafter provided,
shall likewise be prorated, and the first payment on account thereof shall be
determined in similar fashion.
Article V
---------
USE OF PREMISES
---------------
5.1 PERMITTED USE
The Tenant agrees that the Premises shall be used and occupied by the
Tenant only for the purposes specified as the Permitted Use thereof in Section
1.2 of this Lease, and for no other purpose or purposes.
The Tenant further agrees to conform to the following provisions during the
entire Lease Term:
(a) The Tenant shall cause all freight to be delivered to or removed
from the Building and the Premises in accordance with the Rules and
Regulations established by the Landlord therefor;
(b) The Tenant will not place on the exterior of exterior walls
(including both interior and exterior surfaces of windows and doors) or on
any part of the Building outside the Premises, any signs, symbols,
advertisement or the like visible to public view outside of the Premises
without the prior consent of the Landlord, except for signs or lettering on
the entry doors to the Premises of the type commonly and customarily found
in first-class office buildings for the purpose of identifying and locating
the Premises. The Tenant agrees to submit for the Landlord's prior
approval, such approval not unreasonably to be withheld, a plan or sketch
of the sign to be placed on such entry doors. Without limitation, lettering
on windows is expressly prohibited. The Landlord agrees, however, to
maintain a tenant directory in the lobby of the Building in which will be
placed the Tenant's name and the location of the Premises in the Building.
The Landlord has established standards for exterior signs at the Building,
attached as Exhibit E, and if
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any exterior signs are to be approved by the Landlord, the Tenant
understands that the exterior signs must conform to those standards;
(c) The Tenant, at its expense, shall comply with all rules, orders,
regulations and requirements of any Board of Fire Underwriters, or any
other body hereafter constituted exercising similar functions and governing
insurance rating bureaus; and shall not do or permit anything to be done in
or upon the Premises, or bring or keep anything therein, except as now or
hereafter permitted by any governmental authority, Board of Fire
Underwriters or any other similar body having jurisdiction, or insurance
rating bureau; and shall keep the Premises equipped with all safety
appliances or equipment required by any governmental authority, Board of
Fire Underwriters or other similar body or governing insurance rating
bureau by reason of the Tenant's particular use of the Premises or the
location of partitions, trade fixtures or other contents of the Premises;
and shall procure all licenses, permits or other approvals required because
of such use, it being understood that the foregoing provisions shall not be
construed to broaden in any way the Permitted Use of the Premises;
(d) The Tenant, at its expense, shall comply with all laws, rules,
orders, ordinances, bylaws, permit conditions and regulations of
governmental authorities now or hereafter in force and with any lawful
direction of any public official ("Legal Requirements"), in each case to
the extent the same are applicable to the Premises or the use and
maintenance thereof. If the Tenant receives notice of any violation of any
Legal Requirements applicable to the Premises or the use and maintenance
thereof, it shall give prompt notice thereof to the Landlord;
(e) The Landlord shall, at its expense, comply with all Legal
Requirements, in each case, to the extent the same are applicable to the
Common Elements of the Property to the end that the Common Elements of the
Property are not in violation of applicable Legal Requirements.
(f) The Tenant shall not place a load upon any floor of the Premises
exceeding the load which such floor was designed to carry or that which is
allowed by law, whichever is less. The Landlord reserves the right to limit
the weight of safes and other heavy objects and to designate their
position. The Tenant shall not move any safes or heavy objects in or out of
the Building without the Landlord's prior consent,
(g) The Tenant shall not commit or suffer to be committed any waste
upon the Premises or any public or private nuisance, or other act or thing
which may disturb the quiet enjoyment of any other tenant or occupant in
the Building, nor, without limiting the generality of the foregoing, shall
the Tenant make any unusual noises in the Building, cause or permit any
offensive odors (whether or not customary to the use of the Premises
permitted hereby, and the determination of the Landlord as to the offensive
character of odors shall be final) to be produced upon the Premises, or use
any apparatus, machinery or device in or about the Premises which shall
cause any damage to the Building or the Premises or any vibration outside
of the Premises;
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(h) The electricity furnished to the Premises (other than electricity
used in heating, ventilating and air-conditioning the Premises) shall be
separately metered. The Tenant shall pay directly to the supplier of
electricity, within thirty (30) days of invoice therefor, the entire cost
of such electricity consumed in the Premises, including that provided in
connection with the cleaning of the Premises. The Tenant shall not, except
for electrical connections contemplated as part of the approved plans and
specifications for the Tenant's Work identified on Exhibit D and except for
other instances in which the written consent of the Landlord shall have
been obtained, connect to the electrical distribution system any fixtures,
appliances or equipment which operate on a voltage in excess of 120, or
make any alteration or addition to the electrical system of the Premises;
(i) The Tenant shall continuously occupy the Premises during the
Lease Term, subject to temporary interruptions for causes beyond the
Tenant's reasonable control. If during the Lease Term, the Tenant desires
to vacate the Premises, the Tenant shall not be in default of its
obligation to "continuously occupy" the Premises if the Tenant (i) gives
the Building Manager prior notice of its intention to vacate the Premises,
(ii) keeps lights on in the Premises during normal business hours, and
(iii) make arrangements, satisfactory to the Building Manager, to provide
for periodic security inspections of the Premises. The Tenant shall comply
and shall cause its employees, agents and invitees to comply with the Rules
and Regulations of the Building set forth in Exhibit C and such changes
therein and other reasonable rules and regulations as the Landlord shall
from time to time establish for the proper regulation of the Building and
the Lot, provided that such additional rules and regulations shall be of
general application to all the tenants in the Building; and
(j) The Tenant shall not cause or permit any Hazardous Material to be
brought upon, kept, used or disposed of in or about the Premises without
the prior written consent of the Landlord, and shall furnish to the
Landlord, on or before May 1 of each year during the Lease Term, a list of
all items of Hazardous Material then being used by the Tenant in the
Premises. From and after the date when the Tenant first enters the Premises
for any reason, throughout the Lease Term and thereafter so long as the
Tenant is in occupancy of any part of the Premises, the Tenant shall cause
its operations at the Premises to comply with all Environmental Laws. If
the presence of Hazardous Material in, on or about the Premises caused or
permitted by the Tenant or its agents, employees, contractors, invitees or
licensees results in contamination of the Premises, the Building, or the
Lot, or if any violation of Environmental Laws occurs arising out of, or
resulting from, the Tenant's operations at the Premises, then the Tenant
shall indemnify, and hold harmless the Landlord, the directors, officers,
agents and employees of the Landlord and those in privity of estate with
the Landlord, from and against any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses of any nature which arise
from and after the date when the Tenant first enters the Premises, but
solely to the extent that any loss or damage caused by such contamination
of the Premises, the Building or the Lot or such violation of Environmental
Laws is caused or permitted by the Tenant or its agents, employees,
contractors, invitees of licensees. This indemnification of the Landlord by
the Tenant includes, without limitation, legal and other professional fees
and
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all costs incurred in connection with any investigation of site conditions
and any cleanup, remediation, removal, treatment, detoxification or
restoration work required by any federal, state or local governmental
agency, official or authority because of the presence of Hazardous Material
in the Building, the soil or ground water under the Building or on or under
or about the Lot to the extent caused or permitted by the Tenant or its
agents, employees, contractors, invitees or licensees. If the presence of
any Hazardous Material in, on, under or about the Premises, the Building,
or the Lot caused or permitted by the Tenant or its agents, employees,
contractors, invitees or licensees results in any contamination, the Tenant
shall promptly inform the Landlord and take all actions at the Tenant's
sole expense, as are necessary to return the same to the condition existing
prior to the introduction of any such Hazardous Material, provided that
Landlord's written approval of such actions shall first be obtained.
In deciding whether to consent to any proposed assignment or sublease
pursuant to this Lease, the Landlord may consider among other factors the
following matters: (i) whether the proposed assignee's or subtenant's
anticipated use of the Premises involves the generation, storage, use, treatment
or disposal of Hazardous Material to a degree greater in quantity or extent or
more harmful or dangerous in nature than is permitted under the provisions of
this Section 5.10); (ii) whether the proposed assignee or subtenant has been
required by any prior landlord, lender or governmental authority to take
remedial action in connection with Hazardous Material contaminating a property
if the contamination resulted from the proposed assignee's or subtenant's
actions or use of the property in question and if so, the circumstances of the
same; and (iii) whether the proposed assignee or subtenant is subject to an
enforcement order issued by any governmental authority in connection with the
use, disposal or storage of a Hazardous Material and if so, the circumstances of
the same.
For purposes of this Section 5.10) and Article XI, the Premises shall also
be deemed to include all areas as to which the Tenant is granted appurtenant
rights hereunder.
5.2 ALTERATIONS
The Tenant's right to redecorate or make alterations, additions or
improvements to the Premises shall be as follows:
(a) The Tenant may redecorate the Premises (without any limitation on
the costs of redecoration), or make minor alterations, additions or
improvements upon or in the Premises (if the cost thereof is less than
$25,000 on any single occasion) without the Landlord's systems (e.g.,
Landlord's consent, provided (i) the work does not affect the Building's
system (e.g., electrical, HVAC, sprinkler, fire safety, plumbing, etc.) or
the exterior of the Building, (ii) the work does not in any way affect
structural elements of the Building or the structural integrity of the
Building, (iii) the Tenant shall give the Landlord at least ten (10) days'
prior notice of its intention to do such work and shall promptly respond to
Landlord's inquiries with respect to the work and (iv) the work shall be
performed in accordance with all other applicable provisions of the Lease.
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(b) The Tenant may make alterations, additions or improvements upon
or in the Premises if the cost thereof is $25,000 or greater, provided (i)
the work does not affect the Building's systems, other than the secondary
branches thereof located within the Premises, or affect the exterior of the
Building, or in any way affect the structural elements of the Building, or
in any way affect the structural integrity of the Building, (ii) the
Landlord shall have given its prior written consent to the performance of
such work, which consent shall not be unreasonably withheld or delayed, and
(iii) the work shall be performed in accordance with all other applicable
provisions of the Lease.
(c) The Tenant shall have no right to make any other alterations,
additions or improvements upon or to the Premises, except as provided in
Subsections (a) and (b), above. The Landlord may withhold its consent to
any request by the Tenant to make any other alterations, additions or
improvements in its sole and absolute discretion.
All alterations, additions and improvements made by the Tenant to the
Premises shall remain therein and, at the termination of the Lease, shall be
surrendered as a part thereof, except for trade fixtures and equipment (as
distinguished from leasehold improvements) installed during the Term of this
Lease at the Tenant's sole cost. Such trade fixtures and equipment may be
removed by the Tenant if the Tenant is not then in default hereunder and if such
removal shall not result in permanent damage to the Premises or the Building.
The Tenant shall remove such trade fixtures and equipment at the termination of
the Lease if requested to do so by the Landlord. The Tenant shall at its expense
promptly repair any and all damage to the Premises or the Building resulting
from any removal of such fixtures and equipment.
Any personal property which shall remain in the Building or on the Premises
after the expiration or earlier termination of the Lease shall conclusively be
deemed to have been abandoned by the Tenant, and either may be retained by the
Landlord as its own property or may be disposed of by sale, storage or otherwise
as the Landlord shall see fit, all at the Tenant's expense. Notwithstanding the
foregoing, the Tenant will, upon request of the Landlord after the expiration or
termination of the Term hereof, promptly remove from the Building any such
personal property, or if any part of such personal property shall be sold, the
Landlord may receive and retain the proceeds of such sale and apply the same, at
its option, against the expenses of sale, the costs of moving and storage, any
arrears of Rent, additional rent or other charges payable hereunder or any
damages to which the Landlord may be entitled.
Article VI
----------
ASSIGNMENT AND SUBLETTING
-------------------------
6.1 PROHIBITION
Notwithstanding, any other provisions of this Lease, the Tenant shall not
assign or otherwise transfer, voluntarily or involuntarily, this Lease or any
interest herein or sublet (which term, without limitation, shall include
granting of concessions, licenses and the like) or allow any other person to
occupy the whole or any part of the Premises, without, in each instance, the
prior written consent of the Landlord. Notwithstanding the foregoing, provided
the Tenant is not in
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default hereunder beyond applicable grace periods, no prior approval of the
Landlord shall be required for the subletting or assignment of all or a portion
of the Premises to any corporation or other entity which is a parent, affiliate
(including any entity into which the Tenant may be merged) or wholly-owned
subsidiary of the Tenant or the acquirer of more than 50% of the capital stock
of the Tenant or 50 % of the value of the assets of the Tenant (a "Related
Party"), except that no subletting or assignment to a Related Party shall be
made unless the Tenant shall have provided to the Landlord such information as
the Landlord shall reasonably require such as, but not limited to, satisfactory
evidence as to the relationship, as parent, affiliate or subsidiary of the
proposed subtenant or assignee, and evidence as to its legal existence and
corporate (or other) authority to enter into the sublease or assignment.
Should the Tenant propose to sublet the Premises or any portion thereof to
a non-Related Party, the Tenant shall give the Landlord notice of its intention
to sublet at least sixty (60) days prior to the proposed commencement date of
the sublease term, to which notice is attached a copy of the proposed sublease
and all agreements collateral thereto, and upon such notification, the parties
shall have the following rights.
(a) In the event the Landlord receives notice of Tenant's intention
to sublet, the Landlord shall have the right to recapture the space
included in the proposed sublease upon notice thereof to the Tenant given
within thirty (30) days of the Landlord's receipt of the Tenant's notice of
intention to sublet. If such recapture notice is given, it shall serve to
terminate this Lease with respect to that portion of the Premises included
in the proposed sublease as of the commencement date of the proposed
sublease or if the proposed sublease includes all of the Premises it shall
serve to terminate this Lease as of such date. If this Lease is terminated
with respect to a part of the Premises as provided in this Section 6.1(a),
the provisions in this Lease relating to Rent, Rentable Area, Tenant's
Parking Spaces and the Tenant's Proportionate Share shall be adjusted on
the basis of the proportion of Rentable Area retained by the Tenant to the
Rentable Area leased to the Tenant immediately preceding the termination
and Exhibits A and A-1 shall be appropriately modified, and this Lease as
so amended shall continue thereafter in full force.
(b) If the Landlord has not elected to recapture, as provided above,
and the Tenant is not then in default under this Lease beyond applicable
grace periods, the Landlord shall not unreasonably withhold or delay its
consent to allow the Tenant to sublet the Premises or any portion thereof
provided (i) the proposed subtenant is a reputable party of reasonable
financial worth considering the responsibilities involved and the Tenant
shall have provided the Landlord with reasonable proof thereof and the
nature, character and quality of the proposed subtenant's business
operations is suitable to the Landlord and not inconsistent with covenants
contained in other leases in the Building; (ii) the Premises will be used,
under the proposed sublease, in a manner consistent with the use of the
Premises under this Lease; and (iii) the Tenant endeavors in good faith to
market the Premises available for subleasing for a reasonable period of
time, at a rental rate not less than the then prevailing fair market rent
for comparable space as reasonably determined by the Landlord; however, if
the Tenant is unable to sublet the
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Premises available for subleasing at the fair market rate, the Tenant shall
thereafter be free to market such space at less than fair market rates.
(c) Any advertising or news releases relating to a proposed
subletting shall require Landlord's prior approval, which shall not
unreasonably be withheld.
In the event of any subletting, assignment or other transfer of the whole or any
part of the Premises where the rent reserved (`Sublease Rent") and other
payments provided for in the sublease or assignment exceed the rent reserved and
other payments provided hereunder or pro rata portion of such rent and other
payments, as the case may be, the Tenant shall pay to the Landlord on each Rent
payment date, as additional rent, the excess of (a) the monthly installment of
Sublease Rent and other payments provided for in the sublease or assignment over
(b) that reserved in this Lease for the applicable space, less (c) so much of
the Tenant's reasonable costs for brokerage commissions, legal fees, tenant
improvements, and any other direct costs incurred by the Tenant due and payable
in connection with the subletting, assignment or other transfer of the whole or
any part of the Premises as would be amortized each month over the term of such
subletting, assignment or other transfer. The term Sublease Rent as used in the
preceding sentence shall mean the total rent reserved under such sublease or
assignment.
In any case, assignment, other transfer or subletting, whether or not the
consent of the Landlord is required, the Tenant originally named herein shall
remain fully liable for Tenant obligations hereunder, including, without
limitation, the obligation to pay the rent and other amounts provided under this
Lease, and the Tenant also hereby agrees to pay as additional rent to the
Landlord, within fifteen (15) days of billing therefor, all legal and other fees
incurred by the Landlord in connection with reviewing and approving any such
assignment, other transfer or subletting. It shall be a condition of the
validity of any permitted assignment or other transfer or subletting hereunder
that the assignee or transferee or subtenant agree directly with the Landlord,
in form satisfactory to the Landlord, to be bound by all Tenant obligations
hereunder, including, without limitation, the obligation to pay rent and other
amounts provided for under this Lease and the covenant against further
assignment or other transfer or subletting.
6.2 ACCEPTANCE OF RENT FROM TRANSFEREE
The acceptance by the Landlord of the payment of Rent, additional rent or
other charges following an assignment, subletting or other transfer prohibited
by this Article VI shall not be deemed to be a consent by the Landlord to any
such assignment, subletting or other transfer, nor shall the same constitute a
waiver of any right or remedy of the Landlord.
Article VII
-----------
RESPONSIBILITY FOR REPAIRS
--------------------------
7.1 REPAIRS
From and after the date that possession of the Premises is delivered to the
Tenant and until the end of the Lease Term, the Tenant shall keep the Premises
and every part thereof in
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good order, condition and repair, reasonable wear and tear and damage by
unavoidable casualty only excepted; and the Tenant shall surrender the Premises
at the end of the Lease Term in such condition. Except as may be provided in
Articles XIII and XIV, the Landlord agrees to keep in good order, condition and
repair the Common Elements of the Property, except any condition caused by any
act, omission or neglect of the Tenant or any contractor of the Tenant or any
party for whose conduct the Tenant is responsible. Without limitation, the
Landlord shall not be responsible to make any improvements or repairs other than
as expressly provided in this Section, and the Landlord shall not be liable for
any failure to make such repairs unless the Tenant has given notice to the
Landlord of the need to make such repairs and the Landlord has failed to
commence to make such repairs within a reasonable time thereafter.
Whenever the Tenant shall make repairs, alterations, decorations,
additions, removals, or improvements (including the installation of any
equipment other than normal light business office equipment) in or to the
Premises:
(a) No material or equipment shall be incorporated in or added to the
Premises in connection with any such repair, alteration, decoration,
addition, removal or improvement which is subject to or claimed to be
subject to any lien, charge, mortgage, or other encumbrance of any kind
whatsoever or is subject to any security interest or any form of title
retention agreement without the prior written approval of the Landlord. The
Landlord's approval may be conditioned upon the Tenant providing the
Landlord with satisfactory assurances (which may include requiring an
agreement by the equipment lessor or other lien or title holder directly
with the Landlord) as to the removal of the material or equipment, and
repair or restoration of the Building at no cost to the Landlord. Any
mechanic's or materialmen's lien filed against the Premises or the Building
for work claimed to have been done for, or materials claimed to have been
furnished to the Tenant, shall be immediately discharged by the Tenant, at
the Tenant's expense, by filing the bond required by law or otherwise. If
the Tenant fails so to discharge any lien, the Landlord may do so at the
Tenant's expense and the Tenant shall reimburse the Landlord for all
expenses and costs incurred by the Landlord in so doing immediately after
rendition of a xxxx therefor by the Landlord to the Tenant.
(b) All installations or work done by or for the Tenant shall be at
its own expense and shall at all times comply with (i) laws, rules, orders
and regulations of governmental authorities having jurisdiction thereof;
(ii) orders, rules and regulations of any Board of Fire Underwriters, or
any other body hereafter constituted exercising similar functions, and
governing insurance rating bureaus; (iii) plans and specifications (which
shall be prepared by and at the expense of the Tenant) previously submitted
to and approved in writing by the Landlord. Whenever the Tenant shall
request approval by the Landlord or the Landlord's architect of plans,
drawings, specifications or otherwise with respect to alteration of the
Premises, subsequent remodeling thereof, installation of signs including
subsequent changes thereof, or the like, the Tenant specifically agrees
promptly to pay to the Landlord's architect (or reimburse the Landlord for
the payment the Landlord makes to the architect) for all charges involved
in the review (and rereview, if necessary) and approval or disapproval
thereof whether or not approval shall ultimately
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be given, except that, with respect to the Tenant's Work, the Tenant shall
only be obligated to pay an amount not to exceed $1,500 for the Landlord's
costs of review of the plans and specifications as they relate to
mechanical systems, if necessary, by a third-party engineer.
(c) The Tenant shall procure all necessary permits before undertaking
any work in the Premises and shall do all such work in a good and
workmanlike manner, employing materials of quality comparable to materials
used for Tenant's Work and shall defend, save harmless, exonerate and
indemnify the Landlord from all injury, loss or damage to any person or
property occasioned by such work. The Tenant shall cause contractors
employed by the Tenant to carry and maintain in force during the
continuance of any work being performed for the Tenant Worker's
Compensation Insurance in accordance with statutory requirements and
Commercial General Liability Insurance and Automobile Liability Insurance
covering such contractors on or about the Premises in amounts reasonably
acceptable to the Landlord and to submit certificates evidencing such
coverage to the Landlord prior to the commencement of such work.
(d) The Tenant shall not, at any time prior to or during the Lease
Term, directly or indirectly employ, or permit the employment of, any
contractor, mechanic or laborer in the Premises, whether in connection with
any repair work or the making of any alteration, improvements or additions
or otherwise, if the Landlord shall have first given notice (the "Conflict
Notice") to the Tenant prior to the time of the employment of any such
contractor, mechanic or laborer of the existence of a potential labor
conflict, and if such employment will interfere or cause any conflict with
other contractors, mechanics, or laborers engaged in the construction,
maintenance or operation of the Building by the Landlord, or others. In the
event of any such interference or conflict, provided the Landlord shall
have given the prior Conflict Notice, the Tenant, upon demand of the
Landlord, shall cause all contractors, mechanics or laborers causing such
interference or conflict to leave the Building immediately.
Article VIII
------------
SERVICES TO BE FURNISHED BY LANDLORD
------------------------------------
8.1 CLEANING SERVICES
The Landlord shall cause cleaning services to be provided to the Premises
as described in Exhibit F.
8.2 OTHER SERVICES
The Landlord shall cause other services to be furnished to the Tenant as
set forth in Exhibit G.
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8.3 ADDITIONAL SERVICES
Upon reasonable advance notice from the Tenant, the Landlord will endeavor
to furnish additional heat, air-conditioning or other services to the Premises
on days and at times other than as provided in Exhibits F and G, and the Tenant
shall on demand and as additional rent pay to the Landlord, on account thereof,
a reasonable charge for such additional services equal to the Landlord's good
faith estimate of the additional costs incurred by the Landlord on account
thereof.
8.4 CAUSES BEYOND CONTROL OF THE LANDLORD
The Landlord shall in no event be liable for failure to perform any of its
obligations under this Lease when prevented from doing so by causes beyond its
reasonable control, including, without limitation, labor dispute, casualty,
accident, order or regulation of or by any governmental authority, or failure of
supply, or inability by the exercise of reasonable diligence to obtain supplies,
parts or employees necessary to furnish services required under this Lease, or
because of war or other emergency, or for any cause due to any act, neglect or
default of the Tenant or the Tenant's servants, contractors, agents, employees,
licensees or any person claiming by, through or under the Tenant, but not
including the negligent acts or omissions of the Landlord, and the period of any
delay resulting therefrom shall not be counted in determining the time during
which action to be taken by the Landlord hereunder shall be completed, and such
time shall be extended by the period of such delay. In no event shall the
Landlord ever be liable to the Tenant for any indirect or consequential damages
under the provisions of this Section 8.4 or any other provision of this Lease.
Article IX
----------
REAL ESTATE AND OTHER TAXES; OTHER EXPENSES
-------------------------------------------
9.1 LANDLORD TO PAY REAL ESTATE TAXES
The Landlord shall be responsible for the payment, before the same becomes
delinquent, of all general and special taxes, including assessments for local
improvements, and other governmental charges which may be lawfully charged,
assessed or imposed (herein collectively called the "Taxes") upon the Building
and the Lot. However, if authorities having jurisdiction assess real estate
taxes, assessments or other chares which the Landlord considers excessive, the
Landlord may defer compliance therewith to the same extent permitted by the laws
of the jurisdiction in which the same are located, so long as the validity or
amount thereof is contested by the Landlord in good faith, and so long as the
Tenant's occupancy of the Premises is not disturbed.
9.2 TENANT'S SHARE OF REAL ESTATE TAXES
With reference to the Taxes described in Section 9.1, it is agreed as
follows:
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(a) If the Taxes assessed against the Building and Lot during any tax
year after the fiscal 1994 tax year during the Lease Term shall be greater
than the Escalation Basis for Taxes (as defined in Section 1. 1), then, for
each such year during the term hereof, the Tenant shall pay to the
Landlord, the Tenant's Proportionate Share of such excess. Such payment
shall be due and payable within thirty (30) days after the presentation by
the Landlord of a copy of the xxxx rendered to the Landlord with respect to
such Taxes, except that, if any mortgagee holding a mortgage on the
Building so requests, such excess shall be paid on a monthly basis in
advance, such payments to be based on the amounts that the mortgagee
requires the Landlord to pay. For the recovery of such amounts, the
Landlord shall have the remedies provided hereunder for nonpayment of Rent.
(b) An equitable adjustment shall be made in such figures with respect
to the first and last years of the term hereof in the event that they shall
not coincide with the tax year; and an equitable adjustment shall be made
in the event of any change in the method or system of taxation from that
which is now applicable, including the dates and period for which such
taxes are levied, or otherwise. Where the applicable tax xxxx is not
available prior to the end of the term hereof, then the aforesaid
adjustment shall be made, tentatively, on the basis of the last year's
taxes, and the amount due shall be treated as an addition to the rent for
the last month of the Lease Term; and final adjustment shall be made
between the Landlord and the Tenant promptly after the Landlord shall have
received the tax xxxx for such period.
If any Taxes, with respect to which the Tenant shall have paid the
Tenant's Proportionate Share, shall be adjusted to take into account any
abatement or refund, the Tenant shall been titled to a credit against
rental obligations hereunder, in an amount equal to the difference between
the Tax payment made by the Tenant based upon the originally assessed Taxes
and the Tax payment due from the Tenant based upon the abated Taxes, less
the Tenant's Proportionate Share of any costs or expenses, including
attorney's fees of the Landlord, of securing such abatement or refund.
(c) If some method or type of taxation or assessment shall replace in
whole or in part, the current method of assessment of real estate taxes, or
the type thereof, the Tenant agrees that the Tenant shall pay the Tenant's
equitable share of the same computed in a fashion consistent with the
method of computation herein provided, to the end that the Tenant's cost on
account thereof shall be, to the maximum extent practicable, the same as
the Tenant would bear under the foregoing paragraphs.
(d) If a tax (other than a net income tax) is assessed on account of
the rents or other charges payable by the Tenant to the Landlord under this
Lease, the Tenant agrees to pay the same within ten (10) days after billing
therefor, unless applicable law prohibits the payment of such tax by the
Tenant. The Tenant's obligation to make payment of the same shall be
applicable irrespective of the party to which the tax is assessed.
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Article X
---------
OPERATING COSTS
---------------
10.1 TENANT'S SHARE OF INCREASES IN OPERATING COSTS
(a) The annual rent payable by the Tenant shall be adjusted for
increases or decreases in operating costs, adjusted to reflect full
occupancy for twelve months ("Operating Costs"). The amounts of such
Operating Costs escalation payments shall, except as otherwise provided
below, be determined by:
(i) Comparing the Escalation Basis for Operating Costs with the
Operating Costs of the "Lease Year;"
(ii) Computing the Tenant's share on the basis of the
Tenant's Proportionate Share of the difference.
(b) Operating Costs escalation payments shall be payable by the Tenant
as follows:
(i) No Operating Costs escalation payment shall be due or
payable by the Tenant until January 1, 1996;
(ii) If Operating Costs for calendar year 1995 exceed the
Escalation Basis for Operating Costs, the Tenant shall pay,
as Additional Rent, the Tenant's Proportionate Share of such
excess, commencing on January 1, 1996. During 1996, the
Tenant shall pay to the Landlord pro rata monthly
installments on account of such excess. If the determination
of such excess is not made until after January 1, 1996, upon
notification to the Tenant of the amount of such excess, the
Tenant shall be responsible for making such pro rate monthly
installments retroactively to January 1, 1996; and
(iii) If the Operating Costs for any Lease Year after calendar
year 1995 exceed the Escalation Basis for Operating Costs or
if the Operating Costs for any partial Lease Year exceed the
corresponding fraction of the Escalation Basis for Operating
Costs, the Tenant shall pay, as Additional Rent, the
Tenant's Proportionate Share of such excess (such amount,
together with the corresponding excess amount calculated
under clause (ii), immediately above, being referred to
hereinafter as "Operating Cost Excess").
Within ninety (90) days of the end of 1995 and each Lease Year thereafter,
the Landlord will present to the Tenant a statement by a certified public
accountant summarizing Operating Costs for such year, and, in the case of
the statement presented to the Tenant
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for 1995, the Landlord will also present to the Tenant a statement by a
certified public accountant summarizing the Escalation Basis for Operating
Costs. In Lease Years subsequent to 1995, the Tenant shall pay to the
Landlord pro rata monthly installments on account of projected Operating
Cost Excess for the Lease Year, calculated by the Landlord on the basis of
the most recent Operating Costs data or budget available, with an
adjustment made after the close of the Lease Year to account for actual
Operating Costs for such Lease Year. If the total of such monthly
installments in any Lease Year is greater than the actual Operating Cost
Excess for such Lease Year, the Tenant shall be entitled to a credit
against the Tenant's rental obligations hereunder in the amount of such
difference. If the total of such monthly installments is less than the
actual Operating Cost Excess for such Lease. Year, the Tenant shall pay to
the Landlord the amount of such difference promptly upon billing therefor.
(c) For the purposes of this Article "Escalation Basis for Operating
Costs" shall have the meaning given in Section 1.1; "Lease Year" shall mean
any fiscal year from January 1 to December 3 1, except that the first Lease
Year during the Lease Term shall commence on the Commencement Date and end
on the next following December 31 and the last Lease Year during the Lease
Term shall end on the date this Lease terminates (each of such first and
last Lease Years are referred to in the immediately preceding paragraph b)
as a "Partial Lease Year"); and `Operating Costs" shall include:
(1) All expense. incurred by the Landlord or its agents which
shall be directly related to employment of day and night
supervisors, janitors, handymen, carpenters, engineers,
firemen, mechanics, electricians, plumbers, lobby and
elevator attendants, guards, porters, cleaners,
secretaries and other personnel (including
(5) Insurance premiums for the Property;
(6) Costs for electricity, steam and other utilities
required in the Operation of the Property;
(7) Water and sewer use charges for the Property;
(8) The costs of snowplowing and removal and landscaping
for the Property;
(9) Amounts paid to independent contractors for
services, materials and supplies furnished for the
Operation of the Property;
(10) The amounts paid to subsidize the operation of any
cafeteria or restaurants in the Building up to but
not exceeding $10,000 per year; and
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(11) All other reasonable expenses incurred in connection
with the Operation of the Property.
Operating Costs shall be computed on an accrual basis and shall
be determined in accordance with generally accepted accounting principles
consistently applied. They may be incurred directly or by way of
reimbursement, and shall include taxes applicable thereto. The following
shall be excluded from Operating Costs:
(1) The cost of correcting defects, except that conditions
(not occasioned by construction defects) resulting from
ordinary wear and tear shall not be deemed defects for
this purpose;
(2) Salaries of officers and executives of the Landlord not
connected with the Operation of the Property;
(3) The initial cost of tools and equipment used in the
Operation of the Property;
(4) Depreciation;
(5) Expenses relating to tenants' alterations;
(6) Interest on indebtedness;
(7) Expenses for which the Landlord, by the terms of this Lease
or any other lease, makes a separate charge;
(8) Real estate taxes;
(9) The cost of any electric current furnished to the Building
tenants;
(10) The cost of any services or systems for that portion of the
Building occupied by the Landlord or affiliates of the
Landlord (exclusive of space occupied by the Landlord or
affiliates of the Landlord in connection with the Operation
of the Building) and which are not provided generally to
other tenants in the Building;
(11) Leasing fees or commissions; and
(12) All other items which under generally accepted accounting
principles as consistently applied in the real estate
industry for first-class office buildings are properly
classified as capital expenditures except, as otherwise
provided above and except: (A) if any capital improvement
results in reduced operating costs (e.g., an energy saving
improvement), then with respect to the Lease Year in which
the improvement is made and each subsequent Lease Year, the
amount of such reduction shall be added to
-25-
reasonably estimated Operating Costs for such Lease Year;
and (B) an annual charge-off shall be included in Operating
Costs for expenditures for alterations to the Building or
the Lot required to be made by federal, state or local
laws, regulations, codes or ordinances. Annual charge-off
is defined as and shall be determined by amortizing the
cost of such alterations over the number of years of useful
life of the alterations, together with interest on the
unamortized amount. The useful life shall be determined by
the Landlord's accountants in accordance with generally
accepted accounting principles and practices in effect at
the time of the alteration.
All Operating Costs shall be reduced by the amount (net of
collection costs) of any insurance, reimbursement, discount or
allowance received by the Landlord in connection with such costs.
10.2 REVIEW OF BOOKS AND RECORDS
Upon reasonable prior notice to the Landlord given within six (6)
months of presentation by the Landlord to the Tenant of the certified statement
of Operating Costs for any year, the Tenant shall have the right to review with
the Building Manager at the Building Manager's office during normal business
hours, the records of Operating Costs for such year. The making of such request
and review shall not, however, constitute grounds for any delay by the Tenant in
making its payment of any Operating Costs Excess.
Article XI
----------
INDEMNITY
---------
11.1 TENANT'S INDEMNITY
To the maximum extent permitted by law, the Tenant shall indemnify and
hold harmless the Landlord, the directors, officers, agents and employees of the
Landlord and those in privity of estate with the Landlord, from and against all
claims, expenses or liability of whatever nature (a) arising from any default,
act, omission or negligence of the Tenant, or the Tenant's contractors,
licensees, agents, servants or employees, or the failure of the Tenant or such
persons to comply with any law, rule, order, regulation or lawful direction now
or hereafter in force of any public authority, in each case to the extent the
same are related, directly or indirectly, to the Premises or the Building, or
the Tenant's use thereof; or (b) arising directly or indirectly from any
accident, injury or damage, however caused, to any person or property on or
about the Premises; or (c) arising, directly or indirectly, out of default or
breach by the Tenant under any of the terms, conditions or covenants of this
Lease or in connection with any equipment or installations to be maintained or
repaired by the Tenant; or (d) arising directly or indirectly, from any
accident, injury or damage to any person or property occurring outside the
Premises but within the Building, or on the Lot where such accident, injury or
damage results, ,m is claimed to have resulted from, any act, omission or
negligence on the part of the Tenant, or the Tenant's
-26-
contractors, licensees, agents, servants, employees or customers or anyone
claiming by or through the Tenant; provided, however, that in no event shall the
Tenant be obligated under this Section 11.1 to indemnify the Landlord, the
directors, officers, agents and employees of the Landlord, or those in privity
of estate with the Landlord, to the extent that such claim, expense or liability
results from any omission, fault, negligence or other misconduct of the Landlord
or the officers, agents or employees of the Landlord on or about the Premises or
the Building.
This indemnity and hold harmless agreement and the indemnity set forth in
Section 5.10) shall include indemnity against all expenses and liabilities
incurred in or in connection with any such claim or proceeding brought thereon,
and the defense thereof with counsel acceptable to the Landlord or counsel
selected by an insurance company which has accepted liability for any such
claim. The Landlord's and the Tenant's respective obligations and rights under
this Section 11.1 and the provisions of Section 5.10) shall survive the
expiration or earlier termination of this Lease.
11.2 TENANT'S RISK
The Tenant agrees to use and occupy the Premises and to use such other
portions of the Building and the Lot as the Tenant is herein given the right to
use at the Tenant's sole risk; and to the fullest extent permitted by law the
Landlord shall have no responsibility or liability for any loss of or damage to
furnishings, fixtures, equipment or other personal property of the Tenant, or of
those claiming by, through or under the Tenant, except to the extent caused by
the negligence of the Landlord, its agents, employees or contractors, subject
however to the ,provisions of Section 15.2.
11.3 INJURY CAUSED BY THIRD PARTIES
The Tenant agrees that the Landlord shall not be responsible or liable to
the Tenant, or to those claiming by, through or under the Tenant, for any loss
or damage resulting to the Tenant or those claiming by, through or under the
Tenant, or its or their property, that may be occasioned by or through the acts
or omissions of persons occupying adjoining premises or any part of the premises
adjacent to or connecting with the Premises or in any part of the Building, or
for any loss or damage from the breaking, bursting, crossing, stopping or
leaking of electric cables and wires, and water, gas, sewer or steam pipes or
like matters, except to the extent caused by the negligence of the Landlord, its
agents, employees or contractors, subject however to the provisions of Section
15.2.
Article XII
-----------
THE LANDLORD'S ACCESS TO PREMISES
---------------------------------
12.1 LANDLORD'S RIGHT OF ACCESS
The Landlord shall have the right to enter the Premises at all reasonable
hours and upon reasonable prior notice to the Tenant (except that no notice
shall be required in an emergency) for the purpose of inspecting or of making
repairs, alterations or additions to the Premises or the
-27-
Building and shall have the right, but not the obligation, to inspect the
Premises and the manner of use, storage, treatment, handling and disposal of
Hazardous Material for compliance with the provisions of this Lease and
Environmental Laws, and the Landlord shall also have the right to make access
available at all reasonable hours and upon reasonable prior notice to the
Tenant, to prospective or existing mortgagees or purchasers of any part of the
Building. To assure access by the Landlord to the Premises, the Tenant shall
provide the Landlord with duplicate copies of all keys used by the Tenant in
providing access to the Premises.
For a period commencing twelve (12) months prior to the expiration of the
Lease Term, the Landlord may have reasonable access to the Premises at all
reasonable hours and upon reasonable prior notice to the Tenant for the purpose
of exhibiting the same to prospective tenants.
Article XIII
------------
CASUALTY
--------
13.1 DEFINITION OF "SUBSTANTIAL DAMAGE" AND "PARTIAL DAMAGE"
The term "substantial damage", as used herein, shall refer to damage which
is of such a character that in the Landlord's reasonable opinion the same
cannot, in ordinary course, be expected to be repaired within 120 calendar days
from the time that such repair work would commence. Any damage which is not
"substantial damage" is "partial damage."
13.2 PARTIAL DAMAGE TO THE BUILDING
If during the Lease Term there shall be partial damage to the Building by
fire or other casualty and if such damage shall materially interfere with the
Tenant's use of the Premises as contemplated by this Lease, the Landlord shall
promptly notify the Tenant of the Landlord's reasonable estimate of the period
of time necessary to. repair or restore the Premises (the "Estimated Time to
Repair") and proceed to restore the Building, common areas or facilities to
substantially the condition in which it was immediately prior to the occurrence
of such damage.
13.3 SUBSTANTIAL DAMAGE TO THE BUILDING
If during the Lease Term there shall be substantial damage to the Building
by fire or other casualty and if such damage shall materially interfere with the
Tenant's use of the Premises as contemplated by this Lease, the Landlord shall
promptly restore the Building, to the extent reasonably necessary to enable the
Tenant's use of the Premises, unless the Landlord, within forty-five (45) days
("Landlord's Termination Period") after the occurrence of such damage, shall
give notice to the Tenant of the Landlord's election to terminate this Lease.
The Landlord shall have the right to make such election in the event of
substantial damage to the Building whether or not such damage materially
interferes with the Tenant's use of the Premises.
13.4 RESTORATION
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If the Landlord does not elect to terminate this Lease as provided in
Section 13.3 above, the Landlord shall notify the Tenant thereof promptly
following the Landlord's Termination Period, and include with that notice the
Estimated Time to Repair, as provided above. If the Estimated Time to Repair
the Premises exceeds six (6) months, the Tenant shall have the right to
terminate this Lease during the twenty (20) day period ("Tenant's Termination
Period") immediately following receipt of the Landlord's notice, unless the
Landlord offers to the Tenant to provide within 90 days comparable space in the
Building at the same rent, terms and conditions provided for the balance of the
Term and if the Tenant, in its sole discretion, is satisfied with the comparable
space, and in that event Landlord agrees to reimburse the Tenant for the
Tenant's reasonable actual out-of-pocket expenses incurred by the Tenant to
relocate the Tenant's furniture, fixtures and equipment from the Premises to the
substitute premises. If the Landlord or Tenant shall give such notice of
termination, then this Lease shall terminate as of the date of such notice with
the same force and effect as if such date were the date originally established
as the expiration date hereof. If neither the Landlord nor the Tenant elect to
terminate this Lease within the time periods specified herein,: the Landlord
shall proceed to repair and restore the Premises in accordance with this Article
XIII.
If the Landlord shall have given a Notice of the Estimated Time to Repair
pursuant to this Section 13.2 or Section 13.4, and has not completed repair or
restoration work to an extent reasonably necessary to enable the Tenant to use
the Premises for its business operations by the expiration of a period equal to
125 % of the Estimated Time to Repair (beginning, in the case of repair or
restoration of Partial Damage, on the date that the notice of Estimated Time to
Repair is given, and in the case of Substantial Damage, on the earlier of the
date when restoration or repair is commenced or the date which is the first day
following the expiration of the Landlord's Termination Period and, if
applicable, the Tenant's Termination Period), plus, in either case, any period
of delay in completing the restoration work attributable to causes beyond the
Landlord's control, as set forth in Section 8.4, then, the Tenant may terminate
this Lease by notice to the Landlord, provided such notice is given within
fifteen (15) days of such date, and provided further that substantial completion
of such repair or restoration work has not occurred at the time of giving such
notice. Such termination shall take effect as if such date were the date
originally established as the date of expiration of this Lease.
13.5 ABATEMENT OF RENT
If during the Lease Term the Building shall be damaged by fire or casualty
and if such damage shall materially interfere with the Tenant's use of the
Premises as contemplated by this Lease, a just proportion of the Rent and other
charges payable by the Tenant hereunder shall xxxxx proportionately for the
period in which, by reason of such damage, there is such interference with the
Tenant's use of the Premises.
13.6 MISCELLANEOUS
In no event shall the Landlord have any obligation to make any repairs or
perform any restoration work under this Article XIII if prevented from doing so
by reason of any cause beyond its reasonable control, including without
limitation, the requirements of any applicable
-29-
laws, codes, ordinances, rules or regulations. All such repairs shall be made by
the Landlord at its expense, but the Landlord shall not be obligated to expend
for such repair any amount in excess of the net insurance proceeds actually
received by the Landlord by reason of such damage. Further, the Landlord shall
not be obligated to make any repairs or perform any restoration work to any
fixtures in or portions of the Premises or the Building which are not the
property of the Landlord.
Article XIV
-----------
EMINENT DOMAIN
--------------
14.1 RIGHTS OF TERMINATION FOR TAKING
If the Premises, or such portion thereof as to render the balance (if
reconstructed to the maximum extent practicable in the circumstances) physically
unsuitable for the Tenant's purposes, shall be taken by condemnation or right of
eminent: domain (including a temporary taking in excess of 180 days), the
Landlord or the Tenant 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 thirty (30) days after the Tenant has been deprived of possession.
Further, if so much of the Building (which may include the Premises) or the
Lot shall be so taken or condemned or shall receive any direct or consequential
damage by reason of anything done pursuant to public or quasi-public authority
such that continued operation of the same would, in the Landlord's reasonable
opinion, be uneconomical, the Landlord shall have the right to terminate this
Lease by giving notice to the Tenant of the Landlord's desire so to do not later
than thirty (30) days after the effective date of such taking.
Should any part of the Premises be so taken or condemned or receive such
damage and should this Lease be not terminated in accordance with the foregoing
provisions, the Landlord shall promptly after the determination of the
Landlord's award on account thereof, expend so much as may be necessary of the
net amount which may be awarded to the Landlord in such condemnation proceedings
in restoring the Premises to an architectural unit that is reasonably suitable
to the uses of the Tenant permitted hereunder. Should the net amount so awarded
to the Landlord be insufficient to cover the cost of so restoring the Premises,
in the reasonable estimate of the Landlord, the Landlord may, but shall have no
obligation to, supply the amount of such insufficiency and restore the Premises
to such an architectural unit, with reasonable diligence, or may terminate this
Lease by giving notice to the Tenant not later than a reasonable time after the
Landlord has determined the estimated cost of such restoration.
14.2 PAYMENT OF AWARD
The Landlord shall have and hereby reserves and excepts, and the Tenant
hereby grants and assigns to the Landlord, all rights to recover for damages to
the Building and the Lot and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking or damage,
as aforesaid, except to the extent expressly otherwise provided in this Section
14.2. The Tenant covenants to deliver such further assignments and assurances
eof as
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the Landlord may from time to time request, hereby irrevocably designating and
appointing the Landlord as its attorney-in-fact to execute and deliver in the
Tenant's name and behalf all such further assignments and assurances thereof.
The Tenant reserves the right to prosecute in any condemnation proceedings a
claim for the unamortized (based upon an amortization period equal to the Term
of this Lease) value of the Tenant's Work (other than the Restroom Work) and the
value of any of the Tenant's usual trade fixtures installed in the Premises by
the Tenant at the Tenant's expense, and for relocation expenses, provided that
such action shall not affect the amount of compensation otherwise recoverable
hereunder by the Landlord from the taking authority.
14.3 ABATEMENT OF RENT
In the event of any such taking of the Premises, the Rent and other
charges, or a fair and just proportion thereof, according to the nature and
extent of the damage sustained, shall be suspended or abated, as appropriate and
equitable in the circumstances.
14.4 MISCELLANEOUS
In no event shall the Landlord have any obligation to make any repairs
under this Article XIV if prevented from doing so by reason of any cause beyond
its reasonable control, including requirements of any applicable laws, codes,
ordinances, permit conditions, rules or regulations. Further, the Landlord
shall not be obligated to make any repairs to any portions of the Premises or
the Building which were constructed or installed by or for some party other than
the Landlord or which were not the property of the Landlord.
Article XV
----------
INSURANCE
15.1 PUBLIC LIABILITY AND PROPERTY 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 Lease Term, and
thereafter so long as the Tenant is in occupancy of any part of the Premises, a
policy of commercial general liability insurance, including the so-called
broadening endorsement (i.e., broad form) written on an occurrence basis and
including contractual liability coverage to cover any liabilities assumed under
this Lease, insuring against all claims for injury to or death of persons or
damage to property on or about the Premises or arising out of the use of the
Premises and under which the Landlord, and such other persons as are in privity
of estate with the Landlord (as may be set forth in a notice given from time to
time by the Landlord) and the Tenant are named as insureds, as their respective
interests appear, each with the same effect as if separately insured. The
minimum limits of liability of not less than $5,000,000 in the event of personal
injury to any number of persons or damage to property arising out of any one
occurrence. The Landlord shall have the right from time to time to increase
such minimum limits upon notice to the Tenant, provided that any such increase
shall provide for coverage in amounts similar to like coverage being carried on
like property in the greater metropolitan area north of Boston.
-31-
The Tenant shall also maintain in full force and effect from the date upon
which the Tenant first enters the Premises for any reason, throughout the Lease
Term and thereafter so long as the Tenant is in occupancy of any part of the
Premises, property insurance covering the Tenant's furnishings, fixtures,
equipment or other personal property of the Tenant written on an "All Risk"
basis for full replacement cost, and such other insurance as the Landlord may,
from time to time, reasonably require. Without limiting the provisions of
Section 11.2, if the Tenant fails to take out or maintain any policy of
insurance required by this Article XV to be taken out and maintained, such
failure shall be complete defense to any claim asserted by the Tenant against
the Landlord by reason of any loss sustained by the Tenant that would have been
covered by such policy.
15.2 NON-SUBROGATION
Insofar as, and to the extent that, the following provision may be
effective without invalidating or making it impossible to secure insurance
coverage obtainable from responsible insurance companies doing business in the
locality in which the Premises are located (even though extra premium may result
therefrom), the Landlord and the Tenant mutually agree for themselves and for
anyone claiming by, through or under the Tenant that, with respect to any hazard
which is covered by insurance then being carried by them, respectively, the one
carrying such insurance and suffering such loss releases the other of and from
any and all claims with respect to such loss; and they further mutually agree
that their respective insurance companies shall have no right of subrogation
against the other on account thereof. In the event that extra premium is
payable by either party as a result of this provision, the other party shall
reimburse the party paying such premium the amount of such extra premium. If,
at the request of one party, this release and non-subrogation provision is
waived, then the obligation of reimbursement shall cease for such period of time
as such waiver shall be effective. If the release of either party provided
above shall contravene any law with respect to exculpatory agreements, the
liability of the party for whose benefit such release was intended shall remain
but shall be secondary to that of the other party's insurer.
15.3 EXTRA HAZARDOUS USE
The Tenant covenants and agrees that the Tenant will not do or permit
anything to be done in or upon the Premises, or bring in anything or keep
anything therein, which would invalidate or be in conflict with insurance
coverage maintained by or for the Landlord with respect to the Building or which
would increase the rate of insurance on the Premises or on the Building above
the standard rate applicable to the Premises or the Building for the use to
which the Tenant has agreed to devote the Premises; and the Tenant further
agrees that, in the event that the Tenant shall do any of the foregoing, the
Tenant will, at Landlord's election, cease such activity or promptly pay to the
Landlord, on demand, any such increase resulting therefrom, which shall be due
and payable as additional rent hereunder.
15.4 PROPERTY INSURANCE
The Landlord shall, during the term of the Lease, carry and maintain in
force insurance coverage with respect to the Building insuring the same against
loss or damage by fire and other
-32-
hazards including within so-called "All-Risk" coverage in an amount not less
than full replacement value of the Building (exclusive of excavation and
foundation costs and the costs of subsurface tanks, conduits and similar
subsurface items), and subject to a deductible amount not exceeding $10,000.
Article XVI
-----------
DEFAULT
-------
16.1 TENANT'S DEFAULT
If:
(a) The Tenant shall fail to pay the Rent or other charges on or
before the date on which the same becomes due and payable and the same
continues for five (5) days after notice ("Default Notice") from the
Landlord of such default, except that if the Tenant shall have failed to
pay Rent or other charges due hereunder and shall have received a Default
Notice from the Landlord, the Tenant shall not be entitled to notice from
the Landlord with respect to further failures to pay Rent or other charges
on or before the date on which the same become due and payable occurring
during the succeeding twelve (12) month period, or
(b) The Tenant shall fail to perform or observe any other term or
condition contained in this Lease within thirty (30) days after notice from
the Landlord thereof, unless such default is of such a nature that it
cannot be cured within such thirty (30) day period, in which case no event
of default shall occur unless the Tenant shall not commence to cure such
failure promptly within such ten day period and thereafter continuously and
diligently complete the curing of the same, or
(c) The Tenant shall abandon the Leased Premises except as provided in
Section 5.1(i), above, or
(d) If the Tenant's interest in this Lease shall devolve upon or pass
to any person, whether by operation of law or otherwise, except as
expressly permitted under Article VI,
(e) Except as otherwise provided by applicable law, if the estate
hereby created shall be taken on execution or by other process of law, or
if the Tenant shall be judicially declared bankrupt or insolvent according
to law, or if any assignment shall be made of the property of the Tenant
for the benefit of creditors, or if a receiver, guardian, conservator,
trustee in involuntary bankruptcy or other similar officer shall be
appointed to take charge of all or any substantial part of the Tenant's
property by a court of competent jurisdiction, or if a petition shall be
filed for the reorganization of the Tenant under any provisions of law now
or hereafter enacted, and such proceeding is not dismissed within forty-
five (45) days after it is begun, or if the Tenant shall file a petition
-33-
for such reorganization, or for arrangements under any provisions of such
laws providing a plan for a debtor to settle, satisfy or extend the time
for the payment of debts,
then, and in any of such cases (notwithstanding any instance of a former breach
of covenant or waiver of the benefit hereof or consent in a former instance),
the Landlord may, without prejudice to any remedies which might otherwise be
available for arrears of rent or preceding breach of covenant, immediately or at
any time thereafter while such failure continues, terminate this Lease by giving
notice to the Tenant. The Tenant hereby acknowledges that the foregoing default
notice provisions are in lieu of, and in substitution for, any statutory notice
to terminate, vacate or quit the Premises. The Tenant covenants and agrees,
notwithstanding such termination of this Lease, to pay and be liable for, on the
days originally fixed herein for the payment thereof, amounts equal to the
several installments of Rent, additional rent and other charges reserved as they
would, under the terms of this Lease, become due if this Lease had not been
terminated, and to pay within fifteen (15) days of such termination an amount
equal to the Rent, additional rent and other charges that would have been due
and payable but for any rent concession (such as free rent, reduced rent and the
like), together with the unamortized value of any leasehold improvements
constructed or " installed in the Premises at the Landlord's cost, if any, but,
in the event the Premises or any part thereof shall be re-let by the Landlord,
the Tenant shall be entitled to a credit in the net amount of rent received by
the Landlord in reletting, after deduction of all of the Landlord's expenses
incurred in reletting the Premises (including, without limitation, remodeling
costs, attorneys' fees, brokerage fees and the like), and in collecting the rent
in connection therewith, in the following manner:
Amounts received by the Landlord after reletting and for the remainder of
what would have been the Lease Term had the Tenant fully complied with the terms
of this Lease (and no other special event allowing termination had occurred),
shall first be applied against the Landlord's expenses, until the same are
recovered, and until such recovery the Tenant shall pay, as of each day when a
payment would fall due under this Lease, the amount which the Tenant is
obligated to pay under the terms of this Lease (the Tenant's liability prior to
any such reletting and such recovery not in any way to be diminished as a result
of the fact that such reletting might be for a rent higher than the rent
provided for in this Lease); when and if such expenses have been completely
recovered, the amounts received from reletting by the Landlord as have not
previously been applied shall be credited against the Tenant's obligations as of
each day when a payment would fall due under this Lease, and only the net amount
thereof shall be payable by the Tenant. If the Landlord re-lets the whole or
any part of the Premises from time to time, such reletting may be at such rental
rates and upon such conditions, which may include free rent periods and other
concessions, as the Landlord in its sole discretion may determine. The Landlord
shall in no event be liable for refusal or failure to re-let the whole or any
part of the Premises, or in the event of any reletting the failure to collect
any rent due upon such reletting, and no such failures or refusals shall operate
to relieve the Tenant from any liability hereunder.
As an alternative, at the election of the Landlord made any time after such
termination, the Tenant shall pay within fifteen (15) days of billing therefor
to the Landlord as liquidated damages, in addition to any amounts which were due
prior to the date of such termination and whether or not the Landlord has
received payment pursuant to the provisions of the preceding
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paragraphs of this Section 16.1, such a sum as at the time of such election
represents (i) the amount equal to the Rent that would have been due and payable
but for any rent concessions (such as free rent, reduced rent and the like)
provided in this Lease, (ii) the amount of the excess, if any, of the then value
(the "Lease Value") of the total Rent, additional rent and other benefits which
would have accrued to the Landlord under this Lease for the remainder of what
would have been the Lease Term if the Lease terms had been fully complied with
by the Tenant (and no other special event allowing termination had occurred)
over the aggregate projected market rental value of the Premises, estimated as
of the date of such election, as a single lump sum, for the balance of such
period plus, (iii) an amount equal to the Rent, additional rent and other
charges due during the six months next following the date of such termination,
or if the period from the date of termination through the last day of what would
have been the Lease Term (if the Lease terms had been fully complied with and a
termination had not occurred) is less than six months, an amount equal to the
Rent, additional rent and other charges due during such period. Notwithstanding
the foregoing, the Tenant shall not be required to make any payments pursuant to
clause (iii) of the immediately preceding sentence if, within fifteen (15) days
after the date of termination, the Tenant pays to the Landlord all Rent,
additional rent and other charges payable to the Landlord hereunder through the
date of such termination, and thereafter makes all payments due the Landlord
under this Section 16.1 on or before the date when the same become due.
Nothing herein contained shall be construed as limiting or precluding the
recovery by the Landlord against the Tenant of any sums or damages to which, in
addition to the damages particularly provided above, the Landlord may lawfully
be entitled by reason of any default hereunder on the part of the Tenant. The
Landlord agrees to use reasonable efforts to mitigate its damages upon any
default hereunder on the part of the Tenant. Further, if this Lease is
guaranteed on behalf of the Tenant, all of the foregoing provisions with respect
to bankruptcy, etc. of the Tenant shall be treated as reading "the Tenant or the
guarantor" hereof and shall, accordingly, apply fully to any such guarantor.
Unless prohibited by applicable law, the Tenant agrees to pay to the
Landlord the amount of all legal fees and expenses incurred by the Landlord
arising out of or resulting from any act or omission by the Tenant with respect
to this Lease or the Premises, including without limitation, any breach by the
Tenant of its obligations hereunder.
16.2 LANDLORD'S DEFAULT
The Landlord shall in no event be in default in the performance of any of
the Landlord's obligations hereunder unless and until the Landlord shall have
failed to perform such obligations within thirty (30) days, or such additional
time as is reasonably required to correct any such default, after notice by the
Tenant to the Landlord properly specifying wherein the Landlord has failed to
perform any such obligation.
Further, if the holder of a mortgage which includes the Premises notifies
the Tenant that such holder has taken over the Landlord's rights under this
Lease, the Tenant shall not assert any right to deduct the cost of repairs or
any monetary claims against the Landlord theretofore
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accrued from rent thereafter due and payable, but shall took solely to the
Landlord and not such holder for satisfaction of such claim.
Article XVII
------------
MISCELLANEOUS PROVISIONS
------------------------
17.1 WAIVER
Failure on the part of the Landlord or the Tenant to complain of any action
or non-action on the part of the other, no matter how frequently the same may
occur or how long the same may continue, shall never be a waiver by the Landlord
or the Tenant of its rights hereunder. Further, no waiver at any time of any of
the provisions hereof by the Landlord or the Tenant shall be construed as a
waiver of any of the other provisions hereof, and a waiver at any time of any of
the provisions hereof shall not be construed as a waiver at any subsequent time
of the same provisions. The consent or approval of the Landlord or the Tenant
to or of any action by the other requiring such consent or approval shall not be
construed to waive or render unnecessary the Landlord's or the Tenant's consent
or approval to or of any subsequent similar act by the other. No option or
right granted to the Tenant to renew this Lease or to extend the Lease Term
shall be considered to give the Tenant any further option or right to renew or
extend.
17.2 COVENANT OF QUIET ENJOYMENT
Subject to the terms and provisions of this Lease and on payment of the
rent and compliance with all of the terms and provisions of this Lease, the
Tenant shall lawfully, peaceably and quietly have, hold, occupy and enjoy the
Premises during the Lease Term, without hindrance or ejection by the Landlord or
by any persons lawfully claiming under the Landlord; the foregoing covenant of
quiet enjoyment is in lieu of any other covenant, express or implied.
17.3 NO PERSONAL LIABILITY OF THE LANDLORD
The Tenant agrees to look solely to the Landlord's then equity interest in
the Building at the time owned, or in which the Landlord holds an interest as
ground lessee, for recovery of any judgment from the Landlord; it being
specifically agreed that neither the Landlord (whether the Landlord be an
individual, partnership, firm, corporation, trustee or other fiduciary) nor any
of the partners constituting the Landlord, nor any beneficiary of any trust of
which any person holding the Landlord's interest is trustee nor any successor in
interest to any of the foregoing shall ever be personally liable for any such
judgment, or for the payment of any monetary obligation to the Tenant. The
covenants of the Landlord contained in this Lease shall be binding upon the
Landlord and the Landlord's successors only with respect to breaches occurring
during the Landlord's and the Landlord's successors' respective periods of
ownership of the Landlord's interest hereunder.
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17.4 NOTICE TO MORTGAGEE AND GROUND LESSOR; OPPORTUNITY TO CURE
After receiving notice from any person, firm or other entity that it holds
a mortgage which includes the Premises as part of the mortgaged premises, or
that it is the ground lessor under a lease with the Landlord, as ground lessee,
which includes the Premises as a part of the demised premises, no notice from
the Tenant to the Landlord shall be effective unless and until a copy of the
same is given to such holder or ground lessor, and the curing of any of the
Landlord's defaults by such holder or ground lessor shall be treated as
performance by the Landlord. Accordingly, no act or failure to act on the part
of the Landlord which would entitle the Tenant under the terms of this Lease, or
by law, to be relieved of the Tenant's obligations hereunder or to terminate
this Lease, shall result in a release or termination of such obligations or a
termination of this Lease unless (i) the Tenant shall have been notified in
advance of the existence of a firm or other entity that holds a mortgage which
includes the Premises or of a ground lessor, and (ii) the Tenant shall have
first given written notice of the Landlord's act or failure to act to such
holder or ground lessor, if any, specifying the act or failure to act on the
part of the Landlord which could or would give basis to the Tenant's rights; and
(iii) such holder or ground lessor, after receipt of such notice, has failed or
refused to correct or cure the condition complained of within a reasonable time
thereafter, but nothing contained in this paragraph shall be deemed to impose
any obligation on any such holder or ground lessor to correct or cure any such
condition. "Reasonable time" as used above means and includes a reasonable time
to obtain possession of the Lot and Building if any such holder or ground lessor
elects to do so and a reasonable time to correct or cure the condition if such
condition is determined to exist.
17.5 ASSIGNMENT OF RENTS
With reference to any assignment by the Landlord of the Landlord's interest
in this Lease, or the rents payable hereunder, conditional in nature or
otherwise, which assignment is made to the holder of a mortgage or a ground
lessor on property which includes the Premises, the Tenant agrees:
(a) That the execution thereof by the Landlord, and the acceptance
thereof by the holder of such mortgage or ground lessor, shall never be
treated as an assumption by such holder or ground lessor of any of the
obligations of the Landlord hereunder, unless such holder or ground lessor
shall, by notice sent to the Tenant, specifically make such election; and
(b) That, except as aforesaid, such holder or ground lessor shall be
treated as having assumed the Landlord's obligations hereunder only upon
foreclosure of such holder's mortgage and the taking of possession of the
Premises, or, in the case of a ground lessor, the assumption of the
Landlord's position hereunder by such ground lessor. In no event shall the
acquisition of title to the Building and the land on which the same is
located by a purchaser which, simultaneously therewith, leases the entire
Building or such land back to the seller thereof be treated as an
assumption by operation of law or otherwise, of the Landlord's obligations
hereunder, but the Tenant shall look solely to such seller-lessee, and its
successors from time to time in title, for performance
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of the Landlord's obligations hereunder. In any such event, this Lease
shall be subject and subordinate to the lease to such purchaser-lessor. For
all purposes, such seller-lessee, and its successors in title, shall be the
Landlord hereunder unless and until the Landlord's position shall have been
assumed by such purchaser-lessor.
17.6 NO BROKERAGE
The Landlord and the Tenant warrant and represent to the other that each
has dealt with no brokers other than Leggat, McCall, Xxxxx & Xxxxx, Inc. and
Dobroth & Fryer in connection with the consummation of this Lease, and, in the
event of any brokerage claims, other than claims by Leggat, McCall, Xxxxx &
Xxxxx, Inc. and Dobroth & Fryer against the Landlord or the Tenant predicated
upon prior dealings with the Tenant or the Landlord, as the case may be, the
Landlord and the Tenant each agree to defend the same and indemnify the other
against any such claim based upon a violation of the foregoing representations
and warranties by either party.
17.7 INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this Lease, or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforceable to the fullest extent permitted by
law.
17.8 PROVISIONS BINDING, ETC.
Except as herein otherwise expressly provided, the terms hereof shall be
binding upon and shall inure to the benefit of the successors and assigns,
respectively, of the Landlord and Tenant and, if the Tenant shall be an
individual, upon and to his heirs, executors, administrators, legal
representatives, successors and assigns. Each term and each provision of this
Lease to be performed by the Tenant shall be construed to be both a covenant and
a condition. The. reference contained to successors and assigns of the Tenant
is not intended to constitute a consent to assignment by the Tenant, but has
reference only to those instances in which the Landlord may later give consent
to a particular assignment as required by those provisions of Article VI hereof.
If the Tenant be several persons, natural or corporate, the liability of such
persons for compliance with the obligations of the Tenant under this Lease shall
be joint and several. In all instances where the Tenant is required under this
Lease to pay any sum or do any act at or by a particular time it is agreed that
time is of the essence.
17.9 RECORDING
The Tenant agrees not to record this Lease, but each party hereto agrees,
on the request of the other, to execute, acknowledge and deliver a Notice of
Lease reasonably satisfactory in form to the Landlord's attorneys.
In no event shall such document set forth the Rent or other charges payable
by the Tenant under this Lease; and any such document shall expressly state that
it is executed pursuant to the
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provisions contained in this Lease, and is not intended to vary the terms and
conditions of this Lease. In the event of termination of this Lease, the Tenant
agrees to execute a recordable instrument setting forth the fact of and date of
such termination and hereby irrevocably designates and appoints the Landlord as
its attorney-in-fact to execute in the name of the Tenant and to record such
instrument.
17.10 NOTICES
Whenever, by the terms of this Lease, notice shall or may be given either
to the Landlord or to the Tenant, such notice shall be in writing and shall be
sent by registered or certified mail, postage prepaid or by so-called "express"
mail (such as Federal Express or U.S. Postal Service Express Mail):
If intended for the Landlord, addressed to the Landlord at the address
set forth on the first page of this Lease, or to such other address or
addresses as may from time to time hereafter be designated by the
Landlord by like notice.
If intended for the Tenant, addressed to the Tenant at the address set
forth on the first page of this Lease, or to such other address or
addresses as may from time to time hereafter be designated by the
Tenant by like notice.
All such notices shall be effective when deposited in the :United States
mail within the Continental United States or when received by the "express" mail
carrier, as the case may be.
17.11 WHEN LEASE BECOMES BINDING
Employees or agents of the Landlord have no authority to make or agree to
make a lease or any other agreement or undertaking in connection herewith. The
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the execution and delivery
hereof by both the Landlord and the Tenant. All negotiations, consideration,
representations and understandings between the Landlord and the Tenant are
incorporated herein and may be modified or altered only by written agreement
between the Landlord and the Tenant, and no act or omission of any employee or
agent of the Landlord shall alter, change or modify any of the provisions
hereof.
17.12 SECTION HEADINGS
The section headings throughout this instrument are for convenience and
reference only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or meaning
of the provisions of this Lease. In addition, if any provision of this Lease
shall conflict with any provision of any Exhibit to this Lease, the provisions
of this Lease shall control.
17.13 RIGHTS OF MORTGAGEE
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(a) If any holder of a mortgage or holder of a ground lease of
property which includes the Premises, originally given to an institutional
lender, and executed and recorded subsequent to the date of this Lease,
shall so elect, the interest of the Tenant hereunder shall be subordinate
to the rights of such holder, provided that such holder shall agree to
recognize in writing the right of the Tenant to use and occupy the Premises
upon the payment of rent and other charges payable by the Tenant under this
Lease, and the performance by the Tenant of the Tenant's obligations
hereunder (but without any assumption by such holder of the Landlord's
obligations under this Lease); or
(b) If any holder of a mortgage or holder of a ground lease of
property which includes the Premises, originally given to an institutional
lender, and executed and recorded prior to the date of this Lease, shall so
elect, this Lease, and the rights of the Tenant hereunder, shall be
superior in right to the rights of such holder, with the same force and
effect as if this Lease had been executed and delivered, and recorded, or a
statutory notice hereof recorded, prior to the execution, delivery and
recording of any such mortgage.
The election of any such holder as to Subsection (a) above shall be
exercised by notice to the Tenant, in the same fashion as notices under
this Lease are given by the Landlord to the Tenant, and, if such notice is
given, such subordination shall be effective with reference to advances
then or thereafter made by such holder under such mortgage or in connection
with such ground lease financing. Any election as to Subsection (b) above
shall become effective upon either notice from such holder to the Tenant in
the same fashion as notices from the Landlord to the Tenant are to be given
hereunder or by the recording in the appropriate registry or recorder's
office of an instrument, in which such holder subordinates its rights under
such mortgage or ground lease to this Lease.
(c) The covenant and agreement contained in this Lease with respect to
the rights, powers and benefits of any such holder constitute a continuing
offer to any person, corporation or other entity, which by accepting or
requiring, an assignment of this Lease or by entry or foreclosure assumes
the obligations herein set forth with respect to such holder; every such
holder is hereby constituted a party to this Lease and an obligee hereunder
to the same extent as though its name was written hereon as such; and such
holder shall at its written election be entitled to enforce such provisions
in its own name.
(d) If in connection with obtaining financing for the Building, a
bank, insurance company, pension trust or other institutional lender shall
request reasonable modifications in this Lease as a condition to such
financing, the Tenant will not unreasonably withhold, delay or condition
its consent thereto, provided that such modifications do not (i) increase
the monetary obligations of the Tenant or (ii) materially increase the
other obligations of the Tenant hereunder or materially adversely affect
the Tenant or the leasehold interest hereby created.
(e) Provided the Tenant shall have been notified in advance of the
existence of a firm or other entity that holds a mortgage which includes
the Premises or of a ground
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lessor, no assignment of this Lease and no agreement to make or accept
any surrender, termination or cancellation of this Lease and no agreement
to modify so as to reduce the rent, change the term, or otherwise
materially change the rights of the Landlord under this Lease, or to
relieve the Tenant of any obligations or liability under this Lease,
shall be valid unless consented to in writing by the Landlord's
mortgagees of record, if any.
(f) The Tenant agrees on request of the Landlord to execute and
deliver from time to time any agreement which may reasonably be deemed
necessary to implement the provisions of this Section 17.13.
17.14 STATUS REPORT; MODIFICATION
Recognizing that the Landlord or the Tenant may find it necessary to
establish to third parties, such as accountants, banks, mortgagees or the like,
the then current status of performance hereunder (such as, but not limited to, a
so-called estoppel certificate executed and acknowledged by the Tenant, in form
satisfactory to the Landlord, (i) stating that this Lease is then in full force
and effect and has not been modified or, if modified, setting forth the specific
nature of all modifications, and (ii) setting forth the date to which the Rent
and any additional rent or other charges has been paid, and (iii) stating
whether or not, to the best knowledge of the Tenant, the Landlord is in default
under this Lease, and if the Landlord is in default, setting forth the specific
nature of all such defaults), the Tenant, on the request of the Landlord made
from time to time, will promptly and in any event within twenty-one (21) days of
a written request therefor furnish a statement or certification of the status '
of any matter pertaining to this Lease; and the Landlord, on request of the
Tenant made from time to time will promptly and in any event within twenty-one
(21) days of a written request therefor, furnish a statement or certification of
the status of any matter pertaining to this Lease. Without limiting the
generality of the foregoing, the Tenant specifically agrees, promptly upon the
commencement of the Lease Term, to acknowledge to the Landlord satisfaction of
any requirements with respect to construction of leasehold improvements except
for such matters as the Tenant may set forth specifically in such statement.
Further, the Tenant agrees that it will respond to the Landlord in connection
with, or provide to the Landlord promptly and in any event within twenty-one
(21) days of a written request therefor, requests for information, agreements or
instruments collateral or relating to this Lease, such as but not limited to
requests for information regarding the merger, consolidation or other
restructuring of the Tenant, and executing and delivering agreements in
connection with amending, extending or renewing the Lease. 'Me Tenant
acknowledges that any statement delivered pursuant to this Section 17.14 may be
relied upon by any purchaser or owner of the Building or the Lot or any part
thereof, or the Landlord's interest in the Building or the Lot or any ground or
underlying lease, or by any mortgagee, or by any assignee of any mortgagee, or
by any lessee under any ground or underlying lease.
17.15 SECURITY DEPOSIT
If, in Section 1.1 hereof a Security Deposit is specified, the Tenant
agrees that the same will be paid upon execution and delivery of this Lease, and
that the Landlord shall hold the same, throughout the Lease Term, as security
for the performance by the Tenant of all obligations on
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the part of the Tenant to be kept and performed. The Landlord shall have the
right from time to time without prejudice to any other remedy the Landlord may
have on account thereof, to apply the Security Deposit, or any part thereof, to
the Landlord's damages arising from any default on the part of the Tenant. Upon
such application the amount so applied shall be paid by the Tenant to the
Landlord upon demand in order that the security deposit may at all times be
equal to the amount set forth in Section 1.1. The Tenant not then being in
default, the Landlord shall return the deposit, or so much thereof as shall not
have theretofore been applied in accordance with the terms of this Section
17.15, to the Tenant following the expiration or earlier termination of the
Lease Term and surrender of possession of the Premises by the Tenant to the
Landlord at such time. The Landlord shall, unless otherwise required by law,
have no obligation to pay interest on the deposit, shall maintain the Security
Deposit in a separate account and shall not comminute the Security Deposit with
the Landlord's other funds. If the Landlord conveys the Landlord's interest
under this Lease, the deposit, or any part thereof not previously applied, shall
be turned over by the Landlord to the Landlord's grantee, and, when so turned
over, the Tenant agrees to look solely to such grantee for proper application of
the deposit in accordance with the terms of this Section 17.15, and the return
thereof in accordance herewith. The Tenant agrees that the Tenant will not
assign, encumber or pledge, attempt to assign, encumber or pledge the moneys
deposited herein as security, and that neither the Landlord, nor its successors
and assigns, shall be bound by any such assignment, encumbrance or pledge,
attempted assignment, attempted pledge, or attempted encumbrance.
The holder of a mortgage of property which includes the Premises shall
not be responsible to the Tenant for the return or application of any such
deposit, whether or not it succeeds to the position of the Landlord hereunder,
unless such deposit shall have been received in hand by such holder.
For the purposes of Sections 17.4, 17.5, 17.13, 17.14, and this Section
17.15, the term "mortgage" includes a mortgage on a leasehold interest of the
Landlord (but not one on the Tenant's leasehold interest).
17.16 SELF-HELP
The Landlord shall have the right, but shall not be required, to pay such
sums or do any act which requires the expenditure of moneys which may be
necessary or appropriate by reason of the failure or neglect of the Tenant to
perform any of the provisions of this Lease, and in the event of the exercise of
such right by the Landlord, the Tenant agrees to pay to the Landlord forthwith
upon demand the cost of performing the same, plus an administrative charge
(covering overhead and profit) not to exceed 10% of such cost; and if the Tenant
shall default in such payment, the Landlord shall have the same rights and
remedies as the Landlord has hereunder for the failure of the Tenant to pay the
Rent.
17.17 RELIEF LIMITED
Whenever the Tenant shall claim under any provision of this Lease, that
the Landlord has unreasonably withheld or delayed its consent to some request of
the Tenant, the Tenant shall have no claim for damages by reason of such alleged
withholding or delay, and the Tenant's sole
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remedy therefor shall be declaratory or injunctive relief or submittal of the
claim to mediation, as is provided below, but in any event without the recovery
of damages. The parties agree that any such claim may be submitted for mediation
in accordance with the Building Owners and Management Association Alternative
Dispute Resolution Guidelines and Rules or any other mutually agreeable dispute
resolution procedure.
17.18 HOLDING OVER
Any holding over by the Tenant after the expiration of the Lease Term
without the written consent of the Landlord shall be treated as a tenancy at
sufferance at a rental rate equal to 150% of the Rent specified herein (prorated
on a daily basis) and shall otherwise be on the terms and conditions set forth
in this Lease, so far as applicable.
Any holding over by the Tenant after the expiration of the Lease Term
with the written consent of the Landlord shall be on a month-to-month basis,
terminable by either party on thirty (30) days' notice and shall be at the same
Rent specified herein and shall otherwise be on the terms and conditions set
forth herein, so far as applicable.
17.19 CERTIFICATE
Each of the persons executing this instrument on behalf: of the Tenant,
hereby covenant and warrant that the Tenant is a duly existing and valid
corporation and that the Tenant is qualified to do business in Massachusetts.
Further, the Tenant shall deliver to the Landlord, at the time of execution of
this Lease, a Clerk's or Secretary's Certificate in the form attached hereto as
Exhibit H (or other suitable form satisfactory to counsel for the Landlord), as
to the due authorization of the execution of this Lease and incumbency of the
signing officer.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed, under seal, as of the Date set forth in Section 1.1.
LANDLORD:
Metropolitan Life Insurance Company
By: /s/ Xxxx X. Xxxxx
-------------------------------------------
Its Assistant Vice President
hereunto duly authorized
TENANT:
Adra Systems, Inc.
By: /s/ X. X. Xxxxxxx
-------------------------------------------
Its Vice President Finance & Administration
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hereunto duly authorized
EXHIBIT A
Plan Showing the First Floor Premises
-------------------------------------
X-0
XXXXXXX X-0
Plan Showing the Third Floor Premises
-------------------------------------
A-2
EXHIBIT B
Description of the Lot
----------------------
The real property affected by the instrument of which this Exhibit B forms
a part consists of those certain parcels of land with all buildings, structures
and improvements now or hereafter situated thereon located in Chelmsford and
Lowell, Middlesex County, Massachusetts more particularly described as follows:
PARCEL 1
--------
A certain parcel of land with all buildings, structures and improvements
now or hereafter situated thereon, located in the City of Lowell, Massachusetts
and the Town of Chelmsford, Massachusetts, being shown as Parcel "B" on a
"Compiled Plan of Land in Chelmsford and Lowell, Massachusetts', prepared
for ,',Interstate Executive Center Associates, c/o Dobroth & Fryer. Scale
1" = 100', dated October 23, 1984, by Xxxxxx X. Xxxx Associates, Inc., Civil
Engineers and Surveyors, recorded at Plan Book 147, Plan No. 50, Middlesex North
Registry of Deeds, said parcel containing 8.53 acres, more or less.
PARCEL 2
--------
A certain parcel of land with all buildings, structures and improvements
now or hereafter situated thereon located in the Town of Chelmsford,
Massachusetts, being shown as Parcel "C" on the Plan first below referred to and
located on the easterly side of Xxxxxxx Drive, more fully described as follows:
Beginning at the northwesterly corner of the premises, on the easterly
side of Xxxxxxx Drive and the Southwesterly corner of land now or
formerly of XXXXXX;
thence north 76(degrees) 43' 33" east, 100.00 feet to a point;
thence south 10(degrees) 57' 42" east, 40.03 feet to a point;
thence south 13(degrees) 53' 47" east, 24.85 feet to a point;
thence south 72(degrees) 02' 31" west, 100.00 feet to a point;
thence north 13(degrees) 53' 47" west, 34.70 feet to a point;
thence north 11(degrees) 11' 55" west, 38.34 feet to the point of
beginning.
Said parcel containing 6,882 square feet, more or less and being shown on a
plan recorded at the Middlesex North Registry of Deeds, Plan Book 147, Plan No.
50.
B-1
The within premises are conveyed together with the benefit of those certain
easements set forth in a Declaration of Easements dated January 17, 1984,
recorded with said Deeds, Book 2690, Page 464 and as shown on a Plan entitled
"Plan of Land in Chelmsford and Lowell prepared for Interstate Executive Center
Assoc. c/o Dobroth Fryer" dated December 30, 1983 and recorded with said Deeds
in Plan Book 142, Plan 45, including without limitation, an Access Way Easement
and Drainage Easement, Parking Easement B and a Drainage Easement located on
Parcel A.
B-2
EXHIBIT C
Rules and Regulations
---------------------
The Tenant shall observe faithfully, and comply with, and shall not permit
the violation of, the Rules and Regulations set forth in this Exhibit C and such
additional Rules and Regulations as Landlord may, from time to time, adopt. All
of the terms, covenants and conditions of this Exhibit C shall be deemed part of
this Lease as though fully set forth in the body of this Lease. In case Tenant
disputes the reasonableness of any additional Rules and Regulations hereafter
adopted by Landlord. the Tenant's right to dispute the reasonableness of any
additional Rule or Regulation shall be deemed waived unless asserted by service
of a notice upon the Landlord within ten (10) days after the date upon which the
Landlord shall give notice to the Tenant of the adoption of any such additional
Rule or Regulation.
The Tenant agrees:
1. The sidewalks, plazas, entrances, lobbies, corridors, elevators, fire
exits and stairways of the Building shall not be encumbered or obstructed by any
tenant or its agents, employees, licensees or invitees, or be used for any
purpose other than ingress to and egress from the tenant's premises.
2. All deliveries to and' removals from the Building of furniture,
equipment and supplies shall be by way of the rear door and during such hours as
may be prescribed by the Landlord. All incoming and outgoing shipments must be
moved directly, by the delivery or pick up agent, from the delivery entrance.
Building operating personnel are not authorized to receipt for shipments to or
from the building. Furniture, equipment and supplies. and other packages,
materials and items requiring the use of a hand truck or other type of wheeled
transporter, shall be moved in or out of the Building or between floors of the
Building only upon the elevator or elevators designated by the Landlord for that
purpose and then only during such hours and in such manner as may be prescribed
by the Landlord and any damage to the Building or any part thereof caused by the
moving in or out of the Building or between floors of the Building of said
materials shall be repaired by the Landlord at the expense of the tenant
responsible therefor. No tenant shall move or permit to be moved into or out of
the Building or the Premises any furniture, furnishings, equipment or other
property (excluding, only routine deliveries to and from the Premises of
supplies, packages and the like) without having first notified in advance the
Landlord or the Building Manager. Notwithstanding the foregoing, the Landlord
hereby acknowledges and agrees to the Tenant's use of common areas and
facilities on the first floor of the Building for shipping and receiving, and to
the Tenant's use of the elevator between the first and third floors during the
Tenant's business hours, so long as the Tenant's shipping and receiving
activities do not unreasonably interfere with or impede these common areas and
facilities.
3. No tenant shall obtain or accept for use in its premises. food or
beverage dispensers or vending machines of any kind without the written consent
of the Landlord, except to the extent approved by the Landlord.
C-1
4. If a tenant's premises become infested with vermin due to tenants own
misuse of the premises, such tenant, at its sole cost and expense, shall cause
its premises to be exterminated by such exterminators as shall be approved by
the Landlord at such times and to such extent as the Landlord deems necessary to
exterminate the vermin.
5. No animals or birds, bicycles or other vehicles shall be allowed in the
corridors, lobbies, elevators, or elsewhere in the Building
6. Canvassing, soliciting and peddling in the Building, is prohibited and
each tenant shall cooperate to prevent the same.
7. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweeping, rubbish, rags or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures by Tenant, its servants.
employees, agents, visitors or licensees, shall be borne by Tenant.
8. Each tenant shall, at its expense, provide artificial light for the
------
employees of Landlord while doing janitor's service or other cleaning and in
making repairs or alterations in said Premises. Subject to the provisions of
Article XV of this Lease, Landlord shall be in no way responsible to any tenant
for loss of property from the Premises. however occurring, or for damage done to
the furniture or other effects of any tenant by Landlord's agents, other
janitors, cleaners, employees or contractors doing work in the Premises.
9. Typical floors are designed to carry live loads not exceeding fifty
(50) pounds per square foot. Safes and other especially heavy items shall not
be located in the Premises without Landlord's prior written approval.
10. Tenant may request heating or air-conditioning during other periods in
addition to normal working hours by submitting its request in writing! to the
Building Manager's office no later than 2:00 PM of the preceding workday (Monday
through Friday) on forms available from the Building Manager. The request shall
clearly state the start and stop hours of the "off-hour" service. Tenant shall
submit to the Building Manager a list of personnel who are authorized to make
such requests. Chares for "off-hour" services shall be paid, as additional
rent, by the Tenant. Such charges shall be fair and reasonable and reflect the
additional operating and administrative costs involved as estimated in good
faith by the Landlord and the necessity of having maintenance personnel on duty
for a full shift regardless of the actual time the equipment is in use. If two
or more tenants originate such requests, charges shall be prorated for hours of
simultaneous operation.
11. Each tenant shall be responsible for all persons under the Tenant's
control authorized to have access to the Building and shall be liable to
Landlord for all of their acts while in the Building or on the Lot. Landlord
may require all persons given access to the Building during non-business hours
to sign a register on entering and leaving the Building.
12. No curtains, blinds, shades or screens other than those furnished by
Landlord shall be attached to, hung in or used in connection with, any window or
door of the Premises, without
C-2
the prior written consent of Landlord. Such curtain, blinds, shades, screens or
other fixtures must be of a quality type, design and color, and attached in the
manner approved by Landlord.
13. Tenants may be requested to assign from among their employees
personnel to perform specific tasks required in connection with the emergency
evacuation of the Building.
14. The Landlord reserves the right at any time to change, rescind or
waive any one or more of these Rules and Regulations, and to make such other and
further reasonable rules and regulations as its judgment may from time to time
be necessary for the safety, care, convenience or cleanliness of the Building or
for the preservation of comfort or good order therein. The Landlord shall not
be liable to any tenant for violation of the same by any ocher tenant, its
agents, employees, licensees or invitees.
15. Any tenant may submit requests to the Building Manager for "special
services" ("special services". means services which are in addition to those
services required to be provided by the Landlord at the Landlord's cost under
the Lease, and include such services as arranging for the construction or
installation of tenant improvements). If the Landlord chooses to undertake any
special services requested by any tenant, the tenant agrees to pay to the
Landlord, promptly upon billing, the full cost of the work performed or services
rendered plus an administrative charge equal to ten percent (10%) of such cost
to cover the Landlord's cost of overhead, supervision and coordination of the
special services.
16. Smoking is not permitted in the lobbies, elevators or other common
areas of the Building.
C-3
EXHIBIT D
Plans and Specifications for Tenant's Work
------------------------------------------
Plans prepared by Xxxxxx Architectural Services for Adra Systems, Inc.
-- Tenant Work for Building at Two Executive Drive, Chelmsford, First and Third
Floors, dated January 13, 1993, consisting of three sheets.
D-1
EXHIBIT E
Sign Standards
--------------
Tenant shall have the right, subject to the Landlord's approval not to be
unreasonably withheld or delayed, to exterior "signs" in conformance with
standards and requirements as follows
1. Building Sign. The Tenant, at its expense, may install a Building sin
-------------
consisting of the Tenant`s logo and/or letters to spell out, as a maximum, the
corporate name of the tenant; such logo and/or letters to be individually
affixed to the exterior of the building in a location and manner acceptable co
the Landlord. The logo and individual letters (i) shall be no more d= two feet
high nor more than two and a half inches deep, (ii) shall not be internally
illuminated or illuminated by lights bracketed off the building, and (iii) shall
be fabricated of no. 304 (18-8 alloy) stainless steel with a stain finish, grain
to be horizontal; the minimum thickness of faces to be 18-gauge and sides to be
22-gauge. The design, location. and proposed installation must be approved in
writing, by the Landlord prior to installation.
2. Street Sign. Where the Tenant is a major tenant (tenant of at least
-----------
20.000 square feet) of the building, the Tenant, at its expense, may request
that the Landlord include on either one or both faces of the street address sign
located at the entrance of the building site lettering to spell out. as a
maximum, the corporate name of the Tenant. The background field area for
lettering so requested is limited to a maximum size of 4 inches high by 7"
inches long on the signs of multi-tenanted buildings. on the signs of
single-tenanted buildings the maximum background field area is 17 inches high by
72 inches long, and in addition to the corporate name may also include lettering
to identify a subdivision or special use group of the Tenant pertinent to the
building. The individual letters on these signs shall be adhesive backed vinyl
with a maximum height of 6 inches; they may be at the Tenant's option in the log
typeface of Tenant's corporate graphic standards, or helvitica medium. Unless
otherwise approved in writing by the Landlord, the color of the letters shall be
black. The Tenant is responsible for graphic layout and for the Landlord's costs
of providing and installing the lettering.
3. Traffic Directory Signs. Where the Tenant is the sole tenant of the
-----------------------
entire building, the Tenant, at its expense and with the prior written approval
of the Landlord, may install within the bounds of the leased building sire
vehicular and/or pedestrian directory sins. Such signs shall be identical in
design and construction. The sign face shall be rectilinear and shall nor have
an area exceeding 20 inches high by 28 inches wide. The mounting height of such
signs shall nor exceed the mounting height of the other traffic control signs in
the vicinity of the Building.
4. Flag Pole. Where the Tenant is the sole tenant of the entire building.
---------
the Tenant, at its expense. and subject to prior written approval of the
Landlord. may install within the bounds of the leased building site a ground-
mounted pole for purposes of "flying" an American, a State or a corporate flag.
The pole design, location, and proposed installation must be approved in writing
by the Landlord prior to installation.
E-1
General requirements pertaining to all exterior signs, including interior
signs that are intended to be seen or visible from the exterior, are as follows:
A. Any sin and the installation thereof shall comply with all applicable
laws and ordinances, and the Tenant, at its expense, shall have obtained all
necessary permits and licenses therefor;
B. The location, size, design, materials used, and colors of any sign,
including flagpole, flags, banners, balloons, and/or any other type of
attention-getting, device is subject to the Landlord's written approval prior to
installation;
C. Prior to the Tenant's vacation of the Premises. in whole or in part,
the Tenant, at its expense, will remove or cause to be removed (i) the Building
Sign and restore the facade of the Building to the condition It was in prior to
the time the Building Sign was affixed thereto, and (ii) all other exterior
signs requested and/or installed by the Tenant. unless specifically exempted by
the Landlord, and restore the area(s) of such sign(s) to match surrounding
conditions;
D. Landlord shall have the right to prohibit any advertising or
identifying sign by the Tenant which, in the landlord's judgment. tends to
impair the reputation of the Building and the building site, and upon written
notice from the Landlord. the Tenant shall immediately discontinue such
advertising or identifying sign, and, at its expense, shall restore the area of
such sign to its pre-existing condition;
E. Landlord reserves the right to relocate existing signs and/or install
such other signs on the Building or the Lot, as Landlord may deem necessary,
appropriate or useful in identifying tenants in the Building or in Landlord's
conduct of the business of operating the Building.
E-2
EXHIBIT F
Cleaning Schedule
-----------------
CLEANING
--------
A. Office Area
Nightly: (Monday through Friday, holidays excepted.)
-------
1. Empty wastepaper baskets, ashtrays and refuse receptacles.
2. Dust sweep hard surface flooring with specially treated cloth. Carpet
sweep carpeted areas and rugs.
4. Hand dust and wipe clean with treated cloths all horizontal surfaces,
including furniture, desk equipment, telephones, windowsills, heat
pump tops within normal reach.
5. Clean and sanitize all drinking fountains.
Weekly:
------
1. Remove finger marks from stairway, elevator and utility closet doors
and light switches.
2. Vacuum carpeted areas and rugs, and shampoo carpeted areas and rugs as
needed.
Bi-Monthly:
----------
1. Wash and wax resilient tile floors (6 times a year).
Quarterly:
---------
1. Do high dusting not reached in daily cleaning to include:
a. Pictures, frames, charts, graphs and similar wall hangings;
b. All vertical surfaces, such as walls, partitions and doors not
reached in nightly cleaning.
B. Lavatories
Nightly:
-------
1. Sweep and wash floors with approved germicidal detergent solution.
F-1
2. Wash and polish all mirrors, powder shelves, dispensers, and
receptacles, bright work, flushometers, piping and toilet seat hinges.
3. Wash both sides of toilet seats, wash basins. bowls, and urinals with
approved germicidal detergent solution.
4. Remove finger marks and smudges from toilet partitions, ventilating
Drills and tile walls.
5. Empty and clean towel and sanitary disposal receptacles; remove waste
to disposal areas.
6. Replenish paper towel, toilet tissue. soap and sanitary napkin
dispensers.
Monthly:
-------
1. Wash partitions and tile walls.
2. Wash all waste receptacles with approved germicidal solution.
C. Window Washing
Quarterly:
---------
1. Wash all exterior window glass, inside and outside surfaces, unless
weather does not permit the safe use of exterior window washing
equipment.
NOTE: Cleaning service of increased frequency other than that specified
above for tenant-occupied areas shall be requested by the tenant
through the Building Manager's office at Tenant's expense.
F-2
EXHIBIT G
---------
Other Services of the Landlord
------------------------------
The Landlord shall furnish elevator service during Building Hours.
The Landlord shall maintain the access roadways and drives and the parking
areas and landscaping immediately adjacent to the Building in which the demised
premises are located.
The Landlord shall furnish hot water and water for ordinary cleaning,
toilet, lavatory and drinking purposes. If the Tenant uses or consumes water
for any other purpose, it shall reimburse the Landlord therefor, and for any
related sewer charge, as reasonably estimated by the Landlord or, at its
election, metered. In the latter event, the Tenant shall pay the cost of the
meter and its installation and maintenance. Such reimbursement shall be made as
and when bills are rendered. All water piping and equipment beyond Building
Standard shall be installed and maintained by the Landlord at the Tenant's
expense.
The Landlord shall furnish Building Standard heat or air-conditioning as
reasonably required for the comfortable occupancy of the Premises (subject to
applicable Governmental regulation of heating and air-conditioning during the
hours of 8:00 AM to 6:00 PM Mondays through Fridays and 8:00 AM to 1:00 PM on
Saturdays; Massachusetts legal holidays excepted.
G-1
EXHIBIT H
Clerk's Certificate
-------------------
1, [name of clerk], Clerk of [name of corporation], hereby certify that
------------- -------------------
the following is a true copy of a resolution of the board of directors of this
corporation adopted at a meeting duly called and held on [date] a quorum being
----
present and acting throughout, and that such resolution has not been revoked,
amended or modified and is in full force and effect:
VOTED: That the President [or other officer] be and is hereby
authorized, singly, to execute and deliver on behalf of this
corporation a lease between Metropolitan Life Insurance Company,
as landlord, and this corporation, as tenant, for
approximately _____ rentable square feet of office space in the
landlord's building, located at Two Executive Drive, Chelmsford.
Massachusetts, upon such terms and conditions as the signing
officer shall determine to be necessary or appropriate. The
signature of the President [or refer to other officer as
applicable] thereon shall conclusively evidence its approval by
this vote.
This is to certify further that as of the date hereof ____________________
is the President [or refer to other officer as applicable] of this corporation.
_________________________________
Clerk
Dated: __________________________, 19__
[SEAL]
G-2
EXHIBIT I
Common Area/Demolition Letter
-----------------------------
January 13, 1994
Mr. Xxxx Xxxxxxxx
MetLife
Xxx Xxxxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxx, XX 00000-0000
Dear Xxxx:
this letter summarizes the refurbishment and repairs Adra believes is necessary
for Metropolitan Life to complete in the "common areas" at 2 Executive Drive:
. Repair broken window in Atrium lobby
. Repair blistering plaster in several places on 3/rd/ door Atrium lobby
area
. Replace stained ceiling tiles in Adra's lobby area
. Replace common area lighting and exit signs where necessary
. The glass front to the fire extinguisher across from the restroom on the
3/rd/ floor is broken
. Some of the parking lot curbing is out of place and needs alignment
. There is a leak in the back door near the loading dock
. The carpeting in the common areas (hallways, stairways, lobby,
elevators) needs replacing
. The elevators need refurbishing
. Collars are needed on the sprinkler heads in the 3/rd/ floor atrium area
. The parking lot and walkways need to be relined
. The common areas need repainting
. The exterior lighting outside the main entrance needs
repair/replacement. some of the light fixtures are badly dented, chipped
and some are not functioning.
. Trim in common area (stair, railings, etc.) needs refurbishing
. Planters in lobby need refreshing, new plants, etc.
. Lobby floor needs resealing
. Shipping/receiving area needs refurbishing
H-1
We would appreciate knowing the type and color of the carpeting and wall colors
Met will be using in the common areas so we can coordinate our color schemes
with yours if possible.
The following is a list of the materials we would like to keep from your
demolition:
. 2 ceiling mounted projection screens and controls
. Wire mold in/around building. Landlord to demo and stage in area
. 3-door glass bulletin board
. Speakers in ceiling for emergency/paging
. Doors/frames and existing hardware
. Fire extinguishers
. Some of the ceiling demountable vinyl wall panels to be reused
. Any existing downlights or special lighting
. Any existing special overhead speakers
We assume that the demolition of the 3/rd/ floor will include the following
tasks:
. Demo all walls, carpet, ceiling as highlighted on the existing
conditions drawing
. Remove 18 self contained air conditioning units. 2 units to be
reinstalled
. Remove all voice/data cabling throughout the 3/rd/ floor
. Penetrations in floor to be filled
Please let me know if you have any questions and/or problems with these items.
Sincerely,
Xxxxxxx X. Xxxxxxx
Vice President
Finance & Administration
H-2
EXHIBIT J
Restroom Work Letter
--------------------
January 13, 1994
Mr. Xxxx Xxxxxxxx
MetLife
Xxx Xxxxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxx, XX 00000-0000
Subject: ADA Requirements For Two Executive Drive, Third Floor
Dear Xxxx:
The following is a list of requirements needed for ADA compliance of the
third floor of Two Executive Drive:
. Horn Strobes for ADA compliance 14 @ $ 68.50 = $1,010.00
. Automatic Door Opener for Restrooms 2 @ $1,400.00 = $2,800.00
. Replace One Sink and Counter in Each Restroom 2 @ $1,000.00 = $2,000.00
. Relocate Grab Bar to Meet ADA (two in each restroom) 4 @ $ 100.00 = $ 400.00
. Replace Stall Door Twist Latch with Lever 2 @ $ 100.00 = $ 200.00
. Relocate Toilet in each Restroom from 15.5" to 18" center 2 @ $1,000.00 = $2,000.00*
line from side wall
. Expand Width of Access Toilet Stall from 58" to 60" 2 @ $ 250.00 = $ 500.00*
. TOTAL = $8,910.00
______________
* Estimate
Sincerely,
Xxxxxxx X. Xxxxxxx
Vice President
Finance & Administration
I-1
NOTICE OF LEASE
---------------
Notice is hereby given, pursuant to Massachusetts General Laws,
Chapter 183, Section 4, of the following Lease.
Landlord: Metropolitan Life Insurance Company, a New York
corporation.
Tenant: Adra Systems, Inc., A Delaware corporation.
Date of Execution: March 2, 1994
Description of Premises: 42,297 rentable square feet of space, consisting
of 39,368 rentable square feet of space which is
located on the third floor and 2,929 rentable
square feet of space which is located on the first
floor of the building located at Two Executive
Drive, Chelmsford, Massachusetts, on a lot of land
described on Schedule A, attached hereto.
Term: 120 calendar months, plus the partial month, if
any, immediately following the Commencement Date.
Date of Commencement: Estimated to be August 15, 1994 or such other date
as is set forth in a Memorandum between the
parties to be recorded hereafter.
Rights of Renewal or
Extension: None
Rights of Expansion: Tenant has right of first refusal with respect to
any space available in the Building as described
in Section 3.2 of the Lease.
This Notice of Lease is executed pursuant to the provisions of the Lease,
and is not intended to vary the terms of the Lease.
Executed this 14/th/ day of March, 1994.
LANDLORD: Metropolitan Life Insurance Company
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Title: Assistant Vice President
TENANT: Adra Systems, Inc.
By: /s/ X. X. Xxxxxxx
------------------
Title: Vice President
Finance & Administration
-0-
XXXXX XX XXX XXXX
____________________, ss. March __, 1994
Then personally appeared the above-named _____________________________,
_____________________________ of Metropolitan Life Insurance Company, and
acknowledged the foregoing instrument to be the free act and deed of
Metropolitan Life Insurance Company, before me,
_____________________________________________
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss. March 9, 1994
Then personally appeared the above-named X.X. Xxxxxxx, Vice President of Adra
Systems, Inc., and acknowledged the foregoing instrument to be the free act and
deed of Adra Systems, Inc., before me,
/s/ Xxxxxxxx X. Xxxxxxxx
_____________________________________________
Notary Public
My Commission Expires: 4-21-2000
SCHEDULE A
Legal Description
-----------------
--------------------------------------------------------------------------------
The real property affected by the instrument of which this Schedule A forms
a part consists of those certain parcels of land with all buildings, structures
and improvements now or hereafter situated thereon located in Chelmsford and
Lowell, Middlesex County, Massachusetts more particularly described as follows:
PARCEL 1
--------
A certain parcel of land with all buildings, structures and improvements
now or hereafter situated thereon, located in the City of Lowell, Massachusetts
and the Town of Chelmsford, Massachusetts, being shown as Parcel "B: on a
"Compiled Plan of Land in Chelmsford and Lowell, Massachusetts", prepared for
Interstate Executive Center Associates, c/o Debroth & Fryer. Scale 1" = 100',
dated October 23, 1984, by Xxxxxx X. Xxxx and Associates, Inc., Civil Engineers
and Surveyors, recorded at Plan Book 147, Plan No. 50, Middlesex North Registry
of Deeds, said parcel containing 8.53 acres, more or less.
PARCEL 2
--------
A certain parcel of land with all buildings, structures and improvements
now or hereafter situated thereon located in the Town of Chelmsford,
Massachusetts, being shown as Parcel "C" on the Plan first below referred to and
located on the easterly side of Xxxxxxx Drive, more fully described as follows:
Beginning at the northwesterly corner of the premises, on the easterly side
of Xxxxxxx Drive and the Southwesterly corner of land now or formerly of
XXXXXX;
thence north 76(degrees) 43' 33" east, 100.00 feet to a point;
thence south 10(degrees) 57' 42" east, 40.03 feet to a point;
thence south 13(degrees) 53' 47" east, 24.85 feet to a point;
thence south 72(degrees) 02' 31" west, 100.00 feet to a point;
thence north 13(degrees) 53' 47" west, 34.70 feet to a point;
thence north 11(degrees) 11' 55" west, 38.34 feet to the point of
beginning.
Said parcel containing 6,882 square feet, more or less and being shown on a
plan recorded at the Middlesex North Registry of Deeds, Plan Book 147, Plan No.
50.
The within premises are conveyed together with the benefit of those certain
easements set forth in a Declaration of Easements dated January 17, 1984,
recorded with said Deeds, Book 2690, Page 464 and as shown on a Plan entitled
"Plan of Land in Chelmsford and Lowell prepared for
-2-
Interstate Executive Center Assoc. c/o Debroth Fryer" dated December 30, 1983
and recorded with said Deeds in Plan Book 142, Plan 45, including without
limitation, an Access Way Easement and Drainage Easement, Parking Easement B and
a Drainage Easement located on Parcel A.
