EXHIBIT 10.10
OFFICE LEASE
THIS LEASE made as of the 27th day of December, 1996, between 000
Xxxxxxxx Xxxxxx Associates Trust, Massachusetts Business Trust ("Landlord") and
Corechange LLC, a Delaware limited liability company whose address 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000 ("Tenant").
WITNESSETH:
ARTICLE 1
PREMISES AND TERM
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
that certain space known as Suite 1890 ("Premises") described or shown on
Exhibit A attached hereto, in the building known as the 000 Xxxxxxxx Xxxxxx
("Building") located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000 ("Property", as
further described in Article 25), subject to the provisions herein contained.
The term ("Term") of this Lease shall commence on the 1st day of March, 1997
("Commencement Date"), and end on the 28th day of February, 2002 ("Expiration
Date'), unless sooner terminated as provided herein. The Commencement Date and
Expiration Date shall be subject to adjustment as provided in Article 4.
Landlord and Tenant agree that for purposes of this Lease the rentable area of
the Premises is 5,879 square feet and the rentable area of the Property is
348,901 square feet.
ARTICLE 2
BASE RENT
Tenant shall pay Landlord monthly Base Rent of Fourteen Thousand Nine
Hundred and, Forty-Two Dollars and 46/100 ($14,942.46), in advance on or before
the first day of each calendar month during the Term, provided, however no Base
Rent shall be due with respect to the fifteen (15) days after the Commencement
Date, but Base Rent for any partial month after the Commencement Date for which
Rent is payable shall be paid on the first day of the Term. If the Term
commences on a day other than the first day of a calendar month, or ends on a
day other than the last day if a calendar month, then the Base Rent for such
month shall be prorated on the basis of 1/30th of the monthly Base Rent for each
day of such month.
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ARTICLE 3
ADDITIONAL RENT
(A) TAXES. Tenant shall pay Landlord an amount equal to Tenant's
Prorata Share of Taxes in excess of the amount of Taxes paid by Landlord during
the fiscal year 1997 ("Base Tax Year"). The terms "Taxes" and "Tenant's Prorata
Share" shall have the meanings specified therefor in Article 25.
(B) OPERATING EXPENSES. Tenant shall pay Landlord an amount equal to
Tenant's Prorata Share of Operating Expenses in excess of the amount of
Operating Expenses paid by Landlord during the calendar year 1997 ("Base Expense
Year"). The terms "Operating Expenses" and "Tenant's Prorata Share" shall have
the meanings specified therefor in Article 25.
(C) Intentionally Omitted.
(D) MANNER OF PAYMENT. Taxes and Operating Expenses shall be paid in
the following manner:
(i) Landlord may reasonably estimate in advance the amounts Tenant
shall owe for Taxes and Operating Expenses for any full or partial calendar year
of the Term. In such event, Tenant shall pay such estimated amounts, or monthly
basis, on or before the first day of each calendar month, together with Tenant's
payment of Base Rent. Such estimate may be reasonably adjusted from time to time
by Landlord.
(ii) Within 120 days after the end of each calendar year, or as soon
thereafter as practicable, Landlord shall provide a statement (the "Statement")
to Tenant showing: (a) the amount of actual Taxes and Operating Expenses for
such calendar year, with a listing of amounts for major categories of Operating
Expenses, and such amounts for the Base Years, (b) any amount paid by Tenant
towards Taxes and Operating Expenses during such calendar year on an estimated
basis and (c) any revised estimate of Tenant's obligations for Taxes and
Operating Expenses for the current calendar year.
(iii) If the Statement shows that Tenant's estimated payments were less
than Tenant's actual obligations for Taxes and Operating Expenses for such year,
Tenant shall pay the difference. If the Statement shows an increase in Tenant's
estimated payments for the current calendar year, Tenant shall pay the
difference between the new and former estimates, for the period from January 1
of the current calendar year through the month in which the Statement is sent.
Tenant shall make such payments within thirty (30) days after Landlord sends the
Statement.
(iv) If the Statement shows that Tenant's estimated payments exceeded
Tenants actual obligations for Taxes and Operating Expenses, Tenant shall
receive a credit for the difference against payments of Rent next due. If the
Term shall have expired and no further Rent shall be due, Tenant shall receive a
refund of such difference, within thirty (30) days after Landlord sends the
Statement.
(v) Intentionally Omitted.
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(vi) So long as Tenant's obligations hereunder are not materially
adversely affected thereby, Landlord reserves the right to reasonably change,
from time to time, the manner or timing of the foregoing payments. In lieu of
providing one Statement covering Taxes or Operating Expenses, Landlord may
provide separate statements, at the same or different times. No delay by
Landlord in providing the Statement (or separate statements) shall be deemed a
default by Landlord or a waiver of Landlord's right to require payment of
Tenant's obligations for actual or estimated Taxes or Operating Expenses. In no
event shall a decrease in Taxes or Operating Expenses below the Base Year
amounts ever decrease the monthly Base Rent, or give rise to a credit in favor
of Tenant.
(E) PRORATION. If the Term commences other than on January 1, or ends
other than on December 31, Tenant's obligations to pay estimated and actual
amounts towards Taxes and Operating Expenses for such first or final calendar
years shall be prorated to reflect the portion of such years included in the
Term. Such proration shall be made by multiplying the total estimated or actual
(as the case may be) Taxes and Operating Expenses, for such calendar years, as
well as the Base Year amounts, by a fraction, the numerator of which shall be
the number of days of the Term during such calendar year, and the denominator of
which shall be 365.
(F) LANDLORD'S RECORDS. Landlord shall maintain records respecting
Taxes and Operating Expenses and determine the same in accordance with sound
accounting and management practices, consistently applied. Although this Lease
contemplates the computation of Taxes and Operating Expenses on a cash basis,
Landlord shall make reasonable and appropriate accrual adjustments to ensure
that each calendar year, including the Base Years, includes substantially the
same recurring items. Landlord reserves the right to change to a full accrual
system of accounting so long as the same is consistently applied and Tenant's
obligations are not materially adversely affected. Tenant or its representative
shall have the right to examine such records upon reasonable prior notice
specifying such records Tenant desires to examine, during normal business hours
at the place or places where such records are normally kept by sending such
notice no later than forty-five (45) days following the furnishing of the
Statement. Tenant may take exception to matters included in Taxes or Operating
Expenses, or Landlord's computation of Tenant's Prorata Share of either, by
sending notice specifying such exception and the reasons therefor to Landlord no
later than thirty (30) days after Landlord makes such records available for
examination. Such Statement shall be considered final, except as to matters to
which exception is taken after examination of Landlord's records in the
foregoing manner and within the foregoing times. Tenant acknowledges that
Landlord's ability to budget and incur expenses depends on the finality of such
Statement, and accordingly agrees that time is of the essence of this Paragraph.
If Tenant takes exception to any matter contained in the Statement as provided
herein, Landlord shall refer the matter to an independent certified public
accountant, whose certification as to the proper amount shall be final and
conclusive as between Landlord and Tenant. Tenant shall promptly pay the cost of
such certification unless such certification determines that Tenant was
overbilled by more than 2%. Pending resolution of any such exceptions in the
foregoing manner, Tenant shall continue paying Tenant's Prorata Share of Taxes
and Operating Expenses in the amounts determined by Landlord, subject to
adjustment after any such exceptions are so resolved.
(G) RENT AND OTHER CHARGES. Base Rent, Taxes, Operating Expenses, OPI
Escalation Amounts, and other amounts which Tenant is or becomes obligated to
pay Landlord
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under this Lease or other agreement entered in connection herewith, are
sometimes herein referred to collectively as "Rent," and all remedies applicable
to the nonpayment of Rent shall be applicable thereto. Rent shall be paid at any
office maintained by Landlord or its agent at the Property, or at such other
place as Landlord may designate.
ARTICLE 4
COMMENCEMENT OF TERM
The Commencement Date set forth in Article I shall be delayed and Rent
shall be abated to the extent that Landlord fails: (i) to substantially complete
any improvements to the Premises required to be performed by Landlord under any
separate agreement signed by both parties, or (ii) to deliver possession of the
Premises for any other reason including but not limited to holding over by prior
occupants, except to the extent that Tenant, its contractors, agents or
employees in any way contribute to either such failures. If Landlord so fails
for a thirty (30) day initial grace period, Tenant shall have the right to
terminate this Lease by written notice to Landlord any time thereafter up until
Landlord substantially completes any such improvements and delivers the Premises
to Tenant. Any such delay in the Commencement Date shall not subject Landlord to
liability for loss or damage resulting therefrom, and Tenant's sole recourse
with respect thereto shall be the abatement of Rent and right to terminate this
Lease described above. Upon any such termination, Landlord and Tenant shall be
entirely relieved of their obligations hereunder, and any Security Deposit and
Rent payments shall be returned to Tenant. If the Commencement Date is delayed,
the Expiration Date shall not be similarly extended, unless Landlord shall so
elect (in which case, the parties shall confirm the same in writing). During any
period that Tenant shall be permitted to enter the Premises prior to the
Commencement Date other than to occupy the same (e.g., to perform alterations or
improvements), Tenant shall comply with all terms and provisions of this Lease,
except those provisions requiring the payment of Rent. Tenant shall be permitted
to enter the Premises during the period of Landlord's construction after
Landlord has given Tenant notice that Landlord's Work has been substantially
completed or completed to the point at which Tenant's occupancy will not affect
the completion of Landlord's Work and notwithstanding the fact that Tenant so
enters the Premises or a portion thereof prior to the Commencement Date for the
purpose of occupying the same, Rent shall not commence on such date in the event
Landlord's notice is given to Tenant after January 1, 1997, the Commencement
Date shall be delayed and the Expiration Date shall be extended by the number of
days between January 1, 1997 and the date on which such notice is given to
Tenant.
ARTICLE 5
CONDITION OF PREMISES
Tenant has inspected the Premises, Property, Systems and Equipment (as
defined in Article 25), or has had an opportunity to do so, and agrees to accept
the same "as is" without any agreements, representations, understandings or
obligations on the part of Landlord to perform any alterations, repairs or
improvements except as expressly provided in any separate agreement that may be
signed by the parties.
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ARTICLE 6
USE AND RULES
Tenant shall use the Premises for offices and no other purpose
whatsoever, in compliance with all applicable Laws, and without disturbing or
interfering with any other tenant or occupant of the Property. Tenant shall not
use the Premises in any manner so as to cause a cancellation of Landlord's
Insurance policies, or an increase in the premiums thereunder. Tenant shall
comply with all rules set forth in Rider One attached hereto (the "Rules").
Landlord shall have the right to reasonably amend such Rules and supplement the
same with other reasonable Rules (not expressly inconsistent with this Lease)
relating to the Property, or the promotion of safety, care, cleanliness or good
order therein, and all such amendments or new Rules shall be binding upon Tenant
after five (5) days notice thereof to Tenant. All Rules shall be applied on a
non-discriminatory basis, but nothing herein shall be construed to give Tenant
or any other Person (as defined in Article 25) any claim, demand or cause of
action against Landlord arising out of the violation of such Rules by any other
tenant, occupant, or visitor of the property, or out of the enforcement or
waiver of the Rules by Landlord in any particular instance.
ARTICLE 7
SERVICES AND UTILITIES
Landlord shall provide the following services and utilities (the cost
of which shall be included in Operating Expenses unless otherwise stated herein
or in any separate rider hereto):
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(A) Electricity for standard office lighting fixtures, and equipment
and accessories customary for offices (up to 280 hours per month) where: (1) the
connected electrical load of all of the same does not exceed an average of 4
xxxxx per square foot of the Premises (or such lesser amount as may be
available, based on the safe and lawful capacity of the existing electrical
circuit(s) and facilities serving the Premises), (2) the electricity will be at
nominal 120 volts, single phase (or 110 volts, depending on available service in
the Building), and (3) the safe and lawful capacity of the existing electrical
circuit(s) serving the Premises is not exceeded.
(B) Heat and air-conditioning to provide a temperature required, in
Landlord's reasonable opinion and in accordance with applicable Law, for
occupancy of the Premises under normal business operations, from 8:00 a.m. until
6:00 p.m. Monday through Friday, except on Holidays (as defined in Article 25).
Landlord shall not be responsible for inadequate air-conditioning or ventilation
to the extent the same occurs because Tenant uses any item of equipment
consuming more than 500 xxxxx at rated capacity without providing adequate
air-conditioning and ventilation therefor.
(C) Water for drinking, lavatory and toilet purposes at those points of
supply provided for nonexclusive general use of other tenants at the Property.
(D) Customary office cleaning and trash removal service Monday through
Friday or Sunday through Thursday in and about the Premises.
(E) Operatorless passenger elevator service (if the Property has such
equipment serving the Premises) and freight elevator service (if the Property
has such equipment serving the Premises, and subject to scheduling by Landlord)
in common with Landlord and other tenants and their contractors, agents and
visitors.
(F) Landlord shall seek to provide such extra utilities or services as
Tenant may from time to time request, if the same are reasonable and feasible
for Landlord to provide and do not involve modifications or additions to the
Property or existing Systems and Equipment (as defined in Article 25), and if
Landlord shall receive Tenant's request within a reasonable period prior to the
time such extra utilities or services are required. Landlord may comply with
written or oral requests by any officer or employee of Tenant, unless Tenant
shall notify Landlord of, or Landlord shall request, the names of authorized
individuals (up to 3 for each floor on which the Premises are located) and
procedures for written requests. Tenant shall, for such extra utilities or
services, pay such charges as Landlord shall from time to time reasonably
establish. All charges for such extra utilities or services shall be due at the
same time as the installment of Base Rent with which the same are billed, or if
billed separately, shall be due within twenty (20) days after such billing.
Landlord may install and operate meters or any other reasonable system
for monitoring or estimating any services or utilities used by Tenant in excess
of those required to be provided by Landlord under this Article (including a
system for Landlord's engineer to reasonably estimate any such excess usage). If
such system indicates such excess services or utilities, Tenant shall pay
Landlord's reasonable charges for installing and operating such system and any
supplementary air-conditioning, ventilation, heat, electrical or other systems
or equipment (or
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adjustments or modifications to the existing Systems and Equipment), and
Landlord's reasonable charges for such amount of excess services or utilities
used by Tenant.
Landlord does not warrant that any services or utilities will be free
from shortages, failures, variations, or interruptions caused by repairs,
maintenance, replacements, improvements, alterations, changes of service,
strikes, lockouts, labor controversies, accidents, inability to obtain services,
fuel, steam, water or supplies, governmental requirements or requests, or other
causes beyond Landlord's reasonable control. None of the same shall be deemed an
eviction or disturbance of Tenant's use and possession of the Premises or any
part thereof, or render Landlord liable to Tenant for abatement of Rent, or
relieve Tenant from performance of Tenant's obligations under this Lease.
Landlord in no event shall be liable for damages by reason of loss of profits,
business interruption or other consequential damages. Notwithstanding the
foregoing, if, due to the unavailability of a service or utility by reason other
than casualty, Tenant cannot operate its business from the Premises for ten (10)
business days, then Rent shall xxxxx after such tenth business day until Tenant
is able to operate its business from the Premises.
ARTICLE 8
ALTERATIONS AND LIENS
Tenant shall make no additions, changes, alterations or improvements
(the "Work") to the Premises or the systems and Equipment (as defined in Article
25) pertaining to the Premises without the prior written consent of Landlord.
Landlord may impose reasonable requirements as a condition of such consent
including without limitation the submission of plans and specifications for
Landlord's prior written approval, obtaining necessary permits, posting bonds,
obtaining insurance, prior approval of contractors, subcontractors and
suppliers, prior receipt of copies of all contracts and subcontracts, contractor
and subcontractor lien waivers, affidavits listing all contractors,
subcontractors and suppliers, use of union labor (if Landlord uses union labor),
affidavits from engineers acceptable to Landlord stating that the Work will not
adversely affect the Systems and Equipment or the structure of the Property, and
requirements as to the manner and times in which such Work shall be done. All
Work shall be performed in a good and workmanlike manner and all materials used
shall be of a quality comparable to or better than those in the Premises and
Property and shall be in accordance with plans and specifications and performing
any supervision of the Work. If Landlord consents or supervises, the same shall
not be deemed a warranty as to the adequacy of the design , workmanship or
quality of material, and Landlord hereby expressly disclaims and responsibility
or liability for the same. Landlord shall under no circumstances have any
obligation to repair, maintain or replace any portion of the Work.
Tenant shall keep the Property and Premises free from any mechanic's,
materialman's or similar liens or other such encumbrances in connection with any
Work on or respecting the Premises not performed by or at the request of
Landlord, and shall indemnify and hold Landlord harmless from and against any
claims, liabilities, judgments, or cost (including attorneys' fees) arising out
of the same or in connection therewith. Tenant shall give Landlord notice at
least twenty (20) days prior to the commencement of any Work on the Premises (or
such additional time as may be necessary under applicable Laws), to afford
Landlord the opportunity of posting
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and recording appropriate notices of nor responsibility. Tenant shall remove any
such lien or encumbrance by bond or otherwise within thirty (30) days after
written notice by Landlord, and if Tenant shall fail to do so, Landlord may pay
the amount necessary to remove such lien or encumbrance, without being
responsible for investigating the validity thereof. The amount so paid shall be
deemed additional Rent under this Lease payable upon demand, without limitation
as to other remedies available to Landlord under this Lease. Nothing contained
in this Lease shall authorize Tenant to do any act which shall subject
Landlord's title to the Property or Premises to any liens or encumbrances
whether claimed by operation of law or express or implied contract. Any claim to
a lien or encumbrance upon the Property or Premises arising in connection with
any Work on or respecting the Premises not performed by or at the request of
Landlord shall be null and void, or at Landlord's option shall attach only
against Tenant's interest in the Premises and shall in all respects be
subordinate to Landlord's title to the Property and Premises.
ARTICLE 9
REPAIRS
Except for customary cleaning and trash removal provided by Landlord
under Article 7, and damage covered under Article 10, Tenant shall keep the
Premises in good and sanitary condition, working order and repair (including
without limitation, carpet, wall-covering, doors, plumbing and other fixtures,
equipment, alterations and improvements whether installed by Landlord or
Tenant). In the event that any repairs, maintenance or replacements are
required, Tenant shall promptly arrange for the same either through Landlord for
such reasonable charges as Landlord may from time to time establish, or such
contractors as Landlord generally uses at the Property or such other contractors
as Landlord shall first approve in writing, and in a first class, workmanlike
manner approved by Landlord in advance in writing. If Tenant does not promptly
make such arrangements, Landlord may, but need not, make such repairs,
maintenance and replacements, and the costs paid or incurred by Landlord
therefor shall be reimbursed by Tenant promptly after request by Landlord.
Tenant shall indemnify Landlord and pay for any repairs, maintenance and
replacements to areas of the Property outside the Premises, caused, in whole or
in part, as a result of moving any furniture, fixtures, or other property to or
from the Premises, or by Tenant or its employees, agents, contractors, or
visitors (notwithstanding anything to the contrary contained in this Lease).
Except as provided in the preceding sentence, or for damage covered under
Article 10, Landlord shall keep the common areas of the Property in good and
sanitary condition, working order and repair (the cost of which shall be
included in Operating Expenses, as described in Article 25, except as limited
therein).
ARTICLE 10
CASUALTY DAMAGE
If the Premises or any common areas of the Property providing access
thereto shall be damaged by fire or other casualty, Landlord shall use available
insurance proceeds to restore the same. Such restoration shall be to
substantially the condition prior to the casualty, except for modifications
required by zoning and building codes and other Laws or by any Holder (as
defined In Article 25), any other modifications to the common areas deemed
desirable by
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Landlord (provided access to the Premises is not materially impaired), and
except that Landlord shall not be required to repair or replace any of Tenant's
furniture, furnishings, fixtures or equipment, or any alterations or
improvements in excess of any work performed or paid for by Landlord under any
separate agreement signed by the parties in connection herewith. Landlord shall
not be liable for any inconvenience or annoyance to Tenant or its visitors, or
injury to Tenant's business resulting in any way from such damage or the repair
thereof. However, Landlord shall allow Tenant a proportionate abatement of Rent
during the time and to the extent the Premises are unfit for occupancy for the
purposes permitted under this Lease and not occupied by Tenant as a result
thereof. Notwithstanding the foregoing to the contrary, Landlord may elect to
terminate this Lease by notifying Tenant in writing of such termination within
sixty (60) days after the date of damage (such termination notice to include a
termination date providing at least ninety (90) days for Tenant to vacate the
Premises), if the Property shall be materially damaged by Tenant or its
employees or agents, or if the Property shall be damaged by fire or other
casualty or cause such that: (a) repairs to the Premises and access thereto
cannot reasonably be completed within 120 days after the casualty without the
payment of overtime or other premiums, (b) more than 25% of the premises is
affected by the damage, and fewer than 24 months remain in the Term, or any
material damage occurs to the Premises during the last, 12 months of the Term,
(c).any Holder (as defined in Article 25) shall require that the insurance
proceeds or any portions thereof be used to retire the Mortgage debt (or shall
terminate the ground lease, as the case may be), or the damage is not fully
covered Landlord's insurance policies, or (d) the cost of the repairs,
alterations, restoration or improvement work would exceed 25% of the replacement
value of the Building, or the nature of such work would make termination of this
Lease necessary or convenient. Tenant may elect to terminate this Lease by
notifying Landlord in writing of such termination if the Property shall be
damaged by fire or other casualty or cause such that repairs to the Premises and
access thereto cannot reasonably be completed within 120 days after the casualty
or if in fact repairs to the Premises and access thereto are not in fact
completed within 120 days after the casualty, provided Tenant makes such
election within ten (10) days of notice from the Landlord of the estimated date
of completion of such repairs (which notice Landlord shall give not later than
sixty (60) days after the date of such casualty) or within ten (10) days after
the end of such 120-day period if the Premises or such access have not then been
restored, but Tenant's election to terminate shall not be effective in the event
Landlord completes such repairs so that the Premises are usable for Tenant's
purposes and reasonable access thereto is provided within thirty (30) days of
Tenant's election to terminate. Tenant agrees that Landlord's obligation to
restore, and the abatement of Rent provided herein, shall be Tenant's sole
recourse in the event such damage, and waives any other rights Tenant may have
under any applicable Law to terminate the Lease by reason of damage to the
Premises or Property. Tenant acknowledges that this Article represents the
entire agreement between the parties respecting damage to the Premises or
Property.
ARTICLE 11
INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS
Tenant shall maintain during the Term comprehensive (or commercial)
general liability Insurance, with limits of not less than $1,000,000 combined
single limit for personal injury, bodily injury or death, or property damage or
destruction (including loss of use thereof for any one occurrence. Tenant shall
also maintain during the Term worker compensation insurance as
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required by statute, and primary, noncontributory, "all-risk" property damage
Insurance covering Tenant's personal property, business records, fixtures and
equipment, for damage or other loss caused by fire or other casualty or cause
including, but not limited to, vandalism and malicious mischief, theft, water
damage of any type, including sprinkler leakage, bursting or stoppage of pipes,
explosion, business interruption, and other insurable risks in amounts not less
than the full insurable replacement value of such property and full insurable
value of such other Interests of Tenant (subject to reasonable deductible
amounts). Landlord shall, as part of Operating Expenses, maintain during the
Term comprehensive (or commercial) general liability Insurance, with limits of
not less than $1,000,000 combined single limit for personal injury, bodily
injury or death, or property damage or destruction (including loss of use
thereof) for any one occurrence. Landlord shall also, as part of Operating
Expenses, maintain during the Term worker compensation insurance as required by
statute, and primary, non-contributory, extended coverage or "all-risk" property
damage Insurance. In an amount equal to at least ninety percent (90%) of the
full insurable replacement value of the Property (exclusive of the costs of
excavation, foundations and footings, and such risks required to be covered by
Tenant's insurance, and subject to reasonable deductible amounts), or such other
amount necessary to prevent Landlord from being a co-insured, and such other
coverage as Landlord shall deem appropriate or that may be required by any
Holder (as defined in Article 25).
Tenant shall provide Landlord with certificates evidencing such
coverage (and, with respect to liability coverage, showing Landlord, Xxxxxxx
Properties Ltd. and Xxxxxxx Properties of Massachusetts Ltd. as additional
insureds) prior to the Commencement Date, which shall state that such insurance
coverage may not be changed or cancelled without at least twenty (20) days'
prior written notice to Landlord, and shall provide renewal certificates to
Landlord at least twenty (20) days prior to expiration of such policies.
Landlord may periodically, but not more often than every five years, require
that Tenant reasonably increase the aforementioned coverage. Except as provided
to the contrary herein, any insurance carried by Landlord or Tenant shall be for
the sole benefit of the party carrying such insurance. Any insurance policies
hereunder may be "blanket policies." All insurance required hereunder shall be
provided by responsible insurers and Tenant's insurer shall be reasonably
acceptable to Landlord. By this Article, Landlord and Tenant intend that their
respective property loss risks shall be borne by responsible insurance carriers
to the extent above provided, and Landlord and Tenant hereby agree to lock
solely to, and seek recovery only from, their respective insurance carriers. In
the event of a property loss to the extent that such coverage is agreed to be
provided hereunder. The parties each hereby waive all rights and claims against
each other for such losses, and waive all rights of subrogation of their
respective insurers, provided such waiver of subrogation shall not affect the
right of the insured to recover thereunder. The parties agree that their
respective insurance policies are now, or shall be, endorsed such that said
waiver of subrogation shall not affect the right of the insured to recover
thereunder, so long as no material additional premium is charged therefore.
ARTICLE 12
CONDEMNATION
If the whole or any material part of the Premises or Property shall be
taken by power of eminent domain or condemned by any competent authority for any
public or quasi-public use or purpose, or if any adjacent property or street
shall be so taken or condemned, or reconfigured or
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vacated by such authority in such manner as to require the use, construction or
remodeling of any part of the Premises or Property, or if Landlord shall grant a
deed or other instrument in lieu of such taking by eminent domain or
condemnation, Landlord shall have the option to terminate this Lease upon ninety
(90) days notice, provided such notice is given no later than 180 days after the
date of such taking, condemnation, configuration, vacation, deed or other
instrument. Tenant shall have reciprocal termination rights if the whole or any
material part of the Premises is permanently taken, or if access to the Premises
is permanently materially impaired. Landlord shall be entitled to receive the
entire award or payment in connection therewith, except that Tenant shall have
the right to file any separate claim available to Tenant for any taking of
Tenant's personal property and fixtures belonging to Tenant and removable by
Tenant upon expiration of the Term, and for moving expenses (so long as such
claim does not diminish the award available to Landlord or any Holder, and such
claim is payable separately to Tenant.) All Rent shall be apportioned as of the
date of such termination, or the date of such taking, whichever shall first
occur. If any part of the Premises shall be taken, and this Lease shall not be
so terminated, the Rent shall be proportionately abated.
ARTICLE 13
RETURN OF POSSESSION
At the expiration or earlier termination of this Lease or Tenant's
right of possession, Tenant shall surrender possession of the Premises in the
condition required under Article 9, ordinary wear and tear, fire and other
casualty excepted, and shall surrender all keys, any key cards, and any parking
stickers or cards, to Landlord, and advise Landlord as to the combination of any
looks or vaults then remaining in the Premises, and shall remove all trade
fixtures and personal property. All improvements, fixtures and other items in or
upon the Premises (except trade fixtures and personal property belonging to
Tenant), whether installed by Tenant or Landlord, shall be Landlord's property
and shall remain upon the Premises, all without compensation, allowance or
credit to Tenant. However, if prior to such termination or within ten (10) days
thereafter Landlord so directs by notice, Tenant shall promptly remove such of
the foregoing items as are designated in such notice and restore the Premises to
the condition prior to the installation of such items; provided, Landlord shall
not require removal of customary office improvements installed pursuant to any
separate agreement signed by both parties in connection with entering this Lease
(except as expressly provided to the contrary therein), or installed by Tenant
with Landlord's written approval (except as expressly required by Landlord in
connection with granting such approval). If Tenant shall fail to perform any
repairs or restoration, or fall to remove any items from the Premises required
hereunder, Landlord may do so, and Tenant shall pay Landlord the cost thereof
upon demand. All property removed from the Premises by Landlord pursuant to any
provisions of this Lease or any law may be handled or stored by Landlord at
Tenant's expense, and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. All property not removed from the Premises
or retaken from storage by Tenant within thirty (30) days after expiration or
earlier termination of this Lease or Tenant's right to possession, shall at
Landlord's option be conclusively deemed to have been conveyed by Tenant to
Landlord as if by xxxx of sale without payment by Landlord. Unless prohibited by
applicable Law, Landlord shall have a lien against such property for the costs
incurred in removing and storing the same.
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ARTICLE 14
HOLDING OVER
Unless Landlord expressly agrees otherwise in writing, Tenant shall pay
Landlord 150% of the amount of Rent then applicable (or the highest amount
permitted by Law, whichever shall be less) prorated on per them basis for each
day Tenant shall retain possession of the Premises or any part thereof after
expiration or earlier termination of this Lease, together with all damages
sustained by Landlord on account thereof. The foregoing provisions shall not
serve as permission for Tenant to hold-over, nor serve to extend the Term
(although Tenant shall remain bound to comply, with all provisions of this Lease
until Tenant vacates the Premises, and shall be subject to the provisions of
Article 13). Notwithstanding the foregoing to the contrary, at any time before,
or after expiration or earlier termination of the Lease, Landlord may serve
notice advising Tenant of the amount of Rent and other terms required, should
Tenant desire to enter a month-to-month tenancy (and if Tenant shall hold over
more than one full calendar month after such notice, Tenant shall thereafter be
deemed a month-to-month tenant, on the terms and provisions of this Lease then
in effect, as modified by Landlord's notice, and except that Tenant shall not be
entitled to any renewal or expansion rights contained in this Lease or any
amendments hereto).
ARTICLE 15
NO WAIVER
No provision of this Lease will be deemed waived by either party unless
expressly waived In writing signed by the waiving party. No waiver shall be
implied by delay or any other act or omission of either party. No waiver by
either party of any provision of this Lease shall be deemed a waiver of such
provision with respect to any subsequent matter relating to such provision, and
Landlord's consent or approval respecting any action by Tenant shall not
constitute a waiver of the requirement for obtaining Landlord's consent or
approval respecting any subsequent action. Acceptance of Rent by Landlord shall
not constitute a waiver of any breach by Tenant of any term or provision of this
Lease. No acceptance of a lesser amount than the Rent herein stipulated shall be
deemed a waiver of Landlord's right to receive the full amount due, nor shall
any endorsement or statement on any check or payment or any letter accompanying
such check or payment be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right o recover the
full amount due. The acceptance of Rent or of the performance of any other term
or provision from any person other than Tenant, including any Transferee, shall
not constitute a waiver of Landlord's right to approve any transfer.
ARTICLE 16
ATTORNEYS' FEES AND JURY TRIAL
In the event of any litigation between the parties, the prevailing
party shall be entitled to obtain, as part of the judgment, all reasonable
attorneys' fees, costs and expenses incurred in connection with such litigation,
except as may be limited by applicable law. In the interest of
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obtaining a speedier and less costly hearing of any dispute, the parties hereby
each irrevocably waive the right to trial by jury.
ARTICLE 17
PERSONAL PROPERTY TAXES, RENT TAXES AND OTHER TAXES
Tenant shall pay prior to delinquency all taxes, charges or other
governmental impositions assessed against levied upon Tenant's fixtures,
furnishings, equipment and personal property located In the Premises, and any
Work to the Premises under Article 8. Whenever possible, Tenant shall cause all
such items to be assessed and billed separately for the property of Landlord. In
the event any such items shall be assessed and billed with the property of
Landlord, Tenant shall pay Landlord its share of such taxes, charges or other
governmental impositions within thirty (30) days after Landlord delivers a
statement and a copy of the assessment or other documentation showing the amount
of such imposition applicable to Tenant's property. Tenant shall pay any rent
tax or sales tax, service tax, transfer tax or value added tax, any other
applicable tax on the Rent or services herein or otherwise respecting this
Lease.
ARTICLE 18
REASONABLE APPROVALS
Whenever Landlord's approval or consent is expressly required under
this Lease (including Article 21) or any other agreement between the parties,
Landlord shall not unreasonably withhold or delay such approval or consent
(reasonableness shall be a condition to Landlord's enforcement of such consent
or approval requirement, and not a covenant), except for matters affecting the
structure, safety or security of the Property, or the appearance of the Property
from any common or public areas.
ARTICLE 19
SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION
This Lease is subject and subordinate to all Mortgages (as defined in
Article 25) now or hereafter placed upon the Property, and all other
encumbrances and matters of public record applicable to the Property. If any
foreclosure proceedings are initiated by any Holder or a deed in lieu is granted
(or if any ground lease is terminated), Tenant agrees, upon written request of
any such Holder or any purchaser at foreclosure sale, to attorn and pay Rent to
such party and to execute and deliver any instruments necessary or appropriate
to evidence or effectuate such attornment (provided such Holder or purchaser
shall agree to accept this Lease and not disturb Tenant's occupancy, so long as
Tenant does not default and fail to cure within the time permitted hereunder).
However, in the event of attornment, no Holder shall be: (i) liable for any act
or omission of Landlord, or subject to any offsets or defenses which Tenant
might have against Landlord (prior to such Holder becoming Landlord under such
attornment), (ii) liable for any security deposit or bound by any prepaid Rent
not actually received by such Holder, or (iii) bound by any future modification
of this Lease not consented to by such Holder. Any Holder (as defined in Article
25) may elect to make this Lease prior to the lien of its Mortgage, by written
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notice to Tenant, and it the Holder of any prior Mortgage shall require, this
Lease shall be prior to any subordinate Mortgage. Tenant agrees to give any
Holder by certified mail, return receipt requested, a copy of any notice of
default served by Tenant upon Landlord, provided that prior to such notice
Tenant has been notified in writing (by way of service on Tenant of a copy of an
assignment of leases, or otherwise) of the address of such Holder. Tenant
further agrees that if Landlord shall have failed to cure such default within
the times permitted Landlord for cure under this Lease, any such Holder whose
address has been provided to Tenant shall have an additional period of thirty
(30) days in which to cure (or such additional time as may be required due to
causes beyond such Holder's control, including time to obtain possession of the
Property by power of sale or judicial action). Tenant shall execute such
documentation as Landlord may reasonably request from time to time, in order to
confirm the matters set forth in this Article in recordable form.
ARTICLE 20
ESTOPPEL CERTIFICATE
Tenant shall from time to time, within twenty (20) days after written
request from Landlord, execute, acknowledge and deliver a statement (i)
certifying that this Lease is unmodified and in full force and effect or, if
modified, stating the nature of such modification and certifying that this Lease
as so modified, is in full force and effect (or if this Lease is claimed not to
be in force and effect, specifying the ground therefor) and any dates to which
the Rent has been paid in advance, and the amount of any Security Deposit, (ii)
acknowledging that there are not, to Tenants knowledge, any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if any are claimed,
and (iii) certifying such other matters as Landlord may reasonably request, or
as may be requested by Landlord's current or prospective Holders, insurance
carriers, auditors, and prospective purchasers. Any such statement may be relied
upon by any such parties. If Tenant shall fail to execute and return such
statement within the time required herein, Tenant shall be deemed to have agreed
with the matters set forth therein. Landlord shall from time to time, within
twenty (20) days after written request from Tenant, execute, acknowledge and
deliver a statement (i) certifying that this Lease is unmodified and in full
force and effect or, if modified, stating the nature of such modification and
certifying that this Lease as so modified, is in full force and effect (or if
this Lease is claimed not to be in force and effect, specifying the ground
therefor) and any dates to which the Rent has been paid in advance, and the
amount of any Security Deposit, (ii) acknowledging that there are not, to
Landlord's knowledge, any uncured defaults on the part of Tenant hereunder, or
specifying such defaults if any are claimed, and (iii) certifying such other
matters as Tenant may reasonably request.
ARTICLE 21
ASSIGNMENT AND SUBLETTING
(A) TRANSFERS. Tenant shall not without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, as further described
below: (i) assign, mortgage, pledge, hypothecate, encumber, or permit an lien to
attach to, or otherwise transfer, this Lease or any Interest hereunder, by
operation of law or otherwise, (ii) sublet the Promises or any part
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thereof, or (iii) permit the use of the Premises by any Persons (as defined in
Article 25) other than Tenant and its employees (all of the foregoing are
hereinafter sometimes referred to collectively as "Transfers" and any Person to
whom any Transfer is made or sought to be made is hereinafter sometimes referred
to as a "Transferee"). If Tenant shall desire Landlord's consent to any
Transfer, Tenant shall notify Landlord in writing, which notice shall include:
(a) the proposed effective date (which shall not be less than 30 nor more than
180 days after Tenant's notice), (b) the portion of the Premises to be
Transferred (herein called the "Subject Space"), (c) the terms of the proposed
Transfer and the consideration therefor, the name and address of the proposed
Transferee, and a copy of all documentation pertaining to the proposed Transfer,
and (d) current financial statements of the proposed Transferee certified by an
officer, partner or owner thereof, and any other Information to enable Landlord
to determine the financial responsibility, character, and reputation of the
proposed Transferee, nature of such Transferee's business and proposed use of
the Subject Space, and such other information as landlord may reasonably
require. Notwithstanding the foregoing, no prior written consent of Landlord
shall be necessary with respect to any to any Transfer to an entity controlling,
controlled by or under common control with Tenant or the Transfer to an entity,
which immediately after such Transfer shall have a net worth equal to or greater
than that of Tenant immediately prior to such Transfer, in connection with the
acquisition by such entity of substantially all of the stock or assets of the
Tenant such that the business conducted by the Tenant prior to the Transfer will
be conducted by the acquiring entity; but in the event of any such Transfer with
respect to which no consent is required, Tenant shall, prior to such Transfer,
notify Landlord thereof and provide the information set forth in clauses (a) and
(c) of the immediately preceding sentence. Any Transfer made without complying
with this Article shall, at Landlord's option, be null, void and of no effect,
or shall constitute a Default under this Lease. Whether or not Landlord shall
grant consent, Tenant shall pay $300.00 towards Landlord's review and processing
expenses, as well as any reasonable legal fees incurred by Landlord, within
thirty (30) days after written request by Landlord.
(B) APPROVAL. Landlord will not unreasonably withhold its consent (as
provided in Article 18) to any proposed Transfer of the Subject Space to the
Transferee on the terms specified in Tenant's notice. The parties hereby agree
that it shall be reasonable under this Lease and under any applicable Law for
Landlord to withhold consent to any proposed Transfer where one or more of the
following applies (without limitation as to other reasonable grounds for
withholding consent): (i) the Transferee is of a character or reputation or
engaged in a business which is not consistent with the quality of the Property,
or would be a significantly less prestigious occupant of the Property than
Tenant, (ii) the Transferee intends to use the Subject Space for purposes which
are not permitted under this Lease, (iii) the Subject Space is not regular in
shape with appropriate means of ingress and egress suitable for normal renting
purposes, (iv) the Transferee is either a government (or agency or
instrumentality thereof) or an occupant of the Property, (v) the proposed
Transferee does not have a reasonable financial condition in relation to the
obligations to be assumed in connection with the Transfer, or (vi) Tenant has
committed and failed to cure a Default at the time Tenant requests consent to
the proposed Transfer.
(C) TRANSFER PREMIUM. If Landlord consents to a Transfer, and as a
condition thereto which the parties hereby agree is reasonable, Tenant shall pay
Landlord fifty percent (50%) of any Transfer Premium derived by Tenant from such
Transfer. "Transfer Premium"
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shall mean all rent, additional rent or other consideration paid by such
Transferee in excess of the Rent payable by Tenant under this Lease (on a
monthly basis during the Term, and on a per rentable square foot basis, if less
than all of the Promises is transferred), after deducting the reasonable
expenses incurred by Tenant for any changes, alterations and improvements to the
Premises, any other economic concessions or services provided to the Transferee,
and any customary brokerage commissions paid in connection with the Transfer. If
part of the consideration for such Transfer shall be payable other than in cash,
Landlord's share of such non-cash consideration shall be in such form as is
reasonably satisfactory to Landlord. The percentage of the Transfer Premium due
Landlord hereunder shall be paid within ten (10) days after Tenant receives any
Transfer Premium from the Transferee.
(D) RECAPTURE. Notwithstanding anything to the contrary contained in
this Article, Landlord shall have the option, by, giving written notice to
Tenant within thirty (30) days after receipt of Tenant's notice of any proposed
Transfer, to recapture the Subject Space. Such recapture notice shall cancel and
terminate this Lease with respect to the Subject Space as of the date stated in
Tenant's notice as the effective date of the proposed Transfer (or at Landlord's
option shall cause the Transfer to be made to Landlord or its agent, in which
case the parties shall execute the Transfer documentation promptly thereafter).
If this Lease shall be cancelled with respect to less than the entire Premises,
the Rent reserved herein shall be prorated on the basis of the number of
rentable square feet retained by Tenant in proportion to the number of rentable
square feet contained in the Premises, this Lease as so amended shall continue
thereafter in full force and effect, and upon request of either party, the
parties shall execute written confirmation of the same.
(E) TERMS OF CONSENT. If Landlord consent to a Transfer: (a) the terms
and conditions of this Lease, including among other things, Tenant's liability
for the Subject Space, shall in no way be deemed to have been waived or
modified, (b) such consent shall not be deemed consent to any further Transfer
by either Tenant or a Transferee, (c) Tenant shall deliver to Landlord promptly
after execution, an original executed copy of all documentation pertaining to
the Transfer' in form reasonably acceptable to Landlord, and (d) Tenant shall
furnish upon Landlord's request a complete statement, certified by an
independent certified public accountant, or Tenant's chief financial officer,
setting forth in detail the computation of any Transfer Premium Tenant has
derived and shall derive from such Transfer, Landlord or its authorized
representatives shall have the right at all reasonable times to audit the books,
records and papers of Tenant relating to any Transfer and shall have the right
to make copies thereof. If the Transfer Premium respecting any Transfer shall be
found understated, Tenant shall within thirty (30) days after demand pay the
deficiency, and if understated by more than 2%, Tenant shall pay Landlord's
costs of such audit. Any sublease hereunder shall be subordinate and subject to
the provisions of this Lease, and if this Lease shall be terminated during the
term of any sublease, Landlord shall have the right to: (i) treat such sublease
as cancelled and repossess the Subject Space by any lawful means, or (ii)
require that such subtenant attorn to and recognize Landlord as its landlord
under any such sublease. If Tenant shall default and fail to cure within the
time permitted for cure under Article 23(A), Landlord Is hereby Irrevocably
authorized, as Tenant's agent and attorney-in-fact, to direct any Transferee to
make all payments under or In connection with the Transfer directly to Landlord
(which Landlord shall apply towards Tenant's obligations under this Lease) until
such Default is cured.
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(F) CERTAIN TRANSFERS. For purposes of this Lease, the term "Transfer"
shall also include (a) If Tenant is a partnership or limited liability company,
the withdrawal or change, voluntary, Involuntary or by operation of law, of a
majority of the partners or members, as the case may be, or a transfer of a
majority of partnership or membership interests, within a twelve month period,
or the dissolution of the partnership or limited liability company, and (b) If
Tenant Is a closely held corporation (i.e., whose stock Is not publicly held and
not traded through an exchange or over the counter), the dissolution, merger,
consolidation or other reorganization of Tenant, or within a twelve month
period: (i) the sale or other transfer of more than an aggregate of 50% of the
voting shares of Tenant (other than to immediate family members by reason of
gift or death) or (ii) the sale, mortgage, hypothecation or pledge of more than
an aggregate of 50% of Tenant's net assets. Notwithstanding any provisions of
this Article 21 to the contrary, however, the term "Transfer" shall not include
a sale of the stock of the corporate successor to the Tenant originally named
herein in connection with a public offering thereof.
ARTICLE 22
RIGHTS RESERVED BY LANDLORD
Except to the extent expressly limited herein, Landlord reserves full
rights to control the Property (which rights may be exercised without subjecting
Landlord to claims for constructive eviction, abatement of Rent, damages or
other claims of any kind), including more particularly, but without limitation,
the following rights:
(A) To change the name or street address of the Property; install and
maintain signs on the exterior and interior of the Property; retain at all
times, and use in appropriate instances, keys to all doors within and into the
Premises: grant to any Person the right to conduct any business or render any
service at the Property, whether or not it is the same or similar to the use
permitted Tenant by this Lease; and have access for Landlord and other tenants
of the Property to any mail chutes located on the Premises according to the
rules of the United States Postal Service.
(B) To enter the Promises at reasonable hours for reasonable purposes,
including inspection and supplying cleaning service or other services to be
provided Tenant hereunder, to show the Premises to current and prospective
mortgage lenders, ground lessors, Insurers, and prospective purchasers, tenants
and brokers, at reasonable hours, and if Tenant shall abandon the Premises at
any time, or shall vacate the same during the last 3 months of the Term, to
decorate, remodel, repair, or alter the Premises.
(C) To limit or prevent access to the Property, shut down elevator
service, activate elevator emergency controls, or otherwise take such action or
preventative measures deemed necessary by Landlord for the safety of tenants or
other occupants of the Property or the protection of the Property and other
property located thereon or therein, in case of fire, invasion, insurrection,
riot, civil disorder, public excitement or other dangerous condition, or threat
thereof.
(D) To decorate and to make alterations, additions and improvements,
structural or otherwise, in or to the Property or any part thereof, and any
adjacent building, structure, parking
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facility, land, street or alley (including without limitation changes and
reductions in corridors, lobbies, parking facilities and other public areas and
the installation of kiosks, planters, sculptures, displays, escalators,
mezzanines, and other structures, facilities, amenities and features therein,
and changes for the purpose of connection with or entrance into or use of the
Property in conjunction with any adjoining or adjacent building or buildings,
now existing or hereafter constructed). In connection with such matters, or with
any other repairs, maintenance, improvements or alterations, in or about the
Property, Landlord may erect scaffolding and other structures reasonably
required, and during such operations may enter upon the Premises and take into
and upon or through the Premises, all materials required to make such repairs,
maintenance, alterations or improvements, and may close public entry ways, other
public areas, restrooms, stairways or corridors.
(E) Intentionally Omitted.
In connection with entering the Premises to exercise any of the
foregoing rights, Landlord shall: (a) provide reasonable advance written or oral
notice to Tenant's on-site manager or other appropriate person (except in
emergencies, or for routine cleaning or other routine matters), and (b) take
reasonable steps to minimize any interference with Tenants business.
ARTICLE 23
LANDLORD'S REMEDIES
(A) DEFAULT. The occurrence of any one or more of the following events
shall constitute a "Default" by Tenant, which if not cured within any applicable
time permitted for cure below, shall give rise to Landlord's remedies set forth
Paragraph (B), below: (i) failure by Tenant to make when due any payment of
Rent, unless such failure is cured within ten (10) days after notice; (ii)
failure by Tenant to observe or perform any of the terms or conditions of this
Lease to be observed or performed by Tenant other than the payment of Rent, or
as provided below, unless such failure is cured within thirty (30) days after
notice, or such shorter period expressly provided elsewhere in this Lease
(provided, if the nature of Tenant's failure is such that more time is
reasonably required in order to cure, Tenant shall not be in default if Tenant
commences to cure within such period and thereafter reasonably seeks to cure
such failure to completion); (iii) failure of Tenant to comply with the Rules,
unless such failure is cured within five (5) days after notice (provided, if the
nature of Tenant's failure is such that more than five (5) days time is
reasonably required in order to cure, Tenant shall not be in Default if Tenant
commences to cure within such period and thereafter reasonably seeks to cure
such failure to completion); (iv) (a) making by Tenant or any guarantor of this
Lease ("Guarantor") of any general assignment for the benefit of creditors, (b)
filing by or against Tenant or any Guarantor of a petition to have Tenant or
such Guarantor adjudged a bankrupt or a petition for reorganization or
arrangement under any Law relating to bankruptcy (unless, in the case of a
petition filed against Tenant or such Guarantor, the same is dismissed within
sixty (60) days), (c) appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located on the Premises or of Tenant's
interest in this Lease where possession is not restored to Tenant within thirty
(30) days, (d) attachment, execution or other judicial seizure of substantially
all of Tenant's assets located on the Premises or of Tenant's interest in this
Lease, (e) Tenant's or any Guarantor's convening of a meeting of its creditors
or any class thereof for the purpose of
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effecting a moratorium upon or composition of its debts, or (f) Tenants or any
Guarantor's insolvency or admission of an inability to pay its debts as they
mature; (v) any material misrepresentation herein, or material misrepresentation
or omission in any financial statements or other materials provided by Tenant or
any Guarantor in connection with negotiating or entering this Lease UT in
connection with any Transfer under Article 21; (vi) cancellation of any guaranty
of this Lease by any Guarantor; (vii) failure by Tenant to cure within any
applicable times permitted thereunder any default under any other lease for
space at the Property or any other buildings owned or managed by Landlord or its
affiliates, now or hereafter entered, by Tenant (and any Default hereunder not
cured within the times permitted for cure herein shall, at Landlord's election,
constitute a default under any such other lease or leases). Failure by Tenant to
comply with the same term or condition of this Lease on three occasions during
any twelve month period shall cause any failure to comply with such term or
condition during the succeeding twelve month period, at Landlord's option, to
constitute an incurable default, if Landlord has given Tenant notice of each
such failure within ton (10) days after each such failure occurs. The notice and
cure periods provided herein are in lieu of, and not in addition to, any notice
and cure periods provided by Law.
(B) REMEDIES. If a Default occurs and is not cured within any
applicable time permitted under Paragraph (A), Landlord shall have the rights
and remedies hereinafter set forth, which shall be distinct, separate and
cumulative with and in addition to any other right or remedy allowed under any
Law or other provisions of this Lease:
(i) Landlord may terminate this Lease, repossess the Premises by
detainer suit, summary proceedings or other lawful means, and recover as damages
a sum of money equal to: (a) any unpaid Rent as of the termination date
including interest at the Default Rate (as defined in Article 25), (b) any
unpaid Rent which would have accrued after the termination date through the time
of award including Interest at the Default Rate, less such loss of Rent that
Tenant proves could have been reasonably avoided, (c) any unpaid Rent which
would have accrued after the time of award during the balance of-the Term, less
such loss of Rent that Tenant proves could be reasonably avoided, and (d) any
other amounts necessary to compensate Landlord for all damages proximately
caused by Tenant's failure to perform its obligations under this Lease,
Including without limitation all Costs of Reletting (as defined in Paragraph F),
for purposes of computing the amount of Rent herein that would have accrued
after the time of award, Tenant's Prorata Share of Taxes and Operating Expenses
shall be projected, based upon the average rate of Increase, if any, in such
Items from the Commencement Date through the time of award.
(ii) If applicable Law permits, Landlord may terminate Tenant's right
of possession and repossess the Premises by detainer suit, summary proceedings
or other lawful means, without terminating this Lease (and if such Law permits,
and Landlord shall not have expressly terminated the Lease in writing, any
termination shall be deemed a termination of Tenant's right of possession only).
In such event, Landlord may recover: (a) any unpaid Rent as of the date
possession is terminated, including Interest at the Default Rate, (b) any unpaid
Rent which accrues during the Term from the date possession is terminated
through the time of award (or which may have accrued from the time of any
earlier award obtained by Landlord through the time of award), including
Interest at the Default Rate, less any Net Re-Letting proceeds (as defined in
Paragraph F) received by Landlord during such period, and less such loss of Rent
that Tenant proves could have been reasonably avoided, and (c) any other amounts
necessary to
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compensate Landlord for all damages proximately caused by Tenant's failure to
perform its obligations under this Lease, including without limitation, all
Costs of Reletting (as defined in Paragraph F). Landlord may bring suits for
such amounts or portions thereof, at any time or times as the same accrue for
after the same have accrued, and no suit or recovery of any portion due
hereunder shall be deemed a waiver of Landlord's right to collect all amounts to
which Landlord is entitled hereunder, nor shall the same be deemed a waiver of
Landlord's right to collect all amounts to which Landlord is entitled hereunder,
nor shall the same serve as any defense to any subsequent suit brought for any
amount not theretofore reduced to judgment.
(C) MITIGATION OF DAMAGES. If Landlord terminates this Lease or
Tenant's right to possession, Landlord shall use reasonable efforts to mitigate
landlord's damages, and Tenant shall be entitled to submit proof of such failure
to mitigate as a defense to Landlord's claims hereunder, if mitigation of
damages by Landlord is required by applicable Law. If Landlord has not
terminated this Lease or Tenant's right to possession, Landlord shall have no
obligation to mitigate, and may permit the Promises to remain vacant or
abandoned; in such case, Tenant may seek to mitigate damages attempting to
sublease the Promises or assign this Lease (subject to Article 21).
(D) SPECIFIC PERFORMANCE, COLLECTION OF RENT AND ACCELERATION. Landlord
shall at all times have the rights and remedies (which shall be cumulative with
each other and cumulative and in addition to those rights and remedies available
under Paragraph (B), above or any Law or other provision of this Lease), without
prior demand or notice except as required by applicable Law: (i) to seek any
declaratory, injunctive or other equitable relief, and specifically enforce the
Lease, or restrain or enjoin a violation or breach of any provision hereof, and
(ii) to xxx for and collect any unpaid Rent which has accrued. Notwithstanding
anything to the contrary contained In this Lease, to the extent not expressly
prohibited by applicable Law, in the event of any Default by Tenant not cured
within any applicable time for cure hereunder, Landlord may terminate this Lease
or Tenant's right to possession and accelerate and declare that all Rent
reserved for the remainder of the Term shall be immediately due and payable (in
which event, Tenant's Prorata Share of Taxes and Operating Expenses for the
remainder of the Term shall be projected based upon the average rate of
increase, if any, in such items from the Commencement Date through the date of
such declaration); provided, Landlord shall, after receiving payment of the same
from Tenant, be obligated to turn over to Tenant any actual Not Re-Letting
Proceeds thereafter received during the remainder of the Term, up to the amount
so received from Tenant pursuant to this provision.
(E) LATE CHARGES AND INTEREST. Tenant shall pay, as additional Rent, a
service charge of Two Hundred Dollars ($200.00) for bookkeeping and
administrative expenses, if Rent is not received within five (5) days after its
due date. In addition, any Rent paid more than five (5) days after due shall
accrue interest from the due date at the Default Rate (as defined in Article
25), until payment is received by Landlord. Such service charge and interest
payments shall not be deemed consent by Landlord to late payments, nor a waiver
of Landlord's right to insist upon timely payments at any time, nor a waiver of
any remedies to which Landlord is entitled as a result of the late payment of
Rent.
(F) CERTAIN DEFINITIONS. "Net Re-Letting Proceeds" shall mean the total
amount of rent and other consideration paid by any Replacement Tenants, less all
Costs of Re-Letting,
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during a given period of time. "Costs of Re-Letting" shall include without
limitation, all reasonable costs and expenses incurred by Landlord for any
repairs, maintenance, changes, alterations and improvements to the Promises,
brokerage commissions, advertising costs, attorneys' fees, any customary free
rent periods or credits, tenant improvement allowances, take-over lease
obligations and other customary, necessary Or appropriate economic incentives
required to enter leases with Replacement Tenants, and costs of collecting rent
from Replacement Tenants. "Replacement Tenants" shall mean any Persons (as
defined in Article 25) to whom Landlord re-lets the Premises or any portion
thereof pursuant to this Article.
(G) OTHER MATTERS. No re-entry or repossession, repairs, changes,
alterations and additions, relenting, acceptance of keys from Tenant, or any
other action or omission by Landlord shall be construed as an election by
Landlord to terminate this Lease or Tenant's right to possession, or accept a
surrender of the Premises, nor shall the same operate to release the Tenant in
whole or in part from any of Tenant's obligations hereunder, unless express
written, notice of such intention is sent by Landlord or its agent to Tenant. To
the fullest extent permitted by Law, all rent and other consideration paid by
any Replacement Tenants shall be applied: first, to the Costs of Re-Letting,
second, to the payment of any Rent theretofore accrued, and the residue, if any,
shall be held by Landlord and applied to the payment of other obligations of
Tenant to Landlord as the same become due (with any remaining residue to be
retained by Landlord). Rent shall be paid without any prior demand or notice
therefor (except as expressly provided herein) and without any deduction,
set-off or counterclaim, or relief from any valuation or appraisement laws.
Landlord may apply payments received from Tenant to any obligations of Tenant
then accrued, without regard to such obligations as may be designated by Tenant.
Landlord shall be under no obligation to observe or perform any provision of
this Lease on its part to be observed or performed which accrue after the date
of any Default by Tenant hereunder not cured within the times permitted
hereunder. The times set forth herein for the curing of Defaults by Tenant are
of the essence of this Lease. Tenant hereby irrevocably waives any right
otherwise available under any Law to redeem or reinstate this Lease.
ARTICLE 24
LANDLORD'S RIGHT TO CURE
If Landlord shall fail to perform any term or provision under this
Lease required to be performed by Landlord, Landlord shall not be deemed to be
in default hereunder nor subject to any claims for damages of any kind, unless
such failure shall have continued for a period of thirty (30) days after written
notice thereof by Tenant; provided, if the nature of Landlord's failure is such
that more than thirty (30) days are reasonably required in order to cure,
Landlord shall not be in default if Landlord commences to cure such failure
within such thirty (30) day period, and thereafter reasonably seeks to cure such
failure to completion. The aforementioned periods of time permitted for Landlord
to cure shall be extended for any period of time during which Landlord is
delayed in, or prevented from, curing due to fire or other casualty, strikes,
lock-outs or other labor troubles, shortages of equipment or materials,
governmental requirements, power shortages or outages, acts or omissions by
Tenant or other Persons, and other causes beyond Landlord's reasonable control.
If Landlord shall fail to cure within the times permitted for cure herein,
Landlord shall be subject to such remedies as may be available to Tenant
(subject to the other provisions of this Lease); provided, in recognition that
Landlord
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must receive timely payments of Rent and operate the Property, Tenant shall have
no right of self-help to perform repairs or any other obligation of Landlord,
and shall have no right to withhold, set-off, or, except as hereinafter
specifically provided, xxxxx Rent. Notwithstanding the foregoing, if, due to a
failure to perform, Tenant cannot operate its business from the Premises for ten
(10) business days, then Rent shall xxxxx for the period Tenant is unable to
operate its business from the Premises.
ARTICLE 25
CAPTIONS, DEFINITIONS AND SEVERABILITY
The captions of the Articles and Paragraphs of this Lease are for
convenience of reference only and shall not be considered or referred to in
resolving questions of interpretation. If any term or provision of this Lease
shall be found invalid, void, illegal, or unenforceable with respect to any
particular Person by a court of competent jurisdiction, it shall not affect,
impair or invalidate any other terms or provisions hereof, or its enforceability
with respect to any other Person, the parties hereto agreeing that they would
have entered into the remaining portion of this Lease notwithstanding the
emission of the portion or portions adjudged invalid, void, illegal, or
unenforceable with respect to such Person.
(A) "Building" shall mean the structure identified in Article I of this
Lease.
(B) Intentionally Omitted.
(C) "Default Rate" shall mean fifteen percent (15%) per annum, or the
highest rate permitted by applicable Law, whichever shall be less.
(D) "Holder" shall mean the holder of any Mortgage at the time in
question, and where such Mortgage is a ground lease, such term shall refer to
the ground lessor.
(E) "Holidays" shall mean all federally observed holidays, including
New Year's Day, President's Day, Memorial Day, Independence Day, Labor Day,
Veterans' Day, Thanksgiving Day, Christmas Day, and to the extent of utilities
or services provided by union members engaged at the Property, such other
holidays observed by such unions.
(F) "Landlord" and "Tenant" shall be applicable to one or more Persons
as the case may be, and the singular shall include the plural, and the neuter
shall include the masculine and feminine, and if there be more than one, the
obligations thereof shall be joint and several. For purposes of any provisions
indemnifying or limiting the liability of Landlord, the term "Landlord" shall
include Landlord's present and future partners, beneficiaries, trustees,
officers, directors, employees, shareholders, principals, agents, affiliates,
successors and assigns.
(G) "Law" shall mean all federal, state, county and local governmental
and municipal laws, statutes, ordinances, rules, regulations, codes, decrees,
orders and other such requirements, applicable equitable remedies and decisions
by courts in cases where such decisions are considered binding precedents in the
state in which the Property is located, and decisions of federal courts applying
the Laws of such State.
(H) "Mortgage" shall mean all mortgages, deeds of trust, ground leases
and other such encumbrances now or hereafter placed upon the Property or
Building, or any part thereof, and all renewals, modifications, consolidations,
replacements or extensions thereof, and all indebtedness now or hereafter
secured thereby and all interest thereon.
(I) "Operating Expenses" shall mean all expenses, costs and amounts
(other than Taxes) of every kind and nature which Landlord shall pay during any
calendar year any portion of which occurs during the Term, because of or in
connection with the ownership, management, repair, maintenance, restoration and
operation of the Property, including without limitation, any amounts paid for:
(a) utilities for the Property, including but not limited to electricity, power,
gas, steam, oil or other fuel, water, sewer, lighting, heating, air conditioning
and ventilating, (b) permits, licenses and certificates necessary to operate,
manage and lease the Property, (c) insurance applicable to the Property, not
limited to the amount of coverage Landlord is required to provide under this
Lease, (d) supplies, tools, equipment and materials used in the operation,
repair and maintenance of the Property, (e) accounting, legal, inspection,
consulting, concierge and other services, (f) any equipment rental (or
installment equipment purchase or equipment financing agreements), or management
agreements (including the cost of any management fee actually paid thereunder
and the fair rental value of any office space provided thereunder, up to
customary and reasonable amounts), (g) wages, salaries and other compensation
and benefits (including the fair value of any parking privileges provided) for
all persons engaged in the
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operation, maintenance or security of the Property, and employees Social
Security taxes, unemployment taxes or insurance, and any other taxes which may
be levied on such wages, salaries, compensation and benefits, (h) payments under
any easement, operating agreement, declaration, restrictive covenant, or
instrument pertaining to the sharing of costs in any planned development, and
(i) operation, repair, and maintenance of all Systems and Equipment and
components thereof (including replacement of components), janitorial service,
alarm and security service, window cleaning, trash removal, elevator
maintenance, cleaning of walks, parking facilities and building walls, removal
of ice and snow, replacement of wall and floor coverings, ceiling tiles and
fixtures in lobbies, corridors, restrooms and other common or public areas or
facilities, maintenance and replacement of shrubs, trees, grass, sod and other
landscaped items, irrigation systems, drainage facilities, fences, curbs, and
walkways, re-paving and re-striping parking facilities, and roof repairs. If the
Property is not fully occupied during all or a portion of any calendar year,
Landlord may, in accordance with sound accounting and management practices,
determine the amount of variable Operating Expenses for such year. If Landlord
makes such an adjustment, Landlord shall make a comparable adjustment for the
Base Expense Year. Notwithstanding the foregoing, Operating Expenses shall not,
however, include:
(i) depreciation, interest and amortization on Mortgages, and other
debt costs or ground lease payments, if any: legal fees in connection with
leasing, tenant disputes or enforcement of leases; real estate brokers' leasing
commissions; improvements or alterations to tenant spaces; the cost of providing
any service directly to and paid directly by, any tenant; any costs expressly
excluded from Operating Expenses elsewhere in this Lease; costs of any items to
the extent Landlord receives reimbursement from insurance proceeds or from a
third party (such proceeds to be deducted from Operating Expenses in the year in
which received); and
(ii) capital expenditures, except those: (a) made primarily to reduce
Operating Expenses, or to comply with any Laws or other governmental
requirements, or (b) for replacements (as opposed to additions or new
improvements) of non-structural items located in the common areas of the
Property required to keep such areas in good condition; provided, all such
permitted capital expenditures (together with reasonable financing charges)
shall be amortized for purposes of this Lease over the shorter of: (i) their
useful lives, or (ii) the period during which the reasonably estimated savings
in Operating Expenses equals the expenditures.
(J) "Person" shall mean an individual, trust, partnership, joint
venture, association, corporation, and any other entity.
(K) "Property" shall mean the Building, and any common or public areas
or Facilities, easements, corridors, lobbies, sidewalks, loading areas,
driveways, landscaped areas, skywalks, parking garages and lots, and any and all
other structures or facilities operated or maintained in connection with or for
the benefit of the Building, and all parcels or tracts of land on which all or
any portion of the Building or any of the other foregoing items are located, and
any fixtures, machinery, equipment, apparatus, Systems and Equipment, furniture
and other personal property located thereon or therein and used in connection
therewith, whether title is held by Landlord or its affiliates. Possession of
areas necessary for utilities, services, safety and operation of the Property,
including the Systems and Equipment (as defined in Article 25), fire stairways,
perimeter walls, space between the finished ceiling of the Premises and the slab
of the floor or roof of the Property thereabove, and the use thereof together
with the right to install, maintain,
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operate, repair and replace the Systems and Equipment, including any of the same
in, through, under or above the Premises in locations that will not materially
interfere with Tenant's use of the Premises, are hereby excepted and reserved by
Landlord, and not demised to Tenant. If the Building shall be part of a complex,
development or group of buildings or structures collectively owned or managed by
Landlord or its affiliates or collectively managed by Landlord's managing agent,
the Property shall, at Landlord's option also be deemed to include such other of
those buildings or structures as Landlord shall from time to time designate, and
shall initially include such buildings and structures (and related facilities
and parcels on which the same are located) as Landlord shall have incorporated
by reference to the total square footage of the Property in Article 1.
(L) "Rent" shall have the meaning specified therefor in Article 3(G).
(M) "Systems and Equipment" shall mean any plant, machinery,
transformers, duct work, cable, wires, and other equipment, facilities, and
systems designed to supply heat, ventilation, air conditioning and humidity or
any other services or utilities, or comprising or serving as any component or
portion of the electrical, gas, steam, plumbing, sprinkler, communications,
alarm, security, or fire/life/safety systems or equipment, or any other
mechanical, electrical, electronic, computer or other systems or equipment for
the Property.
(N) "Taxes" shall mean all federal, state, county, or local
governmental or municipal taxes, fees, charges or other impositions of every
kind and nature, whether general, special, ordinary or extraordinary (including
without limitation, real estate taxes, general and special assessments, transit
taxes, water and sewer rents, taxes based upon the receipt of rent including
gross receipts or sales taxes applicable to the receipt of rent or service or
value added taxes (unless required to be paid by Tenant under Article 17),
personal property taxes imposed upon the fixtures, machinery, equipment,
apparatus, Systems and Equipment, appurtenances, furniture and other personal
property used in connection with the Property which Landlord shall pay during
any calendar year, any portion of which occurs during the Term (without regard
to any different fiscal year used by such government or municipal authority)
because of or in connection with the ownership, leasing and operation of the
Property. Notwithstanding the foregoing, there shall be excluded from Taxes all
excess profits taxes, franchise taxes, gift taxes, capital stock taxes,
inheritance and succession taxes, estate taxes, federal and state income taxes,
and other taxes to the extent applicable to Landlord's general or net income (as
opposed to rents, receipts or income attributable to operations at the
Property). If the method of taxation of real estate prevailing at the time of
execution hereof shall be, or has been altered, so as to cause the whole or any
part of the taxes now, hereafter or heretofore levied, assessed or imposed on
real estate to be levied, assessed or imposed on Landlord, wholly or partially,
as a capital levy or otherwise, or on or measured by the rents received
therefrom, then such new or altered taxes attributable to the Property shall be
included within the term "Taxes," except that the same shall not include any
enhancement of said tax attributable to other income of Landlord. Any expenses
incurred by Landlord in attempting to protest, reduce or minimize Taxes shall be
included in Taxes in the calendar year such expenses are paid. Tax refunds shall
be deducted from Taxes in the year they are received by Landlord, but if such
refund shall relate to taxes paid in a prior year of the Term, and the Lease
shall have expired, Landlord shall mail Tenant's Prorata Share of such net
refund (after deducting expenses and attorneys' fees), up to the amount Tenant
paid towards Taxes during such year, to Tenant's last known address. If Taxes
for the Base Tax Year are
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reduced as the result of protest, or by means of agreement, or as the result of
legal proceedings or otherwise, Landlord may adjust Tenants obligations for
Taxes in all years following the Tax Base Year, and Tenant shall pay Landlord
within 30 days after notice any additional amount required by such adjustment
for any such years or portions thereof that have theretofor occurred. If Taxes
for any period during the Term or any extension thereof, shall be increased
after payment thereof by Landlord, for any reason including without limitation
error or reassessment by applicable governmental or municipal authorities,
Tenant shall pay Landlord upon demand Tenant's Prorata Share of such increased
Taxes. Tenant shall pay increased Taxes whether Taxes are increased as a result
of increase in the assessments or valuation of the Property (whether based on a
sale, change in ownership or refinancing of the Property or otherwise), increase
in the tax rates, reduction or elimination of any rollbacks or other deductions
available under current law, scheduled reductions of any tax abatement, as a
result of the elimination, invalidity or withdrawal of any tax abatement, or for
any other cause whatsoever.
(O) "Tenant's Prorata Share" of Taxes and Operating Expenses shall be
the rentable area of the Premises divided by the rentable area of the Property
on the last day of the calendar year for which Taxes or Operating Expenses are
being determined, excluding any parking facilities. Tenant acknowledges that the
"rentable area of the Premise" under this Lease includes the usable area,
without deduction for columns or projections, multiplied by a load or conversion
factor, to reflect a share of certain areas, which may include lobbies,
corridors, mechanical, utility, janitorial, boiler and service rooms and
closets, restrooms, and other public, common and service areas. Except as
provided expressly to the contrary herein, the "rentable area of the Property"
shall include all rentable area of all space leased or available for lease at
the Property, which Landlord may reasonably re-determine from time to time, to
reflect re-configurations, additions or modifications to the Property. If the
Property or any development of which it is a part, shall contain non-office
uses, Landlord shall have the right to determine in accordance with sound
accounting and management principles, Tenant's Prorata Share of Taxes and
Operating Expenses for only the office portion of the Property or of such
development, in which event, Tenant's Prorata Share shall be based on the ratio
of the rentable area of the Premises to the rentable area of such office
portion. Similarly, if the Property shall contain tenants who do not participate
in all or certain categories of Taxes or Operating Expenses on a prorata basis,
Landlord may exclude the amount of Taxes or Operating Expenses, or such
categories of the same, as the case may be, attributable to such tenants, and
exclude the rentable area of their premises, in computing Tenant's Prorata
Share. If the Property shall be part of or shall include a complex, development
or group of buildings or structures collectively owned or managed by Landlord or
its affiliates or collectively managed by Landlord's managing agent, Landlord
may allocate Taxes and Operating Expenses within such complex, development or
group, and between such buildings and structures and the parcels on which they
are located, in accordance with sound accounting and management principles. In
the alternative, Landlord shall have the right to determine, in accordance with
sound accounting and management principles, Tenant's Prorata Share of Taxes and
Operating Expenses based upon the totals of each of the same for all such
buildings and structures, the land constituting parcels on which the same are
located, and all related facilities, including common areas and easements,
corridors, lobbies, sidewalks, elevators, loading areas, parking facilities and
driveways and other appurtenances and public areas, in which event Tenant's
Prorata Share shall be based on the ratio of the rentable area of the Premises
to the rentable area of all such buildings.
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ARTICLE 26
CONVEYANCE BY LANDLORD AND LIABILITY
In case Landlord or any successor owner of the Property or the Building
shall convey or otherwise dispose of any portion thereof in which the Premises
are located, to another Person (and nothing herein shall be construed to
restrict or prevent such conveyance or disposition), such other Person shall
thereupon be and become landlord hereunder and shall be deemed to have fully
assumed and be liable for all obligations of this Lease to be performed by
Landlord which first arise after the date of conveyance, including the return of
any Security Deposit, and Tenant shall attorn to such other Person, and Landlord
or such successor owner shall, from and after the date of conveyance, be free of
all liabilities and obligations hereunder not then incurred, The liability of
Landlord to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with Landlord's operation, management, leasing, repair,
renovation, alteration, or any other matter relating to the Property or the
Premises, shall be limited to the interest of Landlord in the Property (and the
rental proceeds thereof). Tenant agrees to look solely to Landlord's interest in
the Property (and the rental proceeds thereof) for the recovery of any judgment
against Landlord, and Landlord shall not be personally liable for any such
judgment or deficiency after execution thereon. The limitations of liability
contained in this Article shall apply equally and inure to the benefit of
Landlord's present and future partners, beneficiaries, officers, directors,
trustees, shareholders, agents and employees, and their respective partners,
heirs, successors and assigns. Under no circumstances shall any present or
future general or limited partner of Landlord (if Landlord is a partnership), or
trustee or beneficiary (if Landlord or any partner of Landlord is a trust) have
any liability for the performance of Landlord's obligations under this Lease.
Notwithstanding the foregoing to the contrary, Landlord shall have personal
liability for insured claims, beyond Landlord's interest in the Property (and
rental proceeds thereof), to the extent of Landlord's liability insurance
coverage available for such claims.
ARTICLE 27
INDEMNIFICATION
Except to the extent arising from the intentional or grossly negligent
acts of Landlord or Landlord's agents or employees, Tenant shall defend,
indemnify and hold harmless Landlord from and against any and all claims,
demands, liabilities, damages, judgments, orders, decrees, actions, proceedings,
fines, penalties, costs and expenses, including without limitation, court costs
and attorneys' fees arising from or relating to any loss of life, damage or
injury to person, property or business occurring in or from the Premises, or
caused by or in connection with any violation of this Lease or use of the
Premises or Property by, or any other act or omission of, Tenant, any other
occupant of the Premises, or any of their respective agents, employees,
contractors or guests. Without limiting the generality of the foregoing, Tenant
specifically acknowledges that the indemnity undertaking herein shall apply to
claims in connection with or arising out of any "Work" as described in Article
8, the installation, maintenance, use or removal of any "Lines" located in or
serving the Premises as described in Article 29, and the transportation, use,
storage, maintenance, generation, manufacturing, handling, disposal, release or
discharge of any "Hazardous Material" as described in Article 30 (whether or not
any of such
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matters shall have been theretofore approved by Landlord), except to the extent
that any of the same arises from the intentional or grossly negligent acts of
Landlord or Landlord's agents or employees.
ARTICLE 28
SAFETY AND SECURITY DEVICES, SERVICES AND PROGRAMS
The parties acknowledge that safety and security devices, services and
programs provided by Landlord, if any, while intended to deter crime and ensure
safety, may not in given instances prevent theft or other criminal acts, or
ensure safety of persons or property. The risk that any safety or security
device, service or program may not be effective, or may malfunction, or be
circumvented by a criminal, is assumed by Tenant with respect to Tenant's
property and interests, and Tenant shall obtain insurance coverage to the extent
Tenant desires protection against such criminal acts and other losses, as
further described in Article 11. Tenant agrees to cooperate in any reasonable
safety or security program developed by Landlord or required by Law.
ARTICLE 29
COMMUNICATIONS AND COMPUTER LINES
Tenant may install, maintain, replace, remove or use any communications
or computer wires, cables and related devices (collectively the "Lines") at the
Property in or serving the Premises, provided: (a) Tenant shall obtain
Landlord's prior written consent, use an experienced and qualified contractor
approved in writing by Landlord, and comply with all of the other provisions of
Article 8, (b) any such installation, maintenance, replacement, removal or use
shall comply with all Laws applicable thereto and good work practices, and shall
not interfere with the use of any then existing Lines at the Property, (c) an
acceptable number of spare Lines and space for additional Lines shall be
maintained for existing and future occupants of the Property, as determined in
Landlord's reasonable opinion, (d) if Tenant at any time uses any equipment that
may create an electromagnetic field exceeding the normal insulation ratings of
ordinary twisted pair riser cable or cause radiation higher than normal
background radiation, the Lines therefor (including riser cables) shall be
appropriately insulated to prevent such excessive electromagnetic fields or
radiation, (e) as a condition to permitting the installation of new Lines,
Landlord may require that Tenant remove existing Lines located in or serving the
Promises, (f) Tenants rights shall be subject to the rights of any regulated
telephone company, and (g) Tenant shall pay all costs in connection therewith.
Landlord reserves the right to require that Tenant remove any Lines located in
or serving the Premises which are installed In violation of these provisions, or
which are at any time in violation of any Laws or represent a dangerous or
potentially dangerous condition (whether such Lines were installed by Tenant or
any other party), within three (3) days after written notice.
Landlord may (but shall not have the obligation to): (1) install new
Lines at the Property (11) create additional space for Lines at the Property,
and (111) reasonably direct, monitor and/or supervise the installation,
maintenance, replacement and removal of, the allocation and periodic
re-allocation of available space (if any) for, and the allocation of excess
capacity (if any) on, any
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Lines now or hereafter installed at the Property by Landlord, Tenant or any
other party (but Landlord shall have no right to monitor or control the
information transmitted through such Lines). Such rights shall not be in
limitation of other rights that may be available to Landlord by Law or
otherwise. If Landlord exercises any such rights, Landlord may charge Tenant for
the costs attributable to Tenant, or may Include those costs and all other costs
in operating Expenses under Article 25 (including without limitation, costs for
acquiring and installing Lines and risers to accommodate new Lines and spare
Lines, any associated computerized system and software for maintaining records
of Line connections, and the fees of any consulting engineers and other
experts); provided, any capital expenditures included in Operating Expenses
hereunder shall be amortized (together with reasonable finance charges) over the
period of time prescribed by Article 25.
Notwithstanding anything to the contrary contained in Article 13,
Landlord reserves the right to require that Tenant remove any or all Lines
installed by or for Tenant within or serving the Promises upon termination of
this Lease, provided Landlord notifies Tenant prior to or within thirty (30)
days following such termination. Any Lines not required to be removed pursuant
to this Article shall, at Landlord's option, become the property of Landlord
(without payment by Landlord). If Tenant falls to remove such Lines as required
by Landlord, or violates any other provision of this Article, Landlord may,
after twenty (20) days written notice to Tenant, remove such Lines or remedy
such other violation, at Tenant's expense (without limiting Landlord's other
remedies available under this Lease or applicable Law), Tenant shall not,
without the prior written consent of Landlord in each instance, grant to any
third party a security interest or lien in or on the Lines, and any such
security interest or lien granted without Landlord's written consent shall be
null and void. Except to the extent arising from the intentional or negligent
acts of Landlord or Landlord's agents or employees, Landlord shall have no
liability or damages arising from, and Landlord does not warrant that the
Tenant's use of any Lines will be free from the following collectively called
"Line Problems"): (x) any eavesdropping or wire-tapping by unauthorized parties,
(y) any failure of any .Lines to satisfy Tenant's requirements, or (z) any
shortages, failures, variations, interruptions, disconnections, loss or damage
caused by the installation, maintenance, replacement, use or removal of Lines by
or for other tenants or occupants at the Property, by any failure of the
environmental conditions or the power supply for the Property to conform to any
requirements for the Lines or any associated equipment, or any other problems
associated with any Lines by any other cause. Under no circumstances shall any
Line Problems be deemed an actual or constructive eviction of Tenant, render
Landlord liable to Tenant for abatement of Rent, or relive Tenant from
performance of Tenant's obligations under this Lease. Landlord in no event shall
be liable for damages by reason of loss of profits, business interruption or
other consequential damage arising from any Line Problems.
ARTICLE 30
HAZARDOUS MATERIALS
Tenant shall not transport, use, store, maintain, generate,
manufacture, handle, dispose, release or discharge any "Hazardous Material" (as
defined below) upon or about the Property, or permit Tenant's employees, agents,
contractor and other occupants of the Premises to engage in such activities upon
or about the Property. However, the foregoing provisions shall not prohibit the
transportation to and from, and use, storage, maintenance and handling within,
the Premises of
-28-
substances customarily used in offices (or such other business or activity
expressly permitted to be undertaken in the Premises under Article 6), provided:
(a) such substances shall be used and maintained only in such quantities as are
reasonably necessary for such permitted use of the Premises, strictly in
accordance with applicable Law and the manufacturers' instructions therefor, (b)
such substances shall not be disposed of, released or discharged on the
Property, and shall be transported to and from the Premises in compliance with
all applicable Laws, and as Landlord shall reasonably require, (c) if any
applicable Law or Landlord's trash removal contractor requires that any such
substances be disposed of separately from ordinary trash, Tenant shall make
arrangements at Tenant's expense for such disposal directly with a qualified and
licensed disposal company at a lawful disposal site (subject to scheduling and
approval by Landlord), and shall ensure that disposal occurs frequently enough
to prevent unnecessary storage of such substances in the Premises, and (d) any
remaining such substances shall be completely, properly and lawfully removed
from the Property upon expiration or earlier termination of this Lease.
Tenant shall promptly notify Landlord of: (i) any enforcement, cleanup
or other regulatory action taken or threatened by any governmental or regulatory
authority with respect to the presence of any Hazardous Material on the Premises
or the migration thereof from or to other property, (ii) any demands or claims
made or threatened by any party against Tenant or the Premises relating to any
loss or injury resulting from any Hazardous Material, (iii) any release,
discharge or nonroutine, improper or unlawful disposal or transportation of any
Hazardous Material on or from the Premises, and (iv) any matters where Tenant is
required by Law to give a notice to any governmental or regulatory authority
respecting any Hazardous Material on the Premises. Landlord shall have the right
(but not the obligation) to join and participate as a party in any legal
proceedings or actions affecting the Premises initiated in connection with any
environmental, health or safety Law. At such times as Landlord may reasonably
request, Tenant shall provide Landlord with a written list identifying any
Hazardous Material then used, stored, or maintained upon the Premises, the use
and approximate quantity of each such material, a copy of any material safety
data sheet ("MSDS") issued by the manufacturer therefor, written information
concerning the removal, transportation and disposal of the same, and such other
information as Landlord may reasonably require or as may be required by Law. The
term "Hazardous Material" for purposes hereof shall mean any chemical,
substance, material or waste or component thereof which is now or hereafter
listed, defined or regulated as a hazardous or toxic chemical, substance,
material or waste or component thereof by any federal, state or local governing
or regulatory body having jurisdiction, or which would trigger any employee or
community "right-to-know" requirements adopted by any such body, or for which
any such body has adopted any requirements for the preparation or distribution
of an MSDS.
If any Hazardous Material is released, discharged or disposed of by
Tenant or any other occupant of the Premises, or their employees, agents or
contractors, on or about the Property in violation of the foregoing provisions,
Tenant shall immediately, properly and in compliance with applicable Laws clean
up and remove the Hazardous Material from the Property and any other affected
property and clean or replace any affected personal property (whether or not
owned by Landlord), at Tenant's expense. Such clean up and removal work shall be
subject to Landlord's prior written approval (except in emergencies), and shall
include, without limitation, any testing, investigation, and the preparation and
implementation of any remedial action plan required by any governmental body
having jurisdiction or reasonably required by Landlord. If Tenant shall fall to
comply with the provisions of this Article within five (5) days after written
notice by
-29-
Landlord, or such shorter time as may be required by Law or in order to minimize
any hazard to persons or property, Landlord may (but shall not be obligated to)
arrange for such compliance directly or as Tenants agent through contractors or
other parties selected by Landlord, at Tenant's expense (without limiting
Landlord's other remedies under this Lease or applicable Law). If any Hazardous
Material is released, discharged or disposed of on or about the Property and
such release, discharge or disposal is not caused by Tenant or other occupants
of the Premises, or their employees, agents or contractors, such release,
discharge or disposal shall be deemed casualty damage under Article 10 to the
extent that the Premises or common area is serving the Premises are affected
thereby; in such case, Landlord and Tenant shall have the obligations and rights
respecting such casualty damage provided under Article 10.
ARTICLE 31
MISCELLANEOUS
(A) Each of the terms and provisions of this Lease shall be binding
upon and inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, guardians, custodians, successors and assigns,
subject to the provisions of Article 21 respecting Transfers.
(B) This Lease shall not be recorded by Tenant. However, at Tenant's
request, Landlord will execute a short form of lease, in recordable form and
acceptable to Landlord, sufficient to give notice to third parties of this
Lease, the term thereof and the option hereunder.
(C) This Lease shall be construed in accordance with the Laws of the
state in which the Property is located.
(D) All obligations or rights of either party arising during or
attributable to the period ending upon expiration earlier termination of this
Lease shall survive such expiration or earlier termination.
(E) Landlord agrees that, if Tenant timely pays the Rent and performs
the terms and provisions hereunder and subject to all other terms and provisions
of this Lease, Tenant shall hold and enjoy the Premises during the Term, free of
lawful claims by any Person acting by or through Landlord.
(F) This Lease does not grant any legal rights to "light and air"
outside the Premises nor any particular view or cityscape visible from the
Premises.
(G) If the Commencement Date is delayed in accordance with Article 4
for more than one year, Landlord may declare this Lease null and void, and if
the Commencement Date is so delayed for more than seven years, this Lease shall
thereupon become null and void without further action by either party.
ARTICLE 32
OFFER
The submission and negotiation of this Lease shall not be deemed an offer to
enter the same by Landlord, but the solicitation of such an offer by Tenant.
Tenant agrees that its execution of this Lease constitutes a firm offer to enter
the same which may not be withdrawn for a period of 30 days after delivery to
Landlord (or such other period as may be expressly provided in any other
agreement signed by the parties). During such period and in reliance on the
foregoing, Landlord may, at Landlord's option (and shall, if required by
applicable Law), deposit any security deposit and Rent, and proceed with any
plans, specifications, alterations or improvements, and permit Tenant to enter
the Premises, but such acts shall not be deemed an acceptance of Tenant's offer
to enter this Lease, and such acceptance shall be evidenced only by Landlord
signing and delivering this Lease to Tenant.
-30-
ARTICLE 33
NOTICES
Except as expressly provided to the contrary in this Lease, every
notice or other communication to be given by either party to the other with
respect hereto or to the Premises or Property, shall be in writing and shall not
be effective for any purpose unless the same shall be served personally or by
national air courier service, or United States certified mail, return receipt
requested, postage prepaid, addressed, if to Tenant, at the address first set
forth in the Lease, until the Commencement Date, and thereafter to the Tenant at
the Premises, and if to Landlord, at the address at which the last payment of
Rent was required to be made and to JMB Realty Corporation at 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000, Attn: Legal Department, or such other address
or addresses as Tenant or Landlord may from time to time designate by notice
given as above provided. Every notice or other communication hereunder shall be
deemed to have been given as of the third business day following the date of
such mailing (or as of any earlier date evidenced by a receipt from such
national air courier service or the United States Postal Service) or immediately
if personally delivered. Notices not sent in accordance with the foregoing shall
be of no force or effect until received by the foregoing parties at such
addresses required herein.
ARTICLE 34
REAL ESTATE BROKERS
Tenant represents that Tenant has dealt only with Hunneman Commercial
Company and Xxxxx Xxxxxx LLC (whose commission, if any, shall be paid by
Landlord pursuant to separate agreement) as broker, agent or finder in
connection with this Lease and agrees to indemnify and hold Landlord harmless
from all damages, judgments, liabilities and expenses including reasonable
attorneys' fees) arising from any claims or demands of any other broker, agent
or finder with whom Tenant has dealt (other than brokers engaged by Landlord, if
any, with whom Tenant may have dealt) for any commission or fee alleged to be
due in connection with its participation in the procurement of Tenant or the
negotiation with Tenant of this Lease.
ARTICLE 35
SECURITY DEPOSIT - See Rider Six
-31-
ARTICLE 36
ENTIRE AGREEMENT
This Lease, together with Riders One through Seven and Exhibits A
through B, (WHICH COLLECTIVELY ARI HEREBY INCORPORATED WHERE REFERRED TO HEREIN
AND MADE A PART HEREOF AS THOUGH FULLY SE FORTH), contains all the terms and
provisions between Landlord and Tenant relating to the matters set forth herein
and no prior or contemporaneous agreement or understanding pertaining to the
same shall be of any force or effect, except any such contemporaneous agreement
specifically referring to and modifying this Lease, signed by both parties.
Without limitation as to the generality of the foregoing, Tenant hereby
acknowledges and agrees that Landlord's leasing agents and field personnel are
only authorized to show the Promises and negotiate terms and conditions for
leases subject to Landlord's final approval, and are not authorized to make any
agreements, representations, understandings or obligations, binding upon
Landlord, respecting the condition of the Premises or Property, suitability of
the same for Tenant's business, or any other matter, and no such agreements,
representations, understandings or obligations not expressly contained herein or
in such contemporaneous agreement shall be of any force or effect. Neither this
Lease, nor any Riders or Exhibits referred to above may be modified, except in
writing signed by both parties.
WITNESS; ATTESTATION
(Two for each signatory required if Property LANDLORD:
is in Florida or Ohio):
000 XXXXXXXX XXXXXX BUILDING
/s/ Xxxxx X. Bleimeke Boston, MA
--------------------------------------------
--------------------------------------------
000 XXXXXXXX XXXXXX ASSOCIATES
TRUSTS, a Massachusetts
Business Trust
By:/s/ [illegible]
------------------------------
Trustee
TENANT:
/s/ [illegible] CORECHANGE LLC
--------------------------------------------
By: /s/ Xxx Xxxxxx
-------------------------------------------- ------------------------------
-32-
CERTIFICATE
(if Tenant is a Corporation)
I, _______________, Secretary of ______________________ Tenant, hereby
certify that the officer(s) executing the foregoing Lease on behalf of Tenant
was/were duly authorized to act in his/their capacities as and his/their
action(s) are the action of Tenant.
(Corporate Seal)
-------------------------------------------------------------------------------
Secretary
IF TENANT PAYS FOR ALL ELECTRICITY IN PREMISES, OR FOR SEPARATE HVAC, E.G. BASED
ON SUB-METERS, USE JMB RIDER 112, 112A OR 112B.
-33-
RIDER ONE
RULES
(1) On Saturdays, Sundays and Holidays, and on other days between the
hours of 6:00 P.M. and 8:00 A.M. the following day, or such other hours as
Landlord shall determine from time to time, access to the Property and/or to the
passageways, entrances, exits, shipping areas, halls, corridors, elevators or
stairways and other areas in the Property may be restricted and access gained by
use of a key to the outside doors of the Property, or pursuant to such security
procedures Landlord may from time to time impose. All such areas, and all roofs,
are not for use of the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose presence in the
judgment of Landlord shall be prejudicial to the safety, character, reputation
and interests of the Property and its tenants provided, however, that nothing
herein contained shall be construed to prevent such access to persons with whom
Tenant deals in the normal course of Tenant's business unless such persons are
engaged in activities which are illegal or violate these Rules. No Tenant and no
employee or invitee of Tenant shall enter into areas reserved for the exclusive
use of Landlord, its employees or invitees. Tenant shall keep doors to corridors
and lobbies closed except when persons are entering or leaving.
(2) Tenant shall not paint, display, inscribe, maintain or affix any
sign, placard, picture, advertisement, name, notice, lettering or direction on
any part of the outside or inside of the Property, or on any part of the inside
of the Premises which can be seen from the outside of the Premises, without the
prior consent of Landlord, and then only such name or names or matter and in
such color, size, style, character and material as may be first approved by
Landlord in writing. Landlord shall prescribe the suite number and
identification sign for the Premises (which shall be prepared and installed by
Landlord at Tenant's expense). Landlord reserves the right to remove at Tenant's
expense all matter not so installed or approved without notice to Tenant.
(3) Tenant shall not in any manner use the name of the Property for any
purpose other than that of the business address of the Tenant, or use any
picture or likeness of the Property, in any letterheads, envelopes, circulars,
notices, advertisements, containers or wrapping material without Landlord's
express consent in writing.
(4) Tenant shall not place anything or allow anything to be placed in
the Premises near the glass of any door, partition, wall or window which may be
unsightly from outside the Premises, and Tenant shall not place or permit to be
placed any article of any kind on any window ledge or on the exterior walls.
Blinds, shades, awnings or other forms of inside or outside window ventilators
or similar devices, shall not be placed in or about the outside windows in the
Premises except to the extent, if any, that the character, shape, color,
material and make thereof is first approved by the Landlord.
(5) Furniture, freight and other large or heavy articles, and all other
deliveries may be brought into the Property only at times and in the manner
designated by Landlord, and always at the Tenant's sole responsibility and risk.
Landlord may impose reasonable charges for use of freight elevators after or
before normal business hours. All damage done to the Property by
-1-
moving or maintaining such furniture, freight or articles shall be repaired by
Landlord at Tenant's expense. Landlord may inspect items brought into the
Property or Premises with respect to weight or dangerous nature. Landlord may
require that all furniture, equipment, cartons and similar articles removed from
the Premises or the Property be listed and a removal permit therefor first be
obtained from Landlord. Tenant shall not take or permit to be taken in or out of
other entrances or elevators of the Property, any item normally taken, or which
Landlord otherwise reasonably requires to be taken, in or out through service
doors or on freight elevators. Tenant shall not allow anything to remain in or
obstruct in any way, any lobby, corridor, sidewalk, passageway, entrance, exit,
hall, stairway, shipping area, or other such area. Tenant shall move all
supplies, furniture and equipment as soon as received directly to the Premises,
and shall move all such items and waste (other than waste customarily removed by
Property employees) that are at any time being taken from the Premises directly
to the areas designated for disposal. Any hand-carts used at the Property shall
have rubber wheels.
(6) Tenant shall not overload any floor or part thereof in the
Premises, or Property, including any public corridors or elevators therein
bringing in or removing any large or heavy articles, and Landlord May direct and
control the location of safes and all other heavy articles and require
supplementary supports at Tenants expense of such material and dimensions as
Landlord may deem necessary to properly distribute the weight.
(7) Tenant shall not attach or permit to be attached additional locks
or similar devices to any door or window, change existing, locks or the
mechanism thereof, or make or permit to be made any keys for any door other than
those provided by Landlord. If more than two keys or one lock are desired,
Landlord will provide them upon payment therefor by Tenant. Tenant, upon
termination of its tenancy, shall deliver to the Landlord all keys of offices,
rooms and toilet rooms which have been furnished Tenant or which the Tenant
shall have had made, and in the event of loss of any keys so furnished shall pay
Landlord therefor
(8) If Tenant desires signal, communication, alarm or other utility or
similar service connections installed or changed, Tenant shall not install or
change the same without the prior approval of Landlord, and then only under
Landlord" direction at Tenant's expense.
(9) Tenant shall not obtain for use upon the Premises ice, drinking
water, towel, janitor and other similar services, except from Persons approved
by the Landlord. Any Person engaged by Tenant to provide janitor or other
services shall be subject to direction by the manager or security personnel of
the Property.
(10) The toilet rooms, urinals, wash bowls and other such apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein and it expense of any breakage, stoppage or damage resulting from the
violation of this Rule shall be borne by the Tenant who, or whose employees or
invitees shall have caused it.
(11) The janitorial closets, utility closets, telephone closets, broom
closets, electrical closets, storage closets and other such closets, rooms and
areas shall be used only for the purposes and in the manner designated by
Landlord and may not be used by tenants, or their contractors, agents,
employees, or other parties without Landlord's prior written consent.
-2-
(12) Landlord reserves the right to exclude or expel from the Property
any person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in violation
of any of these Rules. Tenant shall not at any time manufacture, sell, use or
give away, any spirituous, fermented, intoxicating or alcoholic liquors on the
Premises, nor permit any of the same to occur (except in connection with
occasional social or business events conducted in the Premises which do not
violate any Laws nor bother or annoy any other tenants). Tenant shall not at any
time sell, purchase or give away, food in any form by or to any of Tenant's
agents or employees or any other parties on the Premises, nor permit any of the
same to occur (other than in lunch rooms or kitchens for employees as may be
permitted or installed by Landlord, which does not violate any Laws or bother or
annoy any other tenant).
(13) Tenant shall not make any room-to-room canvass to solicit business
or information or to distribute any article or material to or from other tenants
or occupants of the Property and shall not exhibit, sell or offer to sell, use,
rent or exchange any products or services in or from the Premises unless
ordinarily embraced within the Tenant's use of the Premises specified in the
Lease.
(14) Tenant shall not waste electricity, water, heat or air
conditioning or other utilities or services, and agrees to cooperate fully with
Landlord to assure the most effective and energy efficient operation of the
Property and shall not allow the adjustment (except by Landlord's authorized
Property personnel) of any controls. Tenant shall keep corridor doors closed and
shall not open any windows, except that if the air circulation shall not be in
operation, windows which are openable may be opened with Landlord's consent. As
a condition to claiming any deficiency in the air-conditioning or ventilation
services provided by Landlord, Tenant shall close any blinds or drapes in the
Premises to prevent or minimize direct sunlight.
(15) Tenant shall conduct no auction, fire or "going out of business
sale" or Bankruptcy sale in or from the Premises, and such prohibition shall
apply to Tenant's creditors.
(16) Tenant shall cooperate and comply with any reasonable safety or
security programs, including fire drills and air raid drills, and the
appointment of "fire wardens" developed by Landlord for the Property; or
required by Law. Before leaving the Premises unattended, Tenant shall close and
securely lock all doors or other means of entry to the Premises and shut off all
lights and water faucets in the Promises (except heat to the extent necessary to
prevent the freezing or bursting of pipes).
(17) Tenant will comply with all municipal, county, state, federal or
other government laws, statutes, codes, regulations and other requirements,
including without limitation, environmental, health, safety and police
requirements and regulations respecting the Promises, now or hereinafter in
force, at its sole cost, and will not use the Premises for any immoral purposes.
(18) Tenant shall not (i) carry on any business activity or service
except those ordinarily embraced within the permitted use of the Premises
specified in the Lease and more particularly, but without limiting the
generality of the foregoing, shall not (ii) install or operate any internal
combustion engine, boilers, machinery, refrigerating, heating or air
conditioning
-3-
equipment in or about the Premises, (iii) use the Premises for housing, lodging
or sleeping purposes or for the washing of clothes, (iv) place any radio or
television antennae other than inside of the Premises, (v) operate or permit to
be operated any musical or sound producing instrument or device which may be
heard outside the Premises, (vi) use any source of power other than electricity,
(vii) operate any electrical or other device from which may emanate electrical
or other waves which may interfere with or impair radio, television, microwave,
or other broadcasting or reception from or in the Property or elsewhere, (viii)
bring or permit any bicycle or other vehicle, or dog (except in the company of a
blind person or except where specifically permitted) or other animal or bird in
the Property, (ix) make or permit objectionable noise or odor to emanate from
the Premises, (x) do anything in or about the Premises tending to create or
maintain a nuisance or do any act tending to injure the reputation of the
Property, (xi) throw or permit to be thrown or dropped any article from any
window or other opening in the property, (xii) use or permit upon the Premises
anything that will invalidate or increase the rate of insurance on any policies
of insurance now or hereafter carried on the Property or violate the
certificates of occupancy issued for the promises or the Property, (xiii) use
the Premises for any purpose, or permit upon the Premises anything, that may be
dangerous to persons or property (including but not limited to flammable oils,
fluids, paints, chemicals, firearms or any explosive articles or materials) nor
(xiv) do or permit anything to be done upon the Premises in any way tending to
disturb any other tenant at the Property or the occupants of neighboring
property.
(19) If the Property shall now or hereafter contain a building garage,
parking structure of other parking area or facility, the following rules shall
apply in such areas of facilities:
(i) Parking shall be available in areas designated generally for tenant
parking, for such daily or monthly charges as Landlord may establish from time
to time, or as may be provided in any Parking Agreement attached hereto (which,
when signed by both parties as provided therein, shall thereupon become
effective). In all cases, parking for Tenant and its employees and visitors
shall be on a "first come, first served," unassigned basis, with Landlord and
other tenants at the Property, and their employees and visitors, and other
Persons (as defined in Article 25 of the Lease) whom Landlord shall grant the
right or who shall otherwise have the right to use the same, all subject to
these Rules, as the same may be amended or supplemented, and applied on a
non-discriminatory basis, all as further described in Article 6 of the Lease.
Notwithstanding the foregoing to the contrary, Landlord reserves the right to
assign specific spaces, and t reserve spaces for visitors, small cars,
handicapped individuals, and other tenants, visitors of tenants or other Person
and Tenant and its employees and visitors shall not park in any such assigned or
reserved spaces. Landlord may restrict or prohibit full size vans and other
large vehicles.
(ii) In case of any violation of these provisions, Landlord may refuse
to permit the violator to park, and may remove the vehicle owned or driven by
the violator from the Property without liability whatsoever, at such violator's
risk and expense. Landlord reserves the right to close all or a portion of the
parking areas or facilities in order to make repairs or perform maintenance
services, or to alter, modify, re-stripe or renovate the same, or if required by
casualty, strike, condemnation, act of God, Law or governmental requirement, or
any other reason beyond Landlord's reasonable control. In the event access is
denied for any reason, any monthly parking charges shall be abated to the extent
access is denied, as Tenants sole recourse. Tenant acknowledges that such
parking areas or facilities may be operated by an independent
-4-
contractor not affiliated with Landlord, and Tenant acknowledges that in such
event, Landlord shall have no liability for claims arising through acts or
omissions of such independent contractor, it such contractor is reputable,
(iii) Hours shall be 6 A.M. to 8 P.M., Monday through Friday, and 10:00
A.M. to 1:00 P.M. on Saturdays, or such other hours as may be reasonably
established by Landlord or its parking operator from time to time; cars must be
parked entirely within the stall lines, and only small cars may be parked in
areas reserved for small cars; all directional signs and arrows must be
observed; the speed limit shall be 5 miles per hour, spaces reserved for
handicapped parking must be used only by vehicles properly designated; every
xxxxxx is required to park and lock his own car, washing, waxing, cleaning or
servicing of any vehicle is prohibited; parking spaces may be used only for
parking automobiles: parking is prohibited in areas: (a) not striped or
designated for parking, (b) aisles, (c) where "no parking" signs are posted, (d)
on ramps, and (e) loading areas and other specialty designated areas. Delivery
trucks and vehicles shall use only those areas designated therefor.
-0-
XX0 000X (2/89)
Office Lease Rider
Tenant Pays Full Prorata Share
Of All Electricity in Property
RIDER 2
ELECTRICITY CHARGES
Notwithstanding anything to the contrary contained in the Lease, in
addition to the Base Rent and other charges set forth therein, Tenant shall pay
Landlord an amount equal to Tenant's Prorata Share (as such term is defined in
Article 25 of the Lease) of general use electric utility charges incurred at the
Property during the Term, as the same may be extended from time to time. All
such charges shall be payable as additional rent, with the installment of Base
Rent with which the same are billed, or if billed separately, shall be due and
payable within twenty (20) days after such billing. Landlord may reasonably
estimate Tenant's electricity charges in advance, on a monthly, quarterly,
semi-annual, or other reasonable basis; in such case Tenant shall pay the
estimated amount with the installment of Base Rent with which the same is
billed, or if billed separately, within twenty (20) days after such billing, and
Tenant shall continue paying Landlord such estimated amount until Landlord shall
adjust such estimate. In such event, periodically, but not less often than once
each twelve months, Landlord shall compare the amounts on an estimated basis
with the actual charges incurred hereunder, and shall xxxx Tenant for any
additional amount due (which Tenant shall pay within twenty (20) days
thereafter) or shall credit Tenant for any over payment. In recognition that
Tenant will be responsible for paying Tenant's Prorata Share of such electric
utility charges pursuant to the foregoing provisions, no electric utility
charges shall be included in Operating Expenses (as defined in Article 25 of the
Lease). However, if the Property is less than 96% occupied during all or a
portion of any calendar year, Landlord may elect to make an appropriate
adjustment to the electricity charges for such year, employing sound accounting
and management principles, to determine the amount of electricity charges that
would have been incurred had the Property been 95% occupied; and the amount so
determined shall be deemed to have been the amount of electricity charges for
such year. In the event of any inconsistency between the Lease and this Rider,
the latter shall govern and control.
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
Xxxxxx. XX
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST Massachusetts Business Trust
By: /s/ [illegible]
------------------------------------
Trustee
-1-
TENANT:
CORECHANGE, LLC
By: /s/ Xxx Xxxxxx
---------------------------------
-2-
Use With JMB
102 Forms
(7/6/90)
RIDER 3
Notwithstanding anything to the contrary contained in the Lease, the
parties agree that Operating Expenses for the Base Expense Year (herein called
"Base Year Expenses") and for any subsequent year (herein called "Subsequent
Year Expenses") shall be subject to further adjustment by Landlord as follows:
(i) Landlord may exclude from Base Year Expenses capital expenditures
otherwise permitted under Article 25 of the Lease (provided, Landlord shall also
exclude any amortization of such expenditures from Subsequent Year Expenses).
(ii) If Landlord eliminates from any Subsequent Year Expenses a
recurring category of expenses previously included in Base Year Expenses,
Landlord may subtract such category from Base Year Expenses commencing with such
subsequent year.
(iii) It Landlord includes a new recurring category of Subsequent Year
Expenses not previously included in Base Year Expenses, Landlord shall also
include an amount (the "Assumed Base Amount") for such category in Base Year
Expenses commencing in such subsequent year.
(iv) The "Assumed Base Amount" under clause (iii), above, shall be the
annualized amount of expenses for such new category in the first year it is
included reduced by an amount determined in Landlord's good faith opinion.
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
Xxxxxx. XX
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST Massachusetts Business Trust
By: /s/ [illegible]
------------------------------------
Trustee
TENANT:
CORECHANGE, LLC
By: /s/ Xxx Xxxxxx
------------------------------------
-1-
JMB 110A (2/89
Option to Extend
Prevailing Rate Adjustment
(Arbitration)
RIDER 4
Tenant is hereby granted an option to extend the Term for a single
additional period of five (5) consecutive Lease Years ("Extension Period"), on
the same terms and conditions in effect under the Lease immediately prior to the
Extension Period, except that Tenant shall have no further right to extend, and
monthly Base Rent shall be increased to the Prevailing Rental Rate, and Tenant
shall have no further option to extend. The option to extend may be exercised
only by giving Landlord irrevocable and unconditional written notice thereof no
earlier than one year and no later than six months prior to the commencement of
the Extension Period. Said exercise shall, at Landlord's election, be null and
void if Tenant is in default under the Lease beyond applicable grace or cure
periods at the date of said notice or at any time thereafter and prior to
commencement of the Extension Period. The term "Lease Year" herein means each
twelve month annual period, commencing with the first day of the Extension
Period, without regard to calendar years.
"Prevailing Rental Rate" means the average per square foot rental rate
per month for all renewal leases for renewal periods approximately as long as
the Extension Period, executed by tenants for similar uses and lengths of time
for comparable space in the Building during the six (6) months immediately prior
to the date upon which such Prevailing Rental Rate is to become effective, where
such renewal rates were not set by the terms of such leases, subject to
reasonable adjustments for comparable space on more or less desirable floors or
areas of the Property. If no such comparable space has been renewed during such
six (6) month period, the rental rates used for purposes of this provision shall
be adjusted to the amounts Landlord would have used had leases for such
comparable space been renewed. In all cases, such rates shall be determined
without regard to any free rent periods, improvement allowances, take-over lease
obligations, or other economic incentives; however, any such economic incentives
generally provided by Landlord in such comparable renewal leases shall also be
provided to Tenant. In addition, if such comparable leases include bass years,
stop levels, or other provisions respecting taxes or operating expenses, or
include any other economic provisions, such as but not limited to consumer price
provisions, utility reimbursements, or fixed rent increases, the same shall be
included in Tenant's renewal terms.
If the parties are unable to agree on the Prevailing Rental Rate within
sixty (60) days after the commencement of the Extension Period, either party may
request that the Prevailing Rental Rate be determined by arbitration, under the
Commercial Arbitration Rules of the American Arbitration Association then in
effect. Such determination shall be final and binding upon the parties. In
recognition that the Prevailing Rental Rate may not be determined until after
the commencement of the Extension Period, Tenant shall pay, during the Extension
Period until the Prevailing Rental Rate is determined, 100% of the amount of
Rent then in effect (including Base Rent, and all other charges). If the
Prevailing Rental Rate is determined to be greater than such amount, Tenant
shall pay Landlord, within thirty (30) days after written request therefor, the
-1-
difference between the amount required by such determination of the Prevailing
Rental Rate, and the amount of Rent theretofore paid by Tenant during the
Extension Period.
If Tenant shall fall to exercise the option herein provided, said
option shall terminate, and shall be null and void and of no further force and
effect. Tenant's exercise of said option shall not operate to cure any default
by Tenant of any of the terms or provisions in the Lease, nor to extinguish or
impair any rights or remedies of Landlord arising by virtue of such default. If
the Lease or Tenant's right to possession of the Premises shall terminate in any
manner whatsoever before Tenant shall exercise the option herein provided, then
immediately upon such termination, sublease or assignment, the option herein
granted to extend the Term, shall simultaneously terminate and become null and
void. Time is of the essence of this provision.
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
Xxxxxx. XX
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST Massachusetts Business Trust
By: /s/ [illegible]
------------------------------------
Trustee
TENANT:
CORECHANGE, LLC
By: /s/ Xxx Xxxxxx
------------------------------------
-2-
RIDER 5
As set forth in the Lease, monthly Base Rent shall be abated for a
period of 16 days after the Commencement Date ("Abatement Period"). If Tenant
shall default under the Lease and fall to cure within the time permitted for
cure thereunder while Abatement Period is still in effect, the Abatement Period
shall thereupon terminate, and Tenant shall commence paying the Base Rent under
the Lease. In addition, if Tenant shall default under the Lease at any time and
fall to cure within the time permitted for cure thereunder, Tenant shall upon
demand pay Landlord the amount of Base Rent theretofore abated, multiplied by a
fraction, the numerator of which is the number of months then remaining in the
Initial Term at the time of the default, and the denominator of which is the
total number of months in the Initial Term (without limiting Landlord's other
remedies).
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
Xxxxxx. XX
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST Massachusetts Business Trust
By: /s/ [illegible]
------------------------------------
Trustee
TENANT:
CORECHANGE, LLC
By: /s/ Xxx Xxxxxx
------------------------------------
-1-
Declining Amount Security Depot
RIDER 6
As security for Tenant's obligations under this Lease, Tenant is simultaneous
with the execution of this Lease depositing with Landlord an irrevocable standby
letter of credit (i) in favor of Landlord, (ii) in the original face amount of
$100,000, (iii) issued by a banking institution reasonably satisfactory to
Landlord, and (iv) in a form reasonably satisfactory to Landlord; provided,
however, (a) the face amount of the letter of credit may be reduced by $20,000
on the date which is the later to occur of (x) the first anniversary of the
Commencement Date, and (y) five (5) business days after the cure of any and all
defaults which occurred prior to such anniversary of the Commencement Date and
which are in fact cured within applicable cure periods and (b) the then face
amount of the letter of credit may be reduced by $20,000 on (x) each succeeding
anniversary of the Commencement Date after the first anniversary or, if later,
(y) five (5) business days after the cure of any and all defaults which occurred
prior to such anniversary of the Commencement Date and which are in fact cured
within applicable cure periods. The letter of credit shall not be reduced if the
conditions for reducing have not been timely met. The letter of credit shall
automatically renew on each anniversary of the Commencement Date unless not less
than forty-five (45) days prior to renewal, the issuing banking institution
notifies Landlord in writing that the letter of credit will not be renewed, in
which event Landlord shall be entitled to draw the entire face amount of the
letter of credit and to hold the amount so drawn as a security deposit to secure
Tenant's performance under the Lease. Landlord shall have the right from time to
time, without prejudice to any other remedy Landlord may have on account
thereof, to draw down under the letter of credit an amount equal to all or any
portion as Landlord may elect of the face amount of the letter of credit (or to
use amounts held as security after being drawn by reason of failure to renew) to
cure any default of Tenant which has continued beyond applicable periods of
notice and grace under the Lease and to reimburse Landlord for any damages
arising from any default under this Lease on the part of Tenant. Without
limiting the generality of the foregoing, such letter of credit shall provide in
all events that Landlord shall have the right to draw against the face amount
thereof as aforesaid upon the submission to the drawee bank of a written
statement of Landlord or Landlord's agent that it is entitled to draw thereunder
pursuant to the provisions of this Lease, and Landlord shall be entitled by the
terms of such letter of credit to draw thereunder on sight. Tenant shall
promptly after any draw by Landlord against a letter of credit hereunder or a
reduction in the amount held as security hereunder by reason of the application
thereof to cure a default by Tenant deposit with Landlord, to be held as a
security deposit an amount equal to the amount drawn under the letter of credit
or applied so as to provide Landlord with an unreduced amount of security for
Tenant's obligations under the Lease. Landlord shall not be required to keep any
amounts held as a security deposit separate from Landlord's general funds or to
pay interest on any security deposit. Tenant acknowledges and agrees that the
delivery of the letter of credit as aforesaid shall be, if Landlord shall so
elect, a condition precedent to the execution of this Lease by Landlord, or to
the performance by Landlord of any and all of Landlord's obligations under this
Lease if Landlord shall execute this Lease prior to the delivery of the first
such letter of credit as aforesaid. Notwithstanding anything to the contrary
herein contained, in the event that Tenant shall fall to deliver to Landlord the
letter of credit required to be so delivered by the terms hereof or shall fall
to deposit with Landlord as additional security for Tenant's obligations under
the Lease an amount equal to any amount drawn by Landlord under a letter of
credit hereunder
-1-
or applied, then Landlord may treat such failure as a material breach of this
Lease and thereupon, without further notice or demand of any kind to Tenant or
any guarantor of any of Tenants obligations under this Lease or any other
person, Landlord may exercise, at its option, in addition to all other legal or
equitable remedies therefor, any remedies available to Landlord under Article 23
of this Lease, including, without limitation, the right to terminate this Lease.
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
Xxxxxx. XX
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST Massachusetts Business Trust
By: /s/ [illegible]
------------------------------------
Trustee
TENANT:
CORECHANGE, LLC
By: /s/ Xxx Xxxxxx
------------------------------------
-2-
JMB 106 (2/89)
Parking Agreement
RIDER 7
PARKING AGREEMENT
THIS AGREEMENT made as of the _____ day of December, 1996, between 000
Xxxxxxxx Xxxxxx Associates Trust ("Landlord") and Corechange LLC ("Tenant").
(1) The parties hereby acknowledge that they have heretofore entered,
or are contemporaneously herewith lease dated December __, 1996 (the "Lease")
for Premises known as Suite 1890 (the "Premises") located in the property known
as 000 Xxxxxxxx Xxxxxx (the "Property"). In the event of any conflict between
the Lease and this Agreement, the latter shall control.
(2) Landlord hereby grants to Tenant and Persons designated by Tenant a
license to use 2 parking spaces in the Property Garage. The Term of such license
shall commence on the Commencement Date under the Lease and shall continue until
the earlier to occur of the Expiration Date under the Lease, or termination of
the Lease or Tenant's abandonment of the Premises thereunder. During the Term of
this license, Tenant shall pay Landlord the monthly charges established from
time to time by Landlord for parking in the Garage, payable in advance with
Tenant's payment of monthly Base Rent. The initial charge for such spaces is
$275.00, per space, per month, or a total monthly charge of $550.00 for all such
spaces. No deductions from the monthly charge shall be made for days on which
the Garage is not used by Tenant. However, Tenant may reduce the number of
parking spaces hereunder, at any time, by providing at least thirty (30) days
advance written notice to Landlord, accompanied by any key-card, sticker or
other identification or entrance system provided by Landlord or its parking
contractor, such cancellation shall be irrevocable. Tenant may, from time to
time, request additional parking spaces, and if Landlord shall provide the same,
such spaces shall be provided and used on a month-to-month basis, and otherwise
on the foregoing terms and provisions, and such monthly parking charges as
Landlord shall establish from time to time.
(3) Tenant shall at all times comply with all applicable ordinances,
rules, regulations, codes, laws, statutes and requirements of all federal,
state, county and municipal governmental bodies or their subdivisions respecting
the use of the Garage. Landlord reserves the right to adopt, modify and enforce
reasonable Rules governing the use of the Garage from time to time, including
any key-card, sticker or other identification or entrance system, and hours of
operation. The Rules set forth hereinafter are currently in effect. Landlord may
refuse to permit any person who violates such Rules to park in the Garage, and
any violation of the Rules shall subject the car to removal from the Garage.
(4) The parking spaces hereunder shall be provided on an unreserved
"first-come, first-served' basis. Tenant acknowledges that Landlord has or may
arrange for the Garage to be operated by an independent contractor, not
affiliated with Landlord. In such event, Tenant acknowledge that Landlord shall
have no liability for claims arising through acts or omissions of such
independent contractor, if such contractor is reputable. Except for intentional
acts or gross
-1-
negligence, any damage to property or any other items located in the Garage, nor
for any personal injuries or death arising out of any matter relating to the
Garage and in all events, Tenant agrees to look first to its insurance carrier
and to require that Tenant's employees look first to their respective insurance
carriers for payment of any losses sustained in connection with any use of the
Garage. Tenant hereby waives on behalf of its insurance carriers all rights of
subrogation against Landlord or Landlord's agents. Landlord reserves the right
to assign specific spaces, and to reserve spaces for visitors, small cars,
handicapped persons and for other tenants, guests of tenants or other parties,
and Tenant and persons designated by Tenant hereunder shall not park in any such
assigned or reserved spaces. Landlord also reserves the right to close all or
any portion of the Garage in order to make repairs or perform maintenance
services, or to alter, modify, re-stripe or renovate the Garage, or if required
by casualty, strike, condemnation, act of God, governmental law or requirement
or other reason beyond Landlord's reasonable control. In such event, Landlord
shall refund any prepaid parking rent hereunder, prorated on a per them basis.
If, for any other reason, Tenant or persons properly designated by Tenant, shall
be denied access to the Garage, and Tenant or such persons -shall have complied
with this Agreement and this Agreement shall be in effect, Landlord's liability
shall be limited to such parking charges (excluding tickets for parking
violations) incurred by Tenant or such persons in utilizing alternative parking,
which amount Landlord shall Pay upon presentation of documentation supporting
Tenant's claims in connection therewith.
(5) If Tenant shall default under this Agreement, Landlord shall have
the right to remove from the Garage any vehicles hereunder which shall have been
involved or shall have been owned or driven by parties involved in causing such
default, without liability therefor whatsoever. In addition, if Tenant shall
default under this Agreement, Landlord shall have the right to cancel this
Agreement on ten days' written notice, unless within such ten day period, Tenant
cures such default. If Tenant defaults with respect to the same term or
condition under this Agreement more than three times during any twelve month
period, and Landlord notifies Tenant thereof promptly after each such default,
the next default of such term or condition during the succeeding twelve month
period, shall, at Landlord's election, constitute an incurable default. Such
cancellation right shall be cumulative and in addition to any other rights or
remedies available to Landlord at law or in equity, or provided under the Lease
(ALL OF WHICH RIGHTS AND REMEDIES UNDER THE LEASE ARE HEREBY INCORPORATED
HEREIN, AS THOUGH FULLY SET FORTH). Any default by Tenant under the Lease shall
be a default under this Agreement, and any default under this Agreement shall be
a default under the Lease.
-2-
EXHIBIT A
(FLOOR PLAN(S) SHOWING PREMISES CROSS-HATCHED)
[Graphic depicts a floorplan showing the layout of approximately 5,879 rentable
square feet located on the 18th floor of 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx]
-1-
FOR USE WHERE WORKING DRAWINGS DONE
JMB 105A (2/89)
Work Agreement
Landlord Performance
Turn-Key Deal
EXHIBIT "B"
WORK AGREEMENT
THIS AGREEMENT made as of the ____ day of December, 1996, between 000
Xxxxxxxx Xxxxxx Associates Trust ("Landlord") and Corechange LLC ("Tenant").
Reference is made to the lease or tenant expansion agreement dated
December, 1996, (the "Lease") for premises known as Suite(s) 1890 (the
"Premises"), located in the property known as 000 Xxxxxxxx Xxxxxx (the
"Property").
I. THE WORK. The "Work" herein shall consist of the improvements shown
on the plans ("Plans") referenced as follows, and any demolition or preparation
work required in connection therewith: Up to maximum of $11.00 per rental square
foot or $64,669.00.
Name of Architect or Space Planner: Xxxx Xxxxx Associates, Inc./Architect
Address of Architect or Space Planner: 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000
Caption of Plans: ____________________________________________
Number of Sheets: ____________________________________________
Dates of Plans and Revisions: ______________________________________
II. BASIC AGREEMENT. On or before the Commencement Date under the
Lease, Landlord shall substantially complete the Work as described above.
However, Landlord shall not be responsible for delays caused by Tenant or
Tenant's contractors, agents or employees and as further described in Section
111 below and in Article 4 of the Lease.
Landlord shall bear the cost of the Plans (including any engineering
reports, or other studies or tests in connection therewith, but excluding any
furniture planning) and the cost of the Work (including the cost of building
permits and sales tax) except as provided to the contrary herein.
III. DELAYS IN CONSTRUCTION. Subject to outside date set forth in
Article 4 of the Lease, the Commencement Date under the Lease shall be postponed
for each day that Landlord fails to substantially complete the Work thereby as a
result of strikes, acts of God, shortages of materials or labor, governmental
approvals or requirements, the various causes set forth below, or any other
causes beyond Landlord's reasonable control, in such case, the commencement of
Rent shall be similarly postponed, except to the extent that delays occur as a
result of one or more of the following, (collectively called "Tenant Delays");
-1-
(a) Tenant's requests for changes to the Work or Change Orders under
Section V, or otherwise,
(b) Tenant's failure to furnish an amount equal to Landlord's
reasonable estimate of Tenant's Cost (if any) within 10 days, as described in
Section X111 (which shall give Landlord the absolute right to postpone the Work
until such amount is furnished to Landlord),
(c) any upgrades, special work or other non-building standard items, or
items not customarily provided by Landlord to office tenants, to the extent that
the some involve longer lead times, installation times, delays or difficulties
in obtaining building permits, requirements for any governmental approval,
permit or action beyond the issuance of normal building permits (as described in
Section IV),
(d) the performance by Tenant or Tenant's contractors, agents or
employees of any work at or about the Premises or Property, or
(e) any act or omission of Tenant or Tenant's contractors, agents or
employees, or any breach by the Tenant of any provisions contained in this
Agreement or in the Lease, or any failure of Tenant to cooperate with Landlord,
or otherwise act in good faith in order to cause the Work to be designed and
performed in a timely manner.
IV. GOVERNMENTAL APPROVAL OF PLANS. Landlord shall apply foe any normal
building permits required for the Work. If the Plans must be revised in order to
obtain such building permits, Landlord shall promptly notify Tenant. In such
case, Tenant shall promptly arrange for the Plans to be revised to satisfy the
building permit requirements and shall submit the revised Plans to landlord for
approval as a Change Order under Section V. Landlord shall have no obligation to
apply for any zoning, parking or sign code amendments, approvals, permits or
variances, or any other governmental approval, permit or action (except normal
building permits as described above). If any such other matters are required,
Tenant shall promptly seek to satisfy such requirements or revise the Plans to
eliminate such requirements. Delays in substantially completing the Work by the
Commencement Date as a result of requirements for building permits or other
governmental approvals, permits or actions shall affect the commencement Date
and commencement of Rent to the extent provided in Section III (except that any
delays in obtaining normal building permits as a result of errors or omissions
of any space planner or architect selected and regularly used by Landlord in
preparing the Plans shall postpone the commencement of Rent to the extent that
substantial completion of the Work is delayed thereby beyond the Commencement
Date, and Tenant shall not be obligated to bear the cost of Plan revisions to
correct he same, notwithstanding anything to the contrary contained in this
Agreement.
V. CHANGES TO PLANS. If Tenant shall desire any changes, alterations,
or additions to the Plans referenced above, Tenant shall submit a detailed
written request or revised Plans (the "Change Order") to Landlord for approval.
If reasonable and practicable and generally consistent with the Plant theretofor
approved. Landlord shall not unreasonably withhold approval, but all costs in
connection therewith, including without limitation, construction costs, permit
fees, and, any additional plans, drawings and engineering reports or opinions or
other
-2-
studies or tests, or revisions of such existing terms, shall be paid for by
Tenant as a Tenant's Cost under Section XIII, Or as Landlord shall otherwise
reasonably require.
VI. COMPLETION.
A. Landlord shall be deemed to have "substantially completed" the Work
for purposes hereof if Landlord has caused all of the Work to be completed
substantially except for so-called "punchlist items," e.g. minor details of
construction or decoration or mechanical adjustments which do not substantially
interfere with Tenant's occupancy of the Premises, or Tenant's ability to
complete any improvements to the Premises to be made by Tenant, if there is any
dispute as to whether Landlord has substantially completed the Work, the good
faith decision of Landlord's Space Planner shall be final and binding on the
parties.
B. If Landlord notifies Tenant in writing that the Work is
substantially completed, and Tenant falls to object thereto writing within seven
(7) days thereafter specifying in reasonable detail the items of work needed to
be performed in order for substantial completion, Tenant shall be deemed
conclusively to have agreed that the Work is substantially completed, for
purposes of commencing the Commencement Date and Rent under the Lease.
C. Substantial completion shall not prejudice Tenant's rights to
require full completion of any remaining items of Work. However, if Landlord
notifies Tenant in writing that the Work is full completed, and Tenant falls to
object thereto in writing within fifteen (16) days thereafter specifying in
reasonable detail the items of work needed to be completed and the nature of
work needed to complete said items, other than items which are seasonal in
nature and latent defects, with respect to which Tenant shall have a period of
one year in which to notify Landlord of any deficiency in the Work with respect
thereto) Tenant shall be deemed conclusively to have accepted the Work is fully
completed (or such portions thereof as to which Tenant has not so objected).
D. Landlord reserves the right to substitute comparable or better
materials and items for those shown in the Plans, long as they do not materially
and adversely affect the appearance of the Premises.
VII. WORK PERFORMED BY TENANT. Landlord, at Landlord's discretion, may
permit Tenant and Tenant's agents and contractors to enter the Premises prior to
completion of the Work in order to make the Premises ready for Tenant's use and
occupancy. If Landlord permits such entry prior to completion of the Work, then
such permission is conditioned upon Tenant and Tenant's agents, contractors,
workmen, mechanics, suppliers and invitees working in harmony and not
interfering with landlord and Landlord's contractors in doing the Work or with
other tenants and occupants of the Building, at any time such entry shall cause
or threaten to cause such disharmony or interference, landlord shall have the
right withdraw such permission upon twenty-four (24) hours oral or written
notice to Tenant. Tenant agrees that any such entry into the Premises shall be
deemed to be under all of the terms, covenants, conditions and provisions of the
Lease including, without limitation, all insurance requirements), except as the
covenant to pay Rent thereunder, and further fees that Landlord shall not be
liable in any way for any injury, loss or damage which may occur to any items of
work instructed by Tenant or other property of
-3-
Tenant that may be placed in the Premises prior to completion of the Work, be
same being at Tenant's sole risk.
VIII. SIGNAGE. Landlord shall cause signage of building standard
material and design to be-placed on or adjacent to the door of the Premises and
Tenant shall pay the cost thereof to Landlord upon demand. The amount due from
Tenant "Rent" under the Lease. Tenant shall promptly advise Landlord in writing
of the name or names Tenant wishes for said signage. The content of all signage
shall be subject to Landlord's prior approval.
IX. LIABILITY. The parties acknowledge that Landlord is not an
are6itect or engineer, and that the Work will be signed and performed by
independent architects, engineers and contractors. Accordingly, Landlord does
not guarantee warrant that the plans will be free from errors or omissions, nor
that the Work will be free from defects, and Landlord it have no liability
therefor, provided that such architects, engineers and contractors are licensed
and reputable (except provided in Section IV). In the event of such errors,
omissions, or defects, Landlord shall cooperate in any action ant desires to
bring against such parties.
X. [OMITTED]
XI. INCORPORATION INTO LEASE; DEFAULT. THE PARTIES AGREE THAT THE
PROVISIONS OF THIS WORK AGREEMENT ARE HEREBY INCORPORATED BY THIS REFERENCE INTO
THE LEASE FULLY AS THOUH SET FORTH THEREIN. In the event of any express
inconsistencies between the Lease and this Work Agreement, the latter shall
govern and control. Any default by a party hereunder shall constitute a default
by that party under the Lease and ___ party shall be subject to the remedies and
other provisions applicable thereto under the Lease.
XI. UPGRADES OR SPECIAL WORK; TENANT'S COST.
The parties acknowledge that Tenant has selected certain items
included in the Work which are high quality or specialized for Tenant's use.
Accordingly:
(a) [Omitted]
(b) Tenant shall pay balance towards the cost of the Work.
Any amounts that Tenant is required to pay under this Section or any
other provision of this Agreement shall be referred to as "Tenant's Cost"
herein. Tenant's Cost shall be deemed additional "Rent" under the Lease.
Landlord may at any time reasonably estimate Tenant's Cost in advance, in which
case, Tenant shall deposit such estimated amount with Landlord within 10 days
after requested by Landlord. If such estimated amount exceeds the actual amount
of Tenant's Cost, Tenant shall receive a refund of the difference, and if the
actual amount shall exceed the estimated amount, Tenant shall pay the difference
to Landlord within 10 days after requested by Landlord.
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
-0-
Xxxxxx, XX
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST Massachusetts Business Trust
By: /s/ [illegible]
----------------------------------
Trustee
TENANT:
CORECHANGE, LLC
By: /s/ Xxx Xxxxxx
----------------------------------
-5-
RULES
(i) Garage hours shall be 6 A.M. to 8 P.M. or such other hours as Landlord
shall determine from time to time,
(ii) Cars must be parked entirely within the stall lines painted on the
floor, and only small cars may be parks( in areas reserved for small
cars.
(iii) All directional signs and arrows must be observed.
(iv) The speed limit shall be 5 miles per hour.
(v) Spaces reserved for handicapped parking must be used only by vehicles
properly designated.
(vi) Parking is prohibited in all areas not expressly designated for
parking, including without limitation:
a. areas not striped for parking
b. aisles
c. where "no parking" signs are posted
d. ramps
e. loading zones
(vii) Parking stickers, key cards or any other devices or forms of
identification or entry supplied by Landlord shall remain the property
of Landlord. Such devices must be displayed as requested and may not be
mutilated in any manner The serial number of the parking identification
device may not be obliterated. Devices are not transferable and any
device in the possession of an unauthorized holder will be void.
(viii) Monthly fees shall be payable in advance prior to the first day of each
month. Failure to do so will automatically cancel parking privileges
and a charge at the prevailing daily parking rate will be due. No
deductions or allowances from the monthly rate will be made for days on
which the Garage is not used by Tenant or its designees.
(ix) Garage managers or attendants are not authorized to make or allow any
exceptions to these Rules.
(x) Every xxxxxx is required to park and lock his own car.
(xi) Loss or theft of parking identification, key cards or other such
devices must be reported to Landlord or any garage manager immediately.
Any parking devices reported lost or stolen found on any unauthorized
car will be confiscated and the illegal holder will be subject to
prosecution. Lost or stolen devices found by Tenant or its employees
must be reported to the office of the garage immediately.
-1-
(xii) Washing, waxing, cleaning or servicing of any vehicle by the customer
and/or his agents is prohibited. Parking spaces may be used only for
parking automobiles.
(xiii) By signing this Parking Agreement, Tenant agrees to acquaint all
persons to whom Tenant assigns parking space of these Rules.
LANDLORD:
000 XXXXXXXX XXXXXX XXXXXXXX
Xxxxxx. XX
000 XXXXXXXX XXXXXX ASSOCIATES
TRUST Massachusetts Business Trust
By: /s/ [illegible]
----------------------------------
Trustee
TENANT:
CORECHANGE, LLC
By: /s/ Xxx Xxxxxx
----------------------------------
-2-
LEASE AMENDMENT I
TENANT EXPANSION AGREEMENT
THIS AGREEMENT made and entered into as of this 25 day of April 1998,
by between 260 Franklin, Inc. ("Landlord"), and Corechange LLC ("Tenant").
A. Landlord or its predecessor in interest, and Tenant or its
predecessor in interest, have heretofore entered into that certain lease dated
the 27 day of December, 1996 for premises (the "Premises") described as Suite
1890, initially containing approximately 4,918 square feet, in the property
known as 000 Xxxxxxxx Xxxxxx (the "Property") the address of which is 0000
Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000, which lease has heretofore been amended or
assigned by instrument dated Notice of Lease 12/27/96. Estoppel Certificate
12/15/97.
B. Tenant has requested that additional space in the Property
consisting of approximately 4,918 square feet of rentable space shown on Exhibit
A, attached hereto and incorporated herein (the "Expansion Space") be added to
the Premises, and that the Lease be appropriately amended, and Landlord is
willing to do the same, all on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and other good and valuable consideration, the parties do
hereby agree as follows:
1. EXPANSION. Commencing on the 15th day of April, 1998 (the
"Commencement Date"), the Expansion Space shall be added to and become a part of
the Premises, subject to all of the terms and conditions of the Lease currently
in effect, except as expressly modified herein. Expiration for the Expansion
Space 6/30/99. The Commencement Date shall be subject to adjustment as described
in Paragraph 4, below.
2. RENTALS AND OTHER CHARGES. On the Commencement Date, the minimum or
base monthly rent under the Lease-for the Expansion Space shall be $13,114.67.
In addition, on the Commencement Date, all increases in rentals,
additional rent or other charges based c computed on the square footage of the
Premises under the Lease, including without limitation, real estate taxes,
insurance costs, common area maintenance expenses, operating expenses, shall be
adjusted proportionately to reflect the Expansion Space square footage.
The minimum or base rentals and all other charges respecting the
Expansion Space are sometimes herein called the "Expansion Space Rent".
3. Intentionally Omitted.
4. POSSESSION. Tenant has inspected the Expansion Space and agrees to
accept the same "as is" without any agreements, representations, understandings
or obligations an the part of Landlord to perform any alterations, repairs or
improvements except as expressly provided in any separate agreement that may be
signed by the parties in connection herewith. Any construction, alterations or
improvements made to the Expansion Space by Tenant shall be
-1-
subject to Landlord's prior written approval including without limitation,
approval of the plans, specifications, contractors and subcontractors therefor,
and all applicable terms and conditions of the Lease relating to construction,
alterations or improvements of the Premises, and such other reasonable
requirements or conditions as Landlord may impose. During any period that Tenant
shall be permitted to enter the Expansion Space prior to the Commencement date
other than to occupy the same (e.g., to perform alterations or improvements),
Tenant shall comply with all terms and provisions of the Lease, except those
provisions requiring payment of Expansion Space Rent. If Tenant shall be
permitted to enter the Expansion Space prior to the Commencement Date for the
purpose of occupying the same, Expansion Space Rent shall commence on such date;
if Tenant shall commence occupying only a portion of the Expansion Space prior
to the commencement Date, such rent and charges shall be prorated based on the
number of rentable square fee occupied by Tenant.
The Commencement Date shall be delayed and Expansion Space Rent shall
be abated to the extent that Landlord fails: (i) to substantially complete any
improvements to the Expansion Space required to be performed by Landlord under
any separate agreement signed by both parties in connection herewith, or (ii) to
deliver possession of the Expansion Space for any other reason, including but
not limited to holding over by prior occupants, except to the extent that
Tenant, its contractors, agents or employees in any way contribute to either
such failures. If Landlord so fails for a ninety (90) day initial grace period,
or such additional time as may be necessary due to strikes, acts of God,
shortages of labor or materials, governmental requirements, acts or omissions of
Tenant, its contractors, agents or employees, or other causes beyond Landlord's
reasonable control, Tenant shall have the right to terminate this Tenant
Expansion Agreement by written notice to Landlord any time hereafter up until
Landlord substantially completes any such improvements and delivers the
Expansion Space to Tenant. Any such delay in the Commencement Date shall not
subject Landlord to any liability for any loss or damage resulting therefrom,
and Tenant's sole remedy with respect thereto shall be the abatement of
Expansion Space Rent and right to terminate this Agreement described above. Upon
any such termination, landlord and Tenant shall be entirely relieved of their
obligations hereunder and any Additional Security Deposit and Expansion Space
Rent payments shall be returned to Tenant. If the Commencement Date is delayed,
the Expiration Date under the Lease shall not be similarly extended, unless the
parties expressly agree in writing.
5. WHOLE AGREEMENT. This Agreement sets forth the entire Agreement
between the parties with respect to the matters set forth herein. There have
been no additional oral or written representations or agreement! Ns amended
herein, the Lease between the parties shall remain in full force and effect. In
case of an inconsistency between the provisions of the Lease and this Agreement,
the latter provisions shall govern an control. Under no circumstances shall this
Agreement be deemed to grant any right to Tenant to further expand the Premises.
6. GUARANTORS. This Agreement shall be of no force or effect unless and
until accepted by any guarantor of the Lease, who by signing below shall agree
that their guarantee shall apply to the Lease as amended herein unless such
requirement is waived by Landlord in writing.
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7. NOT AN OFFER. Submission of this Agreement by Landlord is not an
offer to enter this Agreement, but , solicitation for such an offer by Tenant,
Landlord shall not be bound by this Agreement until Landlord ha executed and
delivered the same to Tenant.
IN WITNESS WHEREOF, the Landlord and Tenant have duly executed this
Agreement as of the day and year first above written.
WITNESS; ATTESTATION LANDLORD: 260 Franklin, Inc.
(Two for each signatory required
if Property is in Florida or Ohio):
By: /s/ Xxxxxx X. Xxxxx
----------------------------------- ---------------------------------
Its: V.P.
----------------------------------- ---------------------------------
TENANT: Corechange LLC
By: /s/ Xxxx Xxxxxxx
----------------------------------- ---------------------------------
Its: CFO/SR V.P.
----------------------------------- ---------------------------------
By:
----------------------------------- ---------------------------------
Its:
----------------------------------- ---------------------------------
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EXHIBIT A
(FLOOR PLAN(S) SHOWING PREMISES CROSS-HATCHED)
[Graphic depicts a floorplan showing the layout of approximately 4,918 rentable
square feet located on the 19th floor of 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx]
-4-
SECOND AMENDMENT OF LEASE.
SPACE REDUCTION AGREEMENT
THIS AGREEMENT made and entered into as of this _____ day of August,
1998, by and between 260 Franklin, Inc. ("Landlord") and Corechange, Inc.
("Tenant").
A. Landlord or its predecessor in interest, and Tenant or its
predecessor in interest, have heretofore entered into that certain lease dated
the 27th day of December, 1996, for premises described as Space, Store, Suite,
or Unit No. 1890 initially containing approximately 5,879 s.f., increased by
4,918 s.f. by Lease Amendment I square feet (the "Premises"), in the 000
Xxxxxxxx Xxxxxx (the "Building"), the address of which is 000 Xxxxxxxxx Xxxxxx,
Xxxxxx, XX 00000, which lease has heretofore been amended or assigned by
instruments dated April 15, 1998 (collectively, the "Lease").
B. Tenant desires to surrender a portion of the Premises to Landlord
consisting of approximately 710 square feet of space added by Lease Amendment I
and shown on Exhibit A, attached hereto and incorporated herein (the "Reduction
Space"), thereby leaving the balance of the Premises consisting of approximately
10,087 square feet as shown on Exhibit B attached hereto and incorporated herein
(the "Remaining Premises"), and Landlord is willing to accept such surrender on
the terms and provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and other good and valuable consideration, the parties do
hereby agree as follows:
1. SPACE REDUCTION. On the Effective Date (as hereinafter defined), the
Reduction Space shall be subtracted from the Premises, and shall be deemed
surrendered by Tenant to Landlord, and the Lease shall be deemed terminated with
respect thereto: provided, if Tenant shall violate any provision hereof, or if
Tenant's representations herein shall be false or materially misleading,
Landlord shall have the right to declare this Agreement null and void, and to
reinstate the Lease with respect to the Reduction Space, in addition to. and not
in lieu of, any other rights or remedies available to Landlord. Tenant shall
fully comply with all obligations under the Lease respecting the Reduction Space
through the Effective Date, including those provisions relating to the condition
of the Reduction Space, and removal of Tenant's personal property therefrom,
upon termination or expiration of the Lease. If Tenant shall holdover in the
Reduction Space beyond the Effective Date, Tenant shall be liable for rentals
and other charges respecting the Reduction Space equal to twice the amount in
effect under the Lease, prorated on a per them basis, and on 6 per square foot
basis for the Reduction Space. Such holdover amount shall not be in limitation
of Tenant's liability for consequential or other damages arising from Tenant's
holding over nor as permission for Tenant to hold over in the Reduction
Premises. If Landlord shall install a wall demising off the Reduction Space from
the Remaining Premises, Tenant shall promptly reimburse Landlord's costs in
connection therewith, as additional rent under the Lease.
2. EFFECTIVE DATE. The "Effective Date" herein shall be August 13,
1998.
-1-
3. PAYMENTS. Tenant shall continue to pay all rentals and other charges under
the Lease through the Effective Date. Thereafter, Tenant shall pay minimum or
base monthly rent in the amount of $11,221.33 for the Remaining Premises added
by Lease Amendment I.
In addition, all rentals and any other charges based or computed on the
square footage of the Premises, including without limitation, real estate taxes,
insurance costs and operating expenses, shall be reduced proportionately to
reflect the decrease in square footage to 4,208 square feet of the space added
by Lease Amendment I.
If any charges respecting the Reduction Space have not been determined
by the Effective Date, Tenant shall pay Landlord's reasonable estimate of such
charges, subject to adjustment after the actual charges have !en determined. If
the Lease requires payment of so-called "percentage rent", then the so-called
sales base, minimum annual volume, or percentage breakpoint amount shall be
reduced in proportion to the reduction in base or minimum rent hereunder.
4. REPRESENTATIONS. Each part represents to the other that it has full power and
authority to execute this agreement. Tenant represents that it has not made any
assignment, sublease, transfer, conveyance of the Lease or any interest therein
or in the Reduction Space, and further represents that there is not and will not
hereafter be any claim, demand, obligation, liability, action or cause of action
by any other party respecting, relating to or arising out of the Reduction
Space, and agrees to indemnify and hold harmless landlord and its partners,
agents and affiliates from all liabilities, expenses, claims, demands,
judgments, damages or costs arising from any of the same, including without
limitation attorney's fees. Tenant acknowledges that Landlord will be relying on
this Agreement in entering leases for the Reduction Space with other parties.
5. NO OFFER. This Agreement shall not be binding until executed and delivered by
both parties. This Agreement shall not be relied upon by any other party,
individual, corporation, partnership or other entity as a basis for reducing its
lease obligations with Landlord.
6. WHOLE AGREEMENT. No representations, promises or inducements have been made
by the parties other than as appear in this Agreement. Thus Agreement may not be
amended except in writing signed by both parties. As amended herein, the Lease
shall reamin in full force and effect.
7. NO DISCLOSURE. Tenant agrees that it shall not disclose any matters set forth
in this Agreement or disseminate or distribute any information concerning the
terms, details or conditions hereof to any person, firm or entity without
obtaining the express written consent of Landlord.
8. MISCELLANEOUS. Warranties, representations, agreements, and obligations
contained I nthis Agreement shall survive the execution and delivery of this
Agreement and shall survive any and all performances in accordance with this
Agreement. This Agreement may be executed in any number of counterparts which
together shall constitute this Agreement. If any party obtains a judgment
against any other party by reason of breach of this Agreement,
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reasonable attorney's fees as fixed by the court shall be included in such
judgment. This Agreement and the terms and provisions hereof shall inure to the
benefit of and be binding upon the heirs, successors and assigns of the parties.
This Agreement shall be construed and enforce in accordance with the laws of the
state in which the Property is located.
9. GUARANTORS. This Agreement shall be of no force or effect unless and until
accepted by any guarantors of the Lease, who by signing below shall agree that
their guarantee shall apply to the Lease as amended herein, unless such
requirement is waived by Landlord in writing.
10. CONSENT. This agreement is subject to, and conditioned upon, any required
consent or approval being granted without any fee or charge that is unacceptable
to Landlord, by Landlord's mortgagees and ground lessors.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
WITNESS; ATTESTATION LANDLORD: 260 Franklin, Inc.
(Two for each signatory required if
Property is in Florida or Ohio):
By: /s/ Xxxxxx X. Xxxxx
----------------------------------- --------------------------------
Its: Vice President
----------------------------------- --------------------------------
TENANT: Corechange LLC
By: /s/ Xxxx Xxxxxxx
----------------------------------- --------------------------------
Its: CFO/SR V.P.
----------------------------------- --------------------------------
By:
----------------------------------- --------------------------------
Its:
----------------------------------- --------------------------------
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EXHIBIT A
REDUCTION SPACE
[Graphic depicts a floorplan showing the layout of approximately 710 rentable
square feet located on the 19th floor of 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx]
-1-
EXHIBIT B
REMAINING SPACE
[Graphic depicts a floorplan showing the layout of approximately 4,208 rentable
square feet located on the 19th floor of 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx]
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LEASE AMENDMENT
THIS LEASE AMENDMENT made as of March 30th, 2000 between 260 FRANKLIN,
INC. ("Landlord") and CORECHANGE LLC ("Tenant").
BACKGROUND
Landlord and Tenant are the successor Landlord (the original Landlord
was 000 Xxxxxxxx Xxxxxx Associates Trust) and the Tenant, respectively, under a
Lease dated December 27, 1996, as amended (the "Lease"), covering certain
premises containing approximately 5,879 rentable square feet on the 18th floor
(the "Original Premises") at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. The
parties desire to add space to the Premises under the Lease and to extend the
term of the Lease, as hereinafter set forth. Capitalized terms not defined
herein shall have the meaning ascribed to them in the Lease.
WITNESSETH:
NOW, THEREFORE, Landlord and Tenant hereby agree as follows:
1. Effective as of April 1, 2000, there is hereby added to the Premises
under the Lease the space located on the 18th floor of the Building shown as the
"Additional Premises" on the plan attached hereto as EXHIBIT A (the "Additional
Premises"). The Additional Premises consists of approximately 1,953 rentable
square feet.
2. Except as expressly provided herein, all terms and provisions of the
Lease shall be applicable to the Additional Premises, except:
(a) Tenant shall accept the Additional Premises in its "as is"
condition and Landlord shall have no obligation to construct any
improvements or perform any work therein for Tenant's occupancy.
Notwithstanding the foregoing, Landlord shall ensure that all
systems and controls in the Additional Premises are in good working
order as of commencement of the term of the Lease for the Additional
Premises and shall deliver the Additional Premises in broom clean
condition. Landlord represents that the Additional Premises is
subject to a currently effective certificate of occupancy.
(b) The term of the Lease for the Additional Premises shall expire
on March 31, 2005. If Tenant does not exercise its option to extend
the term of the Lease for the Original Premises effective April 1,
2002, the Premises will then consist solely of the Additional
Premises.
(c) Effective as of April 1, 2000, the Premises shall consist of
7,832 rentable square feet, and, while the Premises consists of both
the Original Premises and the Additional Premises, Tenant's Pro Rata
Share shall be 2.24%, and, if the Premises shall consist solely of
the Additional Premises, Tenant's Pro Rata share shall be .56%.
-1-
(d) The Base Rent for the Additional Premises shall be $8,788.50 per
month, commencing on April 1, 2000. There shall be no free rent for
the Additional Premises.
(e) The Base Tax Year for the Additional Premises shall be the tax
fiscal year ending June 30, 2000.
(f) The Base Expense Year for the Additional Premises shall be
calendar year 2000.
(g) Landlord will reimburse Tenant up to an aggregate of $13,671 for
the cost of design and construction of improvements in the
Additional Premises performed prior to December 31, 2000. Landlord
shall make such reimbursement upon delivery to it of receipted bills
and lien waivers. Construction of improvements by Tenant shall
comply with all terms and provisions of the Lease.
3. If Tenant shall have exercised its option to extend the term of the
Lease for the Original Premises for the five year period beginning March 1,
2002, Tenant shall have the option to extend the term of the Lease for the
Additional Premises for one period of one (1) year and eleven (11) months,
provided (i) no default beyond applicable cure periods in the obligations of
Tenant under the Lease shall exist at the time such option is exercised and (ii)
Tenant shall give notice to Landlord of its exercise of such option prior to
March 31, 2004. All of the terms and provisions of the Lease shall be applicable
during such extended term except that (a) Tenant shall have no further option to
extend the term of the Lease for the Additional Premises and (b) Base Rent for
such extended term shall be the greater of (i) the Prevailing Rental Rate,
determined as provided in Rider 4 to the Lease, as of the first day of each such
extended term, or (ii) the Base Rent in effect immediately prior to such
extended term.
4. Each of Landlord and Tenant represents and warrants to the other
that it has dealt with no broker or agent in connection with this Lease
Amendment other than Insignia/ESG and Xxxxx Xxxx LaSalle.
5. Except as expressly amended hereby, the Lease shall continue in full
force and effect as heretofore.
-2-
WITNESS the execution hereof as an instrument under seal as of the date first
above written.
LANDLORD:
260 FRANKLIN, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Its: V.P.
TENANT:
CORECHANGE LLC
By: /s/ [illegible]
------------------------------
Its: V.P. Finance and Administration
for Xxx Xxxxxx, President and CEO
-3-
EXHIBIT A
[Exhibit A has not been provided to Corechange]
-4-
