1
EXHIBIT 10.12
LEASE
000 XXXXX XXXXXX ASSOCIATES, LIMITED PARTNERSHIP,
LANDLORD,
AND
ONESOURCE INFORMATION SERVICES, INC.,
TENANT
DATED: JANUARY 20, 1999
PROPERTY: 000 XXXXX XXXXXX, XXXXXXX, XXXXXXXXXXXXX
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TABLE OF CONTENTS
ARTICLE I REFERENCE DATA.......................................................1
Section 1.01 Subjects Referred To...........................................1
Section 1.02 Exhibits.......................................................4
ARTICLE 2 PREMISES AND TERM....................................................4
Section 2.01 Lease of Premises..............................................4
Section 2.02 Appurtenant Rights and Reservations............................4
Section 2.03 Term...........................................................5
ARTICLE 3 LANDLORD'S WORK, DELIVERY OF THE PREMISES AND COMMENCEMENT DATE......5
Section 3.01 Landlord's Work................................................5
Section 3.02 Delivery of Possession and Commencement Date...................5
Section 3.03 Tenant's Early Access..........................................6
Section 3.04 Conclusiveness of Landlord's Performance.......................6
ARTICLE 4 RENT.................................................................6
Section 4.01 Fixed Rent.....................................................7
Section 4.02 Additional Rent................................................7
Section 4.03 Real Estate Taxes..............................................7
Section 4.04 Operating Expenses.............................................9
Section 4.05 Tenant's Electricity Payment..................................13
Section 4.06 Provisions Applicable to Tax Payments, Expense Payments
and Tenant's Electricity Payments.............................14
Section 4.07 Proration of Fixed and Additional Rent........................14
Section 4.08 Late Payment of Rent..........................................14
Section 4.09 Late Payment of Rent..........................................15
ARTICLE 5 USE.................................................................15
Section 5.01 Permitted Uses................................................15
Section 5.02 Specific Prohibitions.........................................15
Section 5.03 Permits and Approvals.........................................15
Section 5.04 Floor Loads...................................................16
ARTICLE 6 INSURANCE...........................................................16
Section 6.01 Tenant's Insurance............................................16
Section 6.02 Landlord's Insurance..........................................16
Section 6.03 Tenant's Liability for Increased Insurance Costs..............17
Section 6.04 Waiver of Subrogation.........................................17
Section 6.05 No Release....................................................18
ARTICLE 7 COMPLIANCE WITH LAWS................................................18
Section 7.01 Tenant's Obligations..........................................18
Section 7.02 Tenant's Right to Contest....................................19
Section 7.03 Americans with Disabilities Act...............................19
Section 7.04 Environmental Compliance......................................19
ARTICLE 8 ALTERATIONS AND ADDITIONS...........................................20
Section 8.01 Tenant's Right to Make Alterations and Additions..............20
Section 8.02 Landlord's Consent............................................21
Section 8.03 Tenant's Performance of Alterations...........................21
3
Section 8.04 Notices of Violation..........................................22
Section 8.05 Costs of Alterations; Liens; Indemnification..................22
Section 8.06 Tenant's Contractor..........................................23
Section 8.07 Fixtures, Restoration.........................................23
ARTICLE 9 REPAIRS.............................................................24
Section 9.01 Tenant's Obligations..........................................24
Section 9.02 Landlord's Obligations........................................24
ARTICLE 10 HEATING, VENTILATION AND AIR CONDITIONING..........................25
Section 10.01 Landlord's Obligations.......................................25
Section 10.02 Services During Non-Business Hours...........................25
Section 10.03 Tenant's Supplemental Air Conditioning.......................26
Section 10.04 Excessive Demand.............................................26
ARTICLE II ELECTRICITY........................................................26
Section 11.01 Landlord's Obligations.......................................26
Section 11.02 Tenant's Obligations.........................................26
Section 11.03 Replacement Lighting........................................27
ARTICLE 12 CLEANING AND OTHER SERVICES........................................27
Section 12.01 Cleaning Services............................................27
Section 12.02 Elevator Service.............................................28
Section 12.03 Water........................................................28
Section 12.04 Interruptions in Service.....................................28
Section 12.05 Security.....................................................29
Section 12.06 Signs........................................................29
Section 12.07 Other Services...............................................29
ARTICLE 13 ASSIGNMENT, MORTGAGING AND SUBLETTING..............................29
Section 13.01 Prohibition..................................................29
Section 13.02 Permitted Assignments and Subleases..........................30
Section 13.03 Procedure....................................................31
Section 13.04 Rent.........................................................33
Section 13.05 Tenant's Ongoing Liability...................................34
Section 13.06 Non-Disturbance and Attornment...............................34
Section 13.07 Certain Landlord Rights......................................34
ARTICLE 14 DAMAGE TO OR DESTRUCTION OF THE PREMISES...........................35
Section 14.01 Landlord's Obligation to Repair; Rent Abatement..............35
Section 14.02 Tenant's Right to Terminate..................................35
Section 14.03 Landlord's Right to Terminate................................35
Section 14.04 Certain Landlord Rights......................................36
ARTICLE 15 EMINENT DOMAIN.....................................................36
Section 15.01 Total Taking.................................................36
Section 15.02 Partial Taking...............................................36
Section 15.03 Award........................................................37
Section 15.04 Temporary Taking.............................................38
Section 15.05 Agreement in Lieu of Taking..................................38
ARTICLE 16 DEFAULT............................................................38
(ii)
4
Section 16.01 Tenant's Performance a Condition.............................38
Section 16.02 Events of Default............................................38
ARTICLE 17 REMEDIES OF LANDLORD...............................................39
Section 17.01 Termination..................................................39
Section 17.02 Re-Entry and Reletting.......................................40
Section 17.03 Equitable Remedies...........................................40
Section 17.04 Tenant's Liability for Damages...............................41
Section 17.05 Landlord's Fees and Expenses.................................42
Section 17.06 Rights Cumulative............................................42
Section 17.07 Rights of Bankruptcy Trustee.................................42
ARTICLE 18 CURING TENANT'S DEFAULTS; APPLICATION OF PAYMENTS.................43
Section 18.01 Landlord's Option to Cure....................................43
Section 18.02 Application of Payments......................................43
ARTICLE 19 NON-LIABILITY AND INDEMNIFICATION..................................43
Section 19.01 Landlord's Liability.........................................43
Section 19.02 Limitations on Liability.....................................44
Section 19.03 Indemnification..............................................44
Section 19.04 Liability of Tenant..........................................45
ARTICLE 20 YIELD UP...........................................................45
Section 20.01 Yield Up.....................................................45
Section 20.02 Abandonment of Personal Property.............................45
Section 20.03 Indemnification..............................................46
Section 20.04 Holdover.....................................................46
Section 20.05 Survival of Provisions.......................................46
ARTICLE 21 SUBORDINATION AND ATTORNMENT.......................................46
Section 21.01 Subordination................................................46
Section 21.02 Successor Landlord...........................................47
ARTICLE 22 ESTOPPEL AND ERISA CERTIFICATES....................................48
Section 22.01 Estoppel Certificate.........................................48
Section 22.02 ERISA Certificate............................................49
ARTICLE 23 ACCESS, CHANGE IN FACILITIES.......................................49
Section 23.01 Reservations to Landlord.....................................49
Section 23.02 Landlord's Right to Change Common Areas......................49
Section 23.03 Landlord's Access............................................50
ARTICLE 24 MISCELLANEOUS......................................................51
Section 24.01 Security Deposit.............................................51
Section 24.02 Notices......................................................52
Section 24.03 Quiet Enjoyment..............................................53
Section 24.04 Rules and Regulations........................................53
Section 24.05 Notice of Accidents..........................................53
Section 24.06 No Representations...........................................54
Section 24.07 Brokerage....................................................54
Section 24.08 Consents.....................................................54
Section 24.09 Lease Not to be Recorded, Notice of Lease....................54
Section 24.10 Inability to Perform.........................................54
(iii)
5
Section 24.11 Waiver.......................................................55
Section 24.12 No Other Waiver..............................................55
Section 24.13 Successors and Assigns.......................................56
Section 24.14 Authority....................................................56
Section 24.15 Entire Agreement.............................................56
Section 24.16 Governing Law................................................56
Section 24.17 Financial Statements.........................................56
Section 24.18 No Third Party Beneficiaries.................................57
ARTICLE 25 DEFINITIONS; CONSTRUCTION OF TERMS.................................57
Section 25.01 Certain Definitions..........................................57
Section 25.02 Provisions Severable.........................................58
Section 25.03 Rules of Construction........................................59
Section 25.04 Captions.....................................................60
ARTICLE 26 EXTENSION RIGHTS...................................................60
Section 26.01 Renewal Option...............................................60
Section 26.02 Renewal Rental Rate..........................................61
Section 26.03 Amendment to Lease...........................................61
Section 26.04 Landlord's Rights............................................61
EXHIBIT A DESCRIPTION OF REAL PROPERTY A1
EXHIBIT B FLOOR PLAN FOR THE PREMISES B1
EXHIBIT C WORK LETTER C1
EXHIBIT D RULES AND REGULATIONS D1
EXHIBIT E CLEANING STANDARDS E1
EXHIBIT F NONDISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT FI
EXHIBIT G LETTER OF CREDIT G1
(iv)
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LEASE
ARTICLE I
REFERENCE DATA
Section 1.01 SUBJECTS REFERRED TO.
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data set forth opposite that subject in this
Section 1.01. Additional definitions are set forth throughout the Lease and in
Article 25.
Landlord: 000 Xxxxx Xxxxxx Associates, Limited
Partnership, a Delaware limited
partnership
Landlord's Present Mailing Address: c/o Hall Properties, Inc.
Xxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Tenant: OneSource Information Services, Inc.,
a Delaware corporation
Tenant's Present Mailing Address: 000 Xxxxxxxxx Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Real Estate Manager
Building and Real Property: That certain office building (the
"BUILDING") having an address at 000 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx situated on
land (the "REAL PROPERTY") more
particularly described in Exhibit A
attached hereto.
Premises: A portion of the third floor of the
Building, substantially as shown on the
floor plan attached hereto as Exhibit B
consisting of approximately 35,770 square
feet of rentable area (the "Premises").
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Fixed Rent: From and after the Commencement Date, for
the Initial Term, the Fixed Rent shall be
Twelve and 66/100 ($12.66) Dollars per
rentable square foot per annum payable in
equal monthly installments. Fixed Rent for
the Renewal Term will be determined in
accordance with Article 26 hereof.
Premises Rentable Area: Approximately 35,770 rentable square feet
of space based upon the Building Owners
and Managers Association method of
measurement (ANSI/BOMA Z65.1, effective
June 6, 1996).
Building Rentable Area: Approximately 408,042 rentable square feet
based upon the Building Owners and
Managers Association method of measurement
(ANSI/BOMA Z65. 1, effective June 6,
1996).
Permitted Uses: General business, office, administrative,
research and development, software
development and clerical uses, and
accessory uses thereto, but not
professional office uses. As used herein
"professional office use" shall have the
meaning ascribed in the Concord Zoning
By-Law, i.e., the use of the Premises for
the office of a doctor, lawyer,
accountant, architect, engineer or similar
professionals.
Floor Loads: 250 lbs. live load per square foot.
Tenant's Share: A fraction, the numerator of which is the
Premises Rentable Area and the denominator
of which is the Building Rentable Area.
Landlord estimates that Tenant's Share is
8.8%, subject to adjustment as provided in
Section 2.01.
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Commencement Date: The date on which Landlord delivers
possession of the Premises to Tenant
pursuant to Section 3.02 hereunder, but no
sooner than June 1, 1999.
Scheduled Commencement Date: June 1, 1999.
Term: Five (5) years commencing on the
Commencement Date and expiring on the
Expiration Date (the "INITIAL TERM"). (The
Initial Term, as it may be extended by a
Renewal Term, are hereinafter collectively
referred to as the "Term").
Expiration Date: The last day of the calendar month in
which the day preceding the fifth
anniversary of the Commencement Date
occurs.
Extension Rights: One option to extend the Initial Term for
a period of five (5) years (the "RENEWAL
TERM").
Parking Spaces: Unallocated parking will be provided on
the parking lots adjacent to the Building
at the rate of 4.0 spaces per 1,000 square
feet of Premises Rentable Area.
Security Deposit: $415,000, in the form of an irrevocable
letter of credit, which may be reduced at
the end of the third and the fourth Lease
Years, as further described in Section
24.01 hereof.
Brokers: Fallon, Xxxxx & X'Xxxxxx
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
and
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XxXxxx & Xxxx
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Section 1.02 EXHIBITS.
The Exhibits to this Lease are incorporated into this Lease by reference
and are to be construed as part of this Lease.
ARTICLE 2
PREMISES AND TERM
Section 2.01 LEASE OF PREMISES.
Landlord hereby leases to Tenant, and Tenant hereby accepts from Landlord,
the Premises, for the rents hereinafter reserved, and upon and subject to the
terms and conditions of this Lease.
The rentable square footage set forth in Article 1, Reference Data, is
based on the Building Owners and Managers Association method of measurement as
adopted effective June 6, 1996 (ANSI/BOMA Z65.1). Within thirty (30) days after
the Commencement Date, Tenant may, at it sole cost, measure the rentable square
footage of the Premises. If Tenant disputes Landlord's measurement of Premises
Rentable Area as set forth in Article 1, Reference Data, it shall promptly
notify Landlord. If Landlord and Tenant cannot ` thereafter agree on the
appropriate measurement within ten (10) days after Tenant's notice, then either
party shall have the right to submit the issue to arbitration in accordance with
the rules of the American Arbitration Association. If it is determined that the
actual rentable square footage varies from the Premises Rentable Area determined
by Landlord, then the Fixed Rent (and any other provisions of this Lease based
upon a specific rentable square footage) shall be retroactively adjusted to
reflect the applicable square footage figure as determined by arbitration.
Landlord and Tenant, as applicable, shall pay any retroactive adjustment within
twenty (20) days after the decision is rendered in the arbitration.
Section 2.02 APPURTENANT RIGHTS AND RESERVATIONS.
Tenant shall have, as appurtenant to the Premises, the nonexclusive right
to use and to permit its invitees to use in common with others, (a) public or
common lobbies, hallways, stairways, passenger and freight elevators, the
cafeteria, the exercise room, including showers and lockers, and sanitary
facilities in the Building, (b) common pipes, ducts, conduits, wires and
appurtenant fixtures serving the Premises, (c) if the Premises include less than
the entire rentable area of any floor, the common toilets and other common
facilities in the central core area of such floor, (d) common walkways and
driveways necessary for access to the Building and (e) the unallocated Parking
Spaces referred to in Section 1.01, but such rights shall always be subject to
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reasonable rules and regulations from time to time established by Landlord by
appropriate notice and to the right of Landlord to reasonably designate and
change from time to time areas and facilities so to be used.
Section 2.03 TERM.
The Premises are leased for the Term unless the Term shall terminate sooner
pursuant to any of the terms of this Lease or pursuant to law.
ARTICLE 3
LANDLORD'S WORK, DELIVERY OF THE PREMISES AND COMMENCEMENT DATE
Section 3.01 LANDLORD'S WORK
If so indicated in the Work Letter attached hereto as Exhibit C (the "WORK
LETTER"), Landlord shall complete the Premises and prepare the same for
occupancy in accordance with the plans, specifications and agreements and on the
terms, conditions and provisions set forth in the Work Letter ("LANDLORD'S
Work").
Except for Landlord's Work and as otherwise specified in this Lease,
Landlord is leasing the Premises to Tenant "as is," without any representations
or warranties of any kind (including, without limitation, any express or implied
warranties of merchantability, fitness or habitability). Possession by Tenant
before completion of Landlord's Work shall not relieve Landlord from completing
or causing the completion of Landlord's Work in accordance with the requirements
of this Lease.
Section 3.02 DELIVERY OF POSSESSION AND COMMENCEMENT DATE.
For purposes of determining the Commencement Date only, the Premises shall
be considered as delivered upon the first to occur of,
(a) the date on which Landlord or Landlord's architect gives notice
of substantial completion (as hereinafter defined) of Landlord's Work;
provided that said work has been substantially completed on said date;
(b) the date on which Tenant takes occupancy of all or any portion
of the ...... Premises for the conduct of its business;
(c) if Landlord reasonably determines that the date of substantial
completion of Landlord's Work is delayed by reason of Tenant Delays (as
defined in the Work Letter), the date on which, in Landlord's reasonable
judgment, Landlord's Work would have been substantially completed but for
such Tenant Delays.
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"SUBSTANTIAL COMPLETION" of Landlord's Work shall mean completion of
Landlord's Work except for items which can be completed after Tenant's occupancy
without undue interference with Tenant's use of the Premises (i.e. so-called
"PUNCHLIST ITEMS "). Landlord shall use reasonable efforts to complete all
punchlist items within thirty (30) days or, if such completion is not feasible
for any reason, as soon as conditions permit, and Tenant shall afford Landlord
access to the Premises for such purpose pursuant to the terms of this Lease.
If the Commencement Date has not occurred by the date that is fifteen (15)
days after the Scheduled Commencement Date for any reason other than Force
Majeure Delays (as defined in the Work Letter) and Tenant Delays, then Tenant
shall receive a credit against Fixed Rent of one hundred percent (100%) of the
daily Fixed Rent at the rate set forth in Section 1.01 for each day of delay
until the Commencement Date. Additional Rent shall be abated until the
Commencement Date occurs. Tenant waives any right to rescind this Lease and
waives the right to recover any further damages, direct or indirect, which may
result from Landlord's failure to substantially complete and deliver the
Premises to Tenant on or before the Scheduled Commencement Date. Notwithstanding
the foregoing, in the event the Commencement Date is delayed for more than six
(6) months after the Scheduled Commencement Date for any reason other than
Tenant Delays, Tenant shall have the right to terminate this Lease by giving
thirty (30) days written notice to Landlord.
When the Commencement Date has been finally established, each of Landlord
and Tenant, upon the request of the other, shall execute a notice in recordable
form stating the Commencement Date and Expiration Date as established. Any
failure of either party to execute such statement shall not affect the
Commencement Date and Expiration Date as established.
Section 3.03 TENANT'S EARLY ACCESS.
Landlord shall permit Tenant access (at Tenant's sole risk) for purposes of
making measurements and installing equipment and furnishings in the Premises
prior to Tenant's taking possession of the Premises if such can be done without
interference with Landlord's Work in the Premises and in other portions of the
Building and in harmony with Landlord's contractors and subcontractors.
Section 3.04 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE.
Except to the extent Tenant shall have given Landlord notice not later than
one hundred twenty (120) days after the Commencement Date (which shall be
extended to one year after the Commencement Date in the case of latent defects)
of respects in which Landlord has not performed Landlord's Work, Tenant shall
have no claim that Landlord has failed to perform any of Landlord's Work.
ARTICLE 4
RENT
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Section 4.01 FIXED RENT.
Tenant shall pay when due to Landlord, without notice or demand, in lawful
money of the United States of America, by check or wire transfer, at the office
of Landlord or at such other place as Landlord may designate, the Fixed Rent.
Fixed Rent shall be payable in equal monthly installments in advance on the
first day of each month during the Term, the first installment to be paid on the
Commencement Date; provided, however, that for the first forty-five (45) days of
the Term, Fixed Rent shall be Six and 25/100 ($6.25) Dollars per square foot of
Premises Rentable Area per annum, prorated on a per them basis.
Section 4.02 ADDITIONAL RENT.
Tenant shall pay when due all sums due from Tenant under the terms of this
Lease, other than Fixed Rent, including, without limitation, (a) Tenant's Share
of Real Estate Taxes and Expenses, (b) Tenant's own insurance costs, utility
charges (including, without limitation, Tenant's Electricity Payment) and
personal property taxes, and (c) all other charges and amounts payable by or due
from Tenant, whether payable initially to Landlord or to a third party
("ADDITIONAL RENT"). For the first twelve months (12) `Months of the Term,
Tenant's Share of Real Estate Taxes and Expenses shall not exceed Five and
65/100 ($5.65) Dollars per square foot of Premises Rentable Area.
Section 4.03 REAL ESTATE TAXES.
As used in this Lease, the term "REAL ESTATE TAXES" shall mean the total of
all taxes and special or other assessments based on the value of, or income
derived from, the Real Property and levied, assessed or imposed at any time by
any governmental authority upon or against the Real Property or any part
thereof, provided, however, that betterments or special assessments levied
against the Real Property on a one time basis and not based on the assessed
value of the Real Property or the general tax rate, will be amortized over the
longest period allowed by law. If, due to a change in the method of taxation or
for any other reason, any tax or assessment is levied, assessed or imposed at
any time by any governmental authority in connection with the value of, or the
receipt of income or rents from, the Real Property, or otherwise imposed with
reference to the ownership, use or occupancy of the Real Property, shall be
levied against Landlord or any owner of the Real Property in addition to or in
substitution in whole or in part for Real Estate Taxes or in lieu of additions
to or increases in Real Estate Taxes, then such other tax, assessment or
governmental imposition shall be deemed to be included within the definition of
Real Estate Taxes for the purposes hereof. If there are any special assessments
which are payable over a period of time extending before or after the Term, only
a pro rata portion thereof, covering the payment period occurring during the
Term, shall be included in Real Estate Taxes. If, by law, any assessment may be
paid in installments, then, for the purposes hereof, (1) such assessment shall
be deemed to have been payable in the maximum number of installments permitted
by law without penalty, and (2) there shall be included in Real Estate Taxes for
each Tax Year in which such installments may be paid the installments of such
assessment so becoming payable during such Tax Year, together with interest
payable during such Tax Year. Included in Real Estate Taxes for any year shall
be the expenses, including reasonable payments
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to attorneys, experts and appraisers, incurred by Landlord during such year in
connection with any application, proceeding or settlement wherein Landlord
obtains or seeks to obtain a reduction or refund of Real Estate Taxes payable or
paid upon or against the Real Property. Tenant shall not be responsible for late
fees, penalties, and interest for Landlord's failure to timely pay Real Estate
Taxes.
Tenant shall pay to Landlord, as Additional Rent for each Tax Year or
portion of a Tax Year included in the Term, in the manner hereinafter provided,
an amount equal to Tenant's Share of the Real Estate Taxes for such Tax Year (a
"TAX PAYMENT").
(a) Before or within thirty (30) days after the start of each Tax
Year, Landlord shall furnish to Tenant a statement of Landlord's reasonable
estimate of Tenant's Share of Real Estate Taxes payable for such Tax Year
and Tenant shall pay. to Landlord as Additional Rent, on the first (1st)
day of each calendar month during such Tax Year, an amount equal to
one-twelfth (1/12th) of Tenant's Share of such estimated Real Estate Taxes.
(b) During any Tax Year included in the Term, Landlord may send to
Tenant a revised statement of Landlord's reasonable estimate of Tenant's
Share of Real Estate Taxes payable for such Tax Year. If, at the time of
any such revised statement, the aggregate amount of the Tenant's Tax
Payments during the preceding months of the Tax Year in question is less
than the amount which would have been paid pursuant to such revised
statement, the deficiency shall be due and payable in full as Additional
Rent within thirty (30) days after the date of such statement and an
appropriate adjustment shall be made to the monthly Tax Payments payable
for the remainder of the Tax Year. If, at the time of any such revised
statement, the aggregate amount of the monthly Tax Payments made by Tenant
during the preceding months of the Tax Year in question exceeds the amount
which would have been paid pursuant to such revised statement, Landlord
shall credit such excess to the Tax Payment(s) next due from Tenant.
(c) Within one hundred twenty (120) days after the end of each Tax
Year, Landlord shall send to Tenant a final statement (a "TAX STATEMENT")
of Tenant's Share of the actual Real Estate Taxes paid by Landlord with
respect to the Real Property, which Tax Statement shall be accompanied by
copies of all relevant tax bills issued by the Town of Concord. If Tenant's
Share of such Real Estate Taxes is greater than the aggregate of Tenant's
Tax Payments for such Tax Year, then within thirty (30) days after the date
of such statement, Tenant shall pay any balance due as Additional Rent. If
Tenant's Share of such Real Estate Taxes is less than the aggregate of
Tenant's Tax Payments for such Tax Year, Landlord shall credit any such
excess to the Tax Payment(s) next due from Tenant or refund such excess if
the Term has ended. Each statement of Tenant's Share of actual Real Estate
Taxes furnished by Landlord as provided above shall constitute a final
determination as between Landlord and Tenant of Tenant's Share of Real
Estate Taxes for the period represented thereby unless Tenant shall, within
thirty (30) days after it is furnished, give notice to Landlord that it
disputes the accuracy thereof, which notice shall specify the particular
respects in which the statement may be inaccurate. Pending
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resolution of such dispute, Tenant shall pay Tenant's Share of Real Estate
Taxes to Landlord in accordance with the statement furnished by Landlord.
(d) Notwithstanding the foregoing, if and to the extent Real Estate
Taxes are required by the taxing authority to be paid in advance on a
quarterly, semiannual or annual basis for any Tax Year to avoid a penalty
or a late charge, then Landlord may elect to xxxx Tenant for Tenant's Share
of Real Estate Taxes then due for such calendar quarter, semiannual period
or year, as the case may be, and Tenant's Share of Real Estate Taxes for
such calendar quarter, semiannual period or Tax Year shall be due in its
entirety within thirty (30) days thereafter, in lieu of monthly payments as
hereinabove provided.
(e) Until a new statement of estimated Tax Payments is rendered,
Tenant's estimated Tax Payment for any Tax Year shall be deemed to be
one-twelfth (1/12th) of the total amount of Tax Payments for the Preceding
Tax Year as set forth in Landlord's most recent statement of the same to
Tenant.
If, after Tenant has made Tax Payments for a Tax Year, Landlord receives a
refund of Real Estate Taxes payable for such Tax Year as a result of a reduction
of such Real Estate Takes by final determination of an application, legal
proceeding, settlement, or otherwise, and provided that Tenant is not in default
under this Lease, Landlord shall, within thirty (30) days after receiving such
refund, pay Tenant's Share of the refund to Tenant (after deducting from such
refund all reasonable legal fees, expert fees, court costs and other expenses
and fees incurred in connection with obtaining such refund to the extent such
fees or expenses were not theretofore included in Real Estate Taxes), Tenant's
Share to be prorated for any partial year if appropriate. Nothing herein shall
be deemed to obligate Landlord and/or any Superior Lessor or Superior Mortgagee
to seek a reduction in Real Estate Taxes or assessed valuation of the Real
Property.
Section 4.04 OPERATING EXPENSES.
Tenant shall pay to Landlord, as Additional Rent, Tenant's Share of
Expenses in accordance with the provisions of this Section 4.04 (an "EXPENSE
PAYMENT").
For purposes of this Lease, the term "EXPENSES" shall mean the total of all
costs and expenses incurred or borne by Landlord with respect to the operation,
maintenance, management, repair and security of the Real Property and the
Building and the services provided to tenants thereof unless provided
exclusively to other tenants in any given Calendar Year, including, but not
limited to, the costs and expenses incurred for and with respect to: heat; fuel;
water rates and sewer rates; air conditioning, ventilation and heating
(including, without limitation, repairs, maintenance and replacement of on-floor
heating, ventilating and air conditioning equipment); electricity utilized with
respect to common elements of the Building (there being excluded or deducted
from such electrical utilization any cost or expense incurred or borne directly
by Landlord and the portion of the cost of supplying electrical current to
provide overtime heating, ventilating and/or air conditioning to a tenant which
is allocable to electricity consumed in furnishing such service and which is
paid by Tenant or any other tenant of the Building); elevator and elevator cab
maintenance; lobby, atrium, interior and exterior plaza and common area
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maintenance; equipping, operating and maintaining cafeteria and food service
areas; equipping, operating and maintaining common health or fitness facilities;
parking lot maintenance and striping; operation and maintenance of fountains;
costs of cleaning; equipment, services and personnel for protection and security
of common areas; reasonable lobby decoration, lobby displays and interior and
exterior landscape maintenance; sprinkler maintenance and alarm service; roof
repair and replacement; refuse and snow removal; maintenance, repairs,
replacements, and improvements which are appropriate for the continued operation
of the Building as a first-class building with related structures and amenities
including parking; rental (or depreciation) of equipment used in cleaning and
maintenance; painting and decoration of non-tenant areas; fire, extended
coverage, special extended coverage, owner's protective, and other casualty
coverage, boiler and machinery, sprinkler, apparatus, public liability and
umbrella liability and property damage, rent or rental value and plate glass
insurance and any other insurance which Landlord may reasonably deem necessary
or which is required by any Superior Lessor and/or Superior Mortgagee; supplies;
wages, salaries and benefits, hospitalization, retirement plans, and group
insurance and other indirect expenses respecting employees of Landlord and
Landlord's contractors up to and including the grade of building manager;
uniforms and working clothes for such employees and the cleaning thereof,
expenses imposed on the Landlord pursuant to legal requirements or any
collective bargaining agreement with respect to such employees; worker's
compensation insurance, payroll, social security, unemployment, and other
similar taxes with respect to such employees; telephone and other Building
office expenses; professional fees (including, without limitation, reasonable
fees of consultants, legal and auditing fees); computer time; reasonable annual
fees for management of the Building and reserves for any or all of the
foregoing. Expenses shall not, however, include the following:
(a) Tenant's Electricity Costs, which are addressed in Section 4.05
hereof,
(b) leasing commissions;
(c) executives' salaries above the grade of building manager;
(d) expenditures for capital improvements except (i) those which are
paid for out of a capital reserve (in which case the expenditure shall be
included in Expenses when the reserve is created or supplemented, but not
when reserved funds are utilized for such capital expenditures), (ii)
capital expenditures which Landlord reasonably anticipates will have the
effect of reducing current and/or future Expenses by. a corresponding
amount, and (iii) capital expenditures required by any law imposed after
the date of this Lease. In all cases where the expenditure for capital
improvements is not made out of reserved funds, the cost thereof shall be
included in Expenses for the year in which the costs are incurred and
subsequent years, on a straight line basis, to the extent that such items
are depreciated over an appropriate useful life, with an interest factor
equal to the Interest Rate at the time of Landlord's having incurred said
expenditure. If Landlord shall lease any item of capital equipment the cost
of which would not be excluded, as above provided, from Expenses, then the
rentals and other costs paid pursuant to such lease shall be included in
Expenses for the year in which they are incurred;
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(e) cost of repairs or replacements incurred by reason of fire or
other casualty or by the exercise of the right of eminent domain, to the
extent to which Landlord is compensated therefor through proceeds of
insurance or a condemnation award;
(f) advertising expenditures;
(g) legal fees incurred in disputes with tenants;
(h) costs incurred in performing work or furnishing services
exclusively to or for the benefit of individual tenants;
(i) debt service on any Superior Mortgage and rent payable under any
Superior Lease;
(j) expenses for which Landlord is entitled to be reimbursed or
indemnified (either by an insurer, condemnor, tenant or otherwise);
(k) legal expenses arising out of the negotiation or enforcement of
any provisions of any leases;
(1) wages, salaries or other compensation paid to any employees of
Landlord and Landlord's contractors above the grade of building manager;
(m) the cost of remediating any condition related to the presence on
the Real Property of any Hazardous Substances;
(n) any contribution by Tenant to supplement Landlord's capital
reserves if as a consequence of such contribution the aggregate amount of
capital reserves held by Landlord following such contribution would exceed
an amount equal to the product of One ($1.00) Dollar times the Rentable
Area of the Building;
(o) fines or penalties incurred on account of violations of Legal
Requirements;
(p) general overhead and other costs associated with the operation
of the business entity constituting Landlord; or
(q) for the Initial Term only, annual fees for management and
leasing of the Building exceeding four percent (4%) of gross collected
rents for the Building.
In addition, the cost of any service rendered to the Real Property or
Building in conjunction with other properties owned by Landlord or any of
its subsidiaries or affiliates shall be equitably apportioned.
If, during all or part of any Calendar Year, Landlord shall not furnish any
particular item(s) of work or service (which would constitute an Expense
hereunder) to portions of the
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Building, due to the fact that such portions are not occupied or leased, or
because such item(s) of work or service is not required or desired by the tenant
of such portion, or such tenant is itself obtaining and providing such item(s)
of work or service, or for other reasons, then, for the purposes of computing
the Additional Rent payable hereunder, the amount of such item(s) included in
Expenses for such period shall be increased by an amount equal to the additional
operating and maintenance expenses which would reasonably have been incurred
during such Calendar Year by Landlord if it had at its own expense furnished
such item(s) of work or service to the Building as if 95% of the Building
Rentable Area had been occupied by tenants. Furthermore, if during the Term,
Landlord shall make a capital expenditure, the total cost of which is not
properly includable in Expenses for the Calendar Year in which it was made,
there shall nevertheless be included in such Expenses for each succeeding Year
an annual charge-off of such capital expenditure. Said annual charge-off shall
be determined by dividing the original capital expenditure plus an interest
factor equal to the Interest Rate, by the number of years of useful life of the
improvement made with the capital expenditure; and the useful life shall be
reasonably determined by Landlord in accordance with generally accepted
accounting principles and practices in effect at the time such expenditure is
made.
Tenant shall pay to Landlord, as Additional Rent for each Calendar Year, in
the manner hereinafter provided, an amount equal to Tenant's Share. of Expenses
for such Calendar Year.
(a) Before or within thirty (30) days after the start of each
Calendar Year, Landlord shall furnish to Tenant a statement of Landlord's
reasonable estimate of Tenant's Share of the projected Expenses for such
Calendar Year, and Tenant shall pay to Landlord as Additional Rent, on the
first (1st) day of each calendar month during such Calendar Year, an amount
equal to one-twelfth (1/12th) of Tenant's Share of such projected Expenses.
(b) At any time during any Calendar Year, Landlord may deliver to
Tenant a revised statement of projected Expenses to reflect known increases
in rates for the current Calendar Year applicable to the items included in
Expenses, and thereafter Tenant's monthly Expense Payment shall be adjusted
accordingly. If, at the time of any such revised statement, the aggregate
amount of the monthly Expense Payments made by Tenant during the preceding
months of the Calendar Year in question is less than the amount which would
have been paid pursuant to such revised statement, the deficiency shall be
due and payable in full as Additional Rent within thirty (30) days after
the date of such statement. If, at the time of any such revised statement,
the aggregate amount of the monthly Expense Payments made by Tenant during
the preceding months of the Calendar Year in question exceeds the amount
which would have been paid pursuant to such revised statement, Landlord
shall credit such excess to the Expense Payment(s) next due from Tenant.
(c) Within one hundred twenty (120) days after the end of each
Calendar Year, Landlord shall submit to Tenant an "EXPENSE STATEMENT"
prepared by Landlord setting forth the Expenses for the preceding year and
the adjustment, if any, due for such Calendar Year. If Tenant's Share of
such Expenses is greater than the aggregate of
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Tenant's estimated Expense Payments for such Calendar Year, then within
thirty (30) days after the date of such statement, Tenant shall pay any
unpaid portion of its Expense Payment as Additional Rent. If Tenant's Share
of such Expenses is less than the aggregate of Tenant's estimated Expense
Payments for such Calendar Year, Landlord shall credit any such excess to
the Expense Payment(s) next due from Tenant or refunded such excess if the
Term has ended. Each Expense Statement of Tenant's Share of the actual
Expenses furnished by Landlord as provided above shall constitute a final
determination as between Landlord and Tenant of Tenant's Share of Expenses
for the period represented thereby unless Tenant shall, within sixty (60)
days after it is famished, give notice to Landlord that it disputes the
accuracy thereof, which notice shall specify the particular respects in
which the Statement may be inaccurate. Pending resolution of such dispute,
Tenant shall pay Tenant's Share of Expenses to Landlord in accordance with
the statement furnished by Landlord. Landlord shall allow Tenant reasonable
access to the actual invoices and other books and records pertaining to
Expenses.
(d) Until a new statement of projected Expenses is rendered,
Tenant's Estimated Expense Payment for any year shall be deemed to be
one-twelfth (1/12th) of the total Expense Payment for the preceding year
(or, prior to the rendering of the Expense Statement for such year, Tenant
shall continue the same estimated Expense Payment).
Section 4.05 TENANT'S ELECTRICITY PAYMENT.
Tenant shall pay to Landlord, as Additional Rent, Tenant's Electricity
Payment in accordance with the following:
For purposes of this Lease, the term "TENANT'S ELECTRICITY PAYMENT" shall
mean all costs and expenses incurred or borne by Landlord with respect to all
electricity utilized by Tenant, including, without limitation, base and peak
demand charges. Landlord shall charge Tenant for such electricity utilization by
allocating Building electricity costs to Tenant by any reasonable method,
including by the use of check meters, submeters or formulas based on square
footage, intensity and timing of electricity usage.
Within thirty (30) days after the end of each month during the Term,
Landlord shall submit to Tenant a statement (an "ELECTRICALLY STATEMENT") as to
Tenant's Electricity Payment for such month and Tenant shall pay to Landlord
such amount as Additional Rent within thirty (30) days thereafter. Each
Electricity Statement furnished by Landlord as provided above shall constitute a
final determination as between Landlord and Tenant of Tenant's Electricity
Payment for the period represented thereby unless Tenant shall, within thirty
(30) days after it is furnished, give notice to Landlord that it disputes the
accuracy thereof, which notice shall specify the particular respects in which
the Statement may be inaccurate. Pending Irresolution of such dispute, Tenant
shall pay Tenant's Electricity Payment to Landlord in accordance with the
Statement furnished by Landlord. Landlord shall allow Tenant reasonable access
to the actual invoices and other books and records pertaining to Tenant's
Electricity Payment.
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Section 4.06 PROVISIONS APPLICABLE TO TAX PAYMENTS, EXPENSE PAYMENTS AND
TENANT'S ELECTRICITY PAYMENTS.
Subject to the terms of this Section 4.06, the following provisions shall
be applicable to Tax Payments, Expense Payments and Tenant's Electricity
Payments:
(a) Landlord's and Tenant's obligation to make the adjustments
referred to in Sections 4.03, 4.04 and 4.05 shall survive any expiration or
termination of this Lease except that a final accounting shall be made
within six (6) months following the then current Tax and Calendar Years.
With respect to the year in which the Term expires or terminates, each of
Tenant's Tax Payment, Expense Payment and Electricity Payment shall become
immediately due and payable by Tenant to Landlord, if it has not already
been paid, and Landlord, as soon as reasonably practicable, shall cause the
Tax Statement, Expense Statement and Electricity Statement for that Tax
Year, Calendar Year and month, as applicable, to be prepared and furnished
to Tenant. Landlord and Tenant thereupon shall make appropriate adjustments
of all amounts then owing.
(b) Any delay or failure of Landlord in billing Tax Payments,
Expense Payments and Tenant's Electricity Payments shall not constitute a
waiver of, or in any way impair the continuing obligation of Tenant to pay,
such amounts.
(c) The allocation of Real Estate Taxes and Expenses shall be
determined, where not otherwise explicitly set forth herein, in accordance
with ANSI/BOMA Z65.1, with the exception that Real Estate Taxes and
Expenses with respect to common areas on the first floor of the Building
shall be allocable to all floors of the Building.
Section 4.07 PRORATION OF FIXED AND ADDITIONAL RENT.
In the event that the Initial Term or the Renewal Term shall commence on a
day other than the first day of a calendar month, or expire on a day other than
the last day of a calendar month, the Fixed Rent and Additional Rent for such
month shall be prorated on a per diem basis.
With respect to Expenses only, if the first Calendar Year in the Initial
Term is not a full calendar year, then the Expenses for such first Calendar Year
shall be annualized by Landlord, giving effect to seasonal variations, to obtain
the amounts thereof which would have been incurred had said first Calendar Year
been a full calendar year, and the Expense Payment shall be computed by Landlord
based upon such annualized amounts. For purposes of the foregoing, amounts shall
be computed on the basis of a three hundred sixty (360) day year comprised of
twelve (12) thirty (30) day months.
Section 4.08 LATE PAYMENT OF RENT.
If Tenant shall fail to pay any installment of Fixed Rent or Additional
Rent for a period of ten (10) days after such installment or payment shall
become due, Tenant shall pay interest on such Fixed Rent or Additional Rent at
the Interest Rate, from the date when such installment or
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payment became due to the date of payment thereof, which interest shall be
deemed Additional Rent.
Section 4.09 LATE PAYMENT OF RENT.
There shall be no abatement of, deduction from, reduction of, or
counterclaim or setoff against any rental unless otherwise specifically and
expressly permitted in this Lease. The terms "RENT", "RENT" or "RENTAL" as used
in this Lease, shall include Fixed Rent and Additional Rent.
ARTICLE 5
USE
Section 5.01 PERMITTED USES.
Tenant shall use and occupy the Premises for the Permitted Uses, and for no
other purpose. The provisions of this Article 5 or Section 1.01 as to the nature
of Tenant's use of the Premises shall not constitute a representation or
guaranty by Landlord that any use other than general business office use is
lawful or permissible under any certificate of occupancy issued for the Premises
or Building or is otherwise permitted by law.
Section 5.02 SPECIFIC PROHIBITIONS.
Notwithstanding any other provision of this Lease, including, without
limitation, Section 5.01, Tenant shall not use, occupy, suffer or permit the
Premises or any part thereof to be used in any manner, or suffer or permit
anything to be brought into or kept therein, which would, in Landlord's
reasonable judgment, (a) make unobtainable, at standard rates from any reputable
insurance company authorized to do business in the State, any fire insurance
with extended coverage or liability, elevator, boiler, umbrella or other
insurance, (b) cause, or be likely to cause, injury or damage to the Building or
to any Building Equipment on the Premises, (c) constitute a public or private
nuisance, (d) violate any certificate of occupancy for the Building, (e) emit
objectionable noise, fumes, vibrations, heat, chilled air, vapors or odors into
or from the Building or the Building Equipment, (o subject Landlord to any
liability for injury to any person or property, (g) cause any increase in the
insurance rates applicable to the Building, (h) result in the cancellation of,
or the assertion of any defense by any insurer to any claim under, any policy of
insurance maintained by or for the benefit of Landlord, (i) impair or interfere
with any of the Building services including the furnishing of electrical energy,
or the proper and economical cleaning, heating, ventilating, air conditioning or
other servicing of the Building, Building Equipment or the Premises or (j)
violate the Rules and Regulations of the Building attached hereto as Exhibit D
(the "RULES AND Regulations "). The restrictions imposed by this Section, and
the application thereof, shall not be limited or modified by the terms of any
other provision of this Lease.
Section 5.03 PERMITS AND APPROVALS.
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If any governmental license or permit, other than a certificate of
occupancy, shall be required for the proper and lawful conduct of Tenant's
business in or occupancy of the Premises and if failure to secure such license
or permit would in any way affect Landlord or the Building, then Tenant, at its
expense, shall procure and thereafter maintain such license or permit and submit
the same to Landlord for inspection. Tenant shall comply with the terms and
conditions of each such license and/or permit.
Section 5.04 FLOOR LOADS.
Tenant shall not place a load upon any floor that exceeds the Floor Load.
Subject to the preceding sentence, if Tenant wishes to place any safes or vaults
in the Premises, it may do so at its own expense after giving prior notice to
Landlord, but Landlord reserves the right to reasonably prescribe their weight
and position.
ARTICLE 6
INSURANCE
Section 6.01 TENANT'S INSURANCE.
Tenant shall obtain and keep in full force and effect during the Term, at
its own cost and expense, to protect Landlord, Landlord's agents and employees,
any Superior Lessor or Superior Mortgagee and Tenant as additional insureds
(except as to Tenant) (a) Public Liability Insurance to afford protection
against any and all claims for personal injury, death or property damage
occurring in, upon, adjacent to or connected with the Premises, the Real
Property or any part thereof in an amount of not less than $5,000,000 for injury
or death arising out of any one occurrence, and $2,000,000 for damage to
property in respect of one occurrence, or in any increased amount reasonably
required by Landlord; and (b) insurance against loss or damage by fire, and such
other risks and hazards as are insurable under then available standard forms of
fire insurance policies with extended coverage, to Tenant's Property for the
full insurable value thereof. During such time as Tenant shall be constructing
any Improvements, Tenant shall carry builder's risk insurance, completed value
form, covering all physical loss, in an amount reasonably satisfactory to, and
to protect, the Landlord and any Superior Lessor or Superior Mortgagee. All such
insurance shall be written in form and substance reasonably satisfactory to
Landlord by an insurance company of recognized responsibility licensed ` to do
business in the Commonwealth of Massachusetts which shall be reasonably
satisfactory to Landlord. Upon failure of Tenant to procure, maintain and pay
all premiums therefor, Landlord may, at its option, do so, and Tenant agrees to
pay the cost thereof to Landlord as Additional Rent. Tenant shall cause to be
included in all such insurance policies a provision to the effect that the same
will be non-cancelable and not permitted to lapse except upon thirty (30) days'
prior notice to Landlord, any Superior Lessor and any Superior Mortgagee. No
later than the Commencement Date, original insurance policies or appropriate
certificates shall be deposited with Landlord. Any renewals, replacements or
endorsements thereto shall also be deposited with Landlord.
Section 6.02 LANDLORD'S INSURANCE.
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Landlord shall obtain and keep in full force and effect during the Term, at
its own cost and expense (a) Public Liability Insurance to afford protection
against any and all claims for personal injury, death or property damage
occurring in, upon, adjacent to or connected with the Premises, the Real
Property or any part thereof in an amount of not less than $5,000,000 for injury
or death arising out of any one occurrence, and $2,000,000 for damage to
property in respect of one occurrence; and (b) insurance against loss or damage
by fire, and such other risks and hazards as are insurable under then available
standard forms of fire insurance policies with all risk coverage, to the
Building and the Building Equipment for the full replacement cost thereof, and
including flood insurance, if applicable.
Section 6.03 TENANT'S LIABILITY FOR INCREASED INSURANCE COSTS.
If, by reason of any act or omission on the part of Tenant, whether or not
Landlord has consented to the same, the premiums for fire, rent or any other
type of insurance maintained by Landlord or any other tenant in the Building
covering the Building, the Building Equipment or other property of Landlord (or
of such other tenant) shall be higher than they otherwise would be, Tenant shall
promptly reimburse Landlord for the increased portion of the premiums for such
insurance paid by Landlord because of such act or omission on the part of
Tenant, which sum shall be Additional Rent payable on demand to Landlord. If due
to Tenant's occupancy or failure to occupy the Premises any such insurance shall
be canceled by any insurance carrier, Tenant hereby indemnifies Landlord against
any loss which would have been covered by such insurance.
Section 6.04 WAIVER OF SUBROGATION.
Throughout the Term, each party agrees to use its reasonable efforts to
include in each of its insurance policies (insuring the Building and the
Building Equipment, in the case of Landlord, and insuring Tenant's Property and
business interest in the Premises, including, without limitation, business
interruption insurance, in the case of Tenant, against loss, damage or
destruction by fire or other insured casualty) a waiver of the insurer's right
of subrogation against the other party; or if such waiver should be commercially
unobtainable or unenforceable, an express agreement that such policy shall not
be invalidated if the insured waives or has waived, before occurrence of the
casualty, any rights of recovery against any party responsible for a casualty
covered by the policy. If such waiver or agreement shall not be obtainable
without additional charge, the insured party shall so notify the other party
promptly and, if the other party shall pay the insurer's additional charge
therefor, such waiver or agreement shall be included in the policy.
(a) So long as Landlord's insurance policies include the waiver of
subrogation or agreement to release liability referred to in Section 6.04,
Landlord, to the extent that such insurance is in force and is collectible,
hereby waives any right of recovery against Tenant, any other permitted
occupant of the Premises, and any of their employees or agents, for any
loss occasioned by fire or other casualty. In the event that at any time
Landlord's fire insurance carriers shall not include such or similar
provisions in
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Landlord's policies, the waiver set forth in the foregoing sentence shall
be of no further force or effect, and Landlord shall give notice thereof to
Tenant. During any period that the foregoing waiver of right of recovery is
in effect, Landlord shall look solely to the proceeds of such policies to
compensate Landlord for any loss occasioned by any insured casualty.
(b) So long as Tenant's insurance policies include the waiver of
subrogation or agreement or permission to release liability referred to in
Section 6.04, Tenant, to the extent that such insurance is in force and
collectible, hereby waives, and agrees to cause all other occupants of the
Premises to execute and deliver to Landlord instruments waiving any right
of recovery against Landlord, any Superior Lessor and any Superior
Mortgagee and any of their respective employees, agents or contractors, for
any loss occasioned by fire or other insured casualty. In the event that at
any time Tenant's insurance carriers shall not include such waiver or
similar provisions in Tenant's policies, the waiver set forth in the
foregoing sentence, upon prior notice given by Tenant to Landlord, shall be
of no further force or effect with respect to any insured risks under such
policy from and after the giving of such notice, or in the case such
insurer shall not be willing to grant such waiver for all of the required
parties, such waiver shall be of no force or effect with respect only to
the required parties not included in such waiver. During any period that
the foregoing waiver of right of recovery is in effect, Tenant, or any
other occupant of the Premises, shall look solely to the proceeds of such
policies to compensate Tenant or such other occupant for any loss
occasioned by any insured casualty.
Section 6.05 NO RELEASE.
Except to the extent expressly provided in Section 6.04, nothing contained
in this Lease shall relieve (a) Tenant of any liability to Landlord or to its
insurance carriers which Tenant may have under law or the provisions of this
Lease by reason of any damage to the Premises or the Building by fire or other
casualty or (b) Landlord of any liability to Tenant or to its insurance carriers
which Landlord may have under law or the provisions of this Lease by reason of
any damage to the Premises or the Building by fire or other casualty.
ARTICLE 7
COMPLIANCE WITH LAWS
Section 7.01 TENANT'S OBLIGATIONS.
Tenant, at its sole cost and expense, shall comply with all Legal
Requirements and all Insurance Requirements applicable to the Premises and give
Landlord prompt notice of any lack of compliance, except that Tenant shall have
no obligation to make any alteration of the Premises required solely by reason
of its use thereof for the purposes permitted by Section 5.01 unless said
alteration (a) is necessitated by a condition which has been otherwise created
by, or at the instance of, Tenant, (b) is attributable to the use, other than as
expressly permitted by Section
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5.01, to which Tenant puts the Premises, or Tenant's manner of use of the
Premises, (c) is required by reason of a breach of Tenant's obligations
hereunder, or (d) is occasioned, in whole or in part, by any act, omission or
negligence of Tenant or any person claiming by, through or under Tenant, or any
of their assignees, subtenants, employees, agents, contractors, invitees or
licensees. Tenant shall pay all costs, expenses, fines, penalties and damages
which may be imposed upon Landlord, any Superior Lessor, and/or any Superior
Mortgagee by reason of or arising out of Tenant's failure fully and promptly to
comply with the provisions of this Section.
It shall be Landlord's responsibility to comply with all Legal Requirements
and Insurance Requirements applicable to the base Building, (including the
Building Equipment not installed by Tenant or other tenants of the Building),
for which Tenant and other tenants of the Building are not responsible pursuant
to the terms of their leases which are reasonably comparable hereto.
Section 7.02 TENANT'S RIGHT TO CONTEST.
Tenant, at its sole cost and expense, after notice to Landlord, by
appropriate proceedings prosecuted diligently and in good faith, may contest the
validity or applicability of any Legal Requirement or Insurance Requirement,
provided that: (a) Landlord shall not be subject to civil or criminal fines or
violations, nor shall the Building or the Real Property, or any part thereof, be
subject to being condemned or vacated, by reason of noncompliance or otherwise
by reason of such contest; (b) before the commencement of such contest, Tenant
shall furnish to Landlord either (i) the bond of a surety company, in form and
substance reasonably satisfactory to Landlord, in an amount at least equal to
125% of the cost of such compliance (as estimated by Landlord) and shall
indemnify Landlord against any cost resulting from or incurred in connection
with such contest or noncompliance, or (ii) other security reasonably
satisfactory in all respects to Landlord; (c) such noncompliance or contest
shall not, in Landlord's reasonable judgment, constitute or result in any
material risk of material economic loss to Landlord (in which event Landlord may
condition Tenant's noncompliance or contest upon the taking of action or
furnishing of security by Tenant; and (d) Tenant shall keep Landlord regularly
advised in writing as to the status of such proceedings.
Section 7.03 AMERICANS WITH DISABILITIES ACT.
Landlord acknowledges the existence of the Americans with Disabilities Act
(the "ADA") and will meet the requirements of the ADA with regard to the common
areas of the Building. Tenant consents to any and all actions reasonably
necessary to be taken by Landlord in order to comply with the provisions of the
ADA. Additionally, Tenant agrees to take any and all actions reasonably
necessary in order to cause the Premises to comply with the ADA. Tenant hereby
agrees to indemnify and hold Landlord harmless from and against any and all
loss, damages, costs or expenses incurred by Landlord as a result of Tenant's
failure to comply with the terms and provisions of the ADA insofar as the
Premises are concerned.
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Section 7.04 ENVIRONMENTAL COMPLIANCE.
(a) Tenant shall comply with all environmental laws, rules and
regulations applicable to the Premises and Tenant's use thereof. Tenant shall
not store, generate, handle, transport, treat, dispose of or use hazardous or
toxic substances or waste as defined in any applicable Legal Requirement
("Hazardous Substances") except in compliance with all applicable Legal
Requirements. In the event that Hazardous Substances violating applicable Legal
Requirements are discovered in or on the Premises, then Tenant shall be liable
for all costs and expenses associated with the treatment and removal thereof in
compliance with all applicable Legal Requirements and shall immediately bring
the Premises into compliance with all Legal Requirements applicable to Hazardous
Substances. Tenant shall indemnify, defend and save Landlord harmless from and
against all loss, cost, claims, fines, penalties, liabilities, damages and
expenses (including, without limitation, costs associated with any investigation
of site conditions or any cleanup, remedial action, removal or restoration work,
diminution in the value of the Building or Real Property, damages for the loss
or restriction on use of any portion of the Building or Real Property, damages
arising from any adverse impact on marketing of space in Building, reasonable
attorneys' fees, expert witness fees and other costs of defense) arising out
Tenant's violation of this Section 7.04; provided, however, that Tenant shall
not be liable for costs or expenses associated with Hazardous Substances which
were located upon the Premises prior to the Commencement Date. This Section 7.04
(a) shall survive expiration or termination of this Lease.
(b) If at any time during the Term any applicable Legal Requirements
require the removal of the tiles affixed to either the floor slab or the
unfinished ceiling, Landlord shall remove said tiles at its sole cost and
expense and in accordance with said Legal Requirements.
ARTICLE 8
ALTERATIONS AND ADDITIONS
Section 8.01 TENANT'S RIGHT TO MAKE ALTERATIONS AND ADDITIONS.
Tenant shall not make installations, alterations or additions in, to or on
the Premises except in compliance with this Article 8. Provided Tenant is not in
default under this Lease, Tenant, at its sole cost and expense, may make
nonstructural improvements in the Premises ("TENANT'S ALTERATIONS" or
"ALTERATIONS"), provided:
(a) Tenant's Alterations will not result in a violation of or
require a change in any certificate of occupancy, permit or governmental
approval applicable to the Premises or to the Building or require Landlord
to make changes in or about the Premises as a .result of Tenant's
Alterations;
(b) The character or outside appearance of the Building, appearance
of any common area or atrium, or rentability, value or cubic content of the
Premises or the Building or any part thereof shall not be affected in any
way, and Tenant's Alterations shall not, in the reasonable opinion of
Landlord, weaken or impair (temporarily or
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permanently) the structure of the Building either during the making of such
Alterations or upon their completion;
(c) Tenant shall not be permitted to install and make part of the
Premises any materials, fixtures or articles which are subject to liens,
chattel mortgages or security interests; and
(d) No Alterations reasonably estimated by Landlord's architect,
engineer or contractor to cost more than $50,000 ("Major Alterations")
shall be undertaken (i) except under the supervision of a licensed
architect or licensed professional engineer satisfactory to Landlord, (ii)
except if Landlord has ` received thirty (30) days' prior written notice
and (iii) prior to Tenant delivering to Landlord either (1) a performance
bond and a labor and materials payment bond (issued by a surety company
reasonably satisfactory to Landlord and licensed to do business in the
State) each in an amount equal to 125% of such estimated cost, showing
Landlord as an additional obligee thereunder, and otherwise in form
reasonably satisfactory to Landlord or (2) such other security as shall be
reasonably satisfactory to Landlord.
Section 8.02 LANDLORD'S CONSENT.
Before proceeding with any Alterations, Tenant shall submit to Landlord
three copies of detailed drawings and specifications therefor for Landlord's
written consent, which consent shall not be unreasonably withheld or delayed.
Tenant shall upon demand reimburse Landlord for all reasonable expenses incurred
by Landlord in connection with (a) its decision and the decision, if required,
of any Superior Lessor and any Superior Mortgagee as to whether to approve the
proposed Alterations and (b) inspecting the Alterations to determine whether the
same are being or have been performed in accordance with the approved drawings
and specifications therefor and with all Legal Requirements and Insurance
Requirements, including the reasonable fees and expenses of any attorney,
architect and/or engineer employed for such purpose. Any Alterations for which
consent has been received shall be performed in accordance with the approved
drawings and specifications therefor, and no changes thereto shall be made
without the prior consent of Landlord, which consent shall not be unreasonably
withheld or delayed. No approval of plans or specifications by Landlord, or
consent by Landlord allowing Tenant to make Alterations in the Premises, or any
inspection of Alterations made by or for Landlord shall in any way be deemed to
be an agreement by Landlord that the contemplated Alterations comply with any
Legal Requirements or Insurance Requirements or the certificate of occupancy for
the Building, nor shall it be deemed to be a waiver by Landlord of Tenant's
obligation to comply with any provision of this Lease. Notice is hereby given
that neither Landlord, Landlord's agents, any Superior Lessor nor any Superior
Mortgagee shall be liable for any labor or materials furnished or to be
furnished to Tenant upon credit, and that no mechanic's or other lien for such
labor or materials shall attach to or affect any estate or interest of the
Landlord, any Superior Lessor or the Superior Mortgagee in and to the Real
Property.
Section 8.03 TENANT'S PERFORMANCE OF ALTERATIONS.
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All Alterations shall at all times comply with all Legal Requirements and
Insurance Requirements and all Rules and Regulations and shall be made at such
times and in such manner as Landlord may from time to time reasonably direct.
Tenant, at its expense, shall (a) obtain all necessary municipal and other
governmental permits, authorizations, approvals and certificates for the
commencement, prosecution and final approval of such Alterations, and upon
completion, deliver copies thereof to Landlord, and (b) cause all Alterations to
be performed in a good and first-class workmanlike manner, using new materials
and equipment at least equal in quality to the original installations of the
Building or the then standards for the Building established by Landlord.
Alterations shall be promptly commenced and completed and shall be performed in
such manner so as not to interfere with the occupancy of any other tenant nor
delay or impose any additional expense upon Landlord in the maintenance,
cleaning, repair, safety, management, or security of the Building (or the
Building Equipment) or in the performance of any Alterations. If any additional
expense is reasonably incurred by Landlord, Tenant shall pay such additional
expense as Additional Rent upon demand. Tenant shall not use the passenger
elevators during Business Hours for haulage or removal of materials or debris
except on moving day and Tenant shall not make loud noise during Business Hours
in or about the Premises. Throughout the performance of Alterations, Tenant, at
its sole cost and expense, shall carry, or cause to be carried, worker's
compensation insurance covering all persons employed in connection with the
Alterations in statutory limits and general liability insurance (with completed
operations endorsement) for any occurrence in or about the Real Property in
which Landlord, Landlord's agents, any Superior Lessor and any Superior
Mortgagee shall be named as parties insured, in such limits as Landlord may
reasonably prescribe, with insurers reasonably to Landlord. Tenant shall furnish
Landlord with satisfactory evidence that such insurance is in effect before the
commencement of its Alterations and, on request, at reasonable intervals
thereafter. Upon completion of the Alterations, Tenant shall deliver a complete
set of "As Built" drawings and plans to Landlord. No Alterations shall involve
the removal of any fixtures, equipment or other property in the Premises which
are not Tenant's Property without Landlord's prior consent and unless they shall
be promptly replaced, at Tenant's expense, with fixtures, equipment or other
property of like utility and at least equal value (which thereupon shall become
the property of Landlord). Throughout the Term, Tenant shall keep full and
complete records describing its Alterations costing in excess of $10,000 and of
the aggregate cost thereof (including architect's and engineer's fees and
expenses). Tenant shall, within thirty (30) days after demand by Landlord,
furnish to Landlord full and complete copies of such records.
Section 8.04 NOTICES OF VIOLATION.
Tenant, at its expense, promptly shall procure the cancellation or
discharge of all notices of violation arising from or otherwise connected with
Alterations which shall be issued by any public authority having or asserting
jurisdiction.
Section 8.05 COSTS OF ALTERATIONS; LIENS; INDEMNIFICATION.
Tenant promptly shall pay the cost of all Alterations. Tenant hereby
indemnities Landlord against liability for any mechanics' and other liens filed
in connection with Alterations or repairs, including the liens of any chattel
mortgages, security agreements or financing
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statements upon any materials or fixtures installed in and constituting part of
the Premises. Tenant, at its expense, shall procure the discharge of all such
liens within twenty (20) days after notice of the filing of any such lien
against the Real Property or any part thereof. If Tenant shall fail to cause any
such lien to be discharged within the period aforesaid, then, in addition to any
other right or remedy, Landlord may, but shall not be obligated to, discharge
the same either by paying the amount claimed to be due or by deposit or bonding
proceedings, and in any such event Landlord shall be entitled, if it elects, to
compel the prosecution of an action for the foreclosure of such lien and to pay
the amount of the judgment in favor of the lien or with interest, costs and
allowance. Any amount so paid by Landlord, and all costs and expenses incurred
by Landlord in connection therewith, shall constitute Additional Rent and shall
be paid to Landlord by Tenant on demand.
Section 8.06 TENANT'S CONTRACTOR.
Only Landlord or persons first approved by Landlord in Landlord's
reasonable discretion shall be permitted to act as contractor for any work to be
performed in accordance with this Article 8. Landlord reserves the right to
exclude from the Building any person attempting to act as construction
contractor in violation of this Article. In the event Tenant shall employ any
contractor permitted by this Section, such contractor or any subcontractor may
have use of the Building Equipment subject to the provisions of this Lease and
the Rules and Regulations governing construction. Tenant will present to
Landlord the names of any such contractor or subcontractor Tenant proposes to
use in the Premises for Landlord's approval as aforesaid as follows: (a) at
least fifteen (15) days prior to the beginning of Major Alterations by such
contractor or subcontractor, and (b) at least five (5) days prior to beginning
any other Alterations by such contractor or subcontractor.
Section 8.07 FIXTURES, RESTORATION.
Upon the termination of this Lease, Tenant shall, on Landlord's request,
restore the Premises to their condition prior to the making of any Alterations,
reasonable wear and tear and damage by insured casualty excepted. Landlord
acknowledges that Tenant shall not be required to restore Landlord's Work or any
other Alterations which Landlord does not identify at or prior to the time of
approval therefor. Except for Tenant's Property and as provided in this Section
8.07, all fixtures, equipment, Alterations and appurtenances attached to or
built into the Premises at the commencement of or during the Term (collectively
"FIXTURES"), whether or not at the expense of Tenant, shall be and remain a part
of the Premises and shall be deemed the property of Landlord as of the date such
Fixtures are completed, or as of the date such Fixtures are attached to or built
into the Premises, and shall not be removed by Tenant, except as expressly
provided in this Lease. The Fixtures shall include all electrical, plumbing,
heating and sprinkling equipment, security systems fixtures, outlets, switches,
public address and/or paging systems, venetian blinds, partitions, railings,
gates, doors, vaults (including vault doors), paneling, molding, shelving,
radiator enclosures, cork, rubber, linoleum, wall-to-wall carpeting, acoustical
tiles, special ceilings, composition floors, ventilating, silencing, air
conditioning and cooling equipment (excepting Tenant's supplemental air
conditioning installed in the Premises by
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Tenant, at Tenant's sole cost and expense), and all fixtures, equipment,
Alterations and appurtenances of a similar nature or purpose attached to or
built into the Premises.
ARTICLE 9
REPAIRS
Section 9.01 TENANT'S OBLIGATIONS.
Tenant, at its sole cost and expense, shall take good care of, and make all
interior non-structural repairs to, the Premises, Building Equipment therein
installed by Tenant at Tenant's expense and Tenant's Property and Fixtures.
Tenant shall make and be responsible for (or, at Landlord's election,, Landlord
shall make at Tenant's expense) all repairs, interior or exterior, as and when
needed to preserve the Premises and the Building Equipment therein and Tenant's
Property and Fixtures in good working order and condition, when the need
therefor arises out of (a) the performance of or existence of Alterations made
by or at the request of Tenant, (b) the installation, use or operation of
Tenant's Property or Fixtures, (c) the moving of Tenant's Property or Fixtures
in or out of the Building or the Premises, (d) the acts, omissions, negligence
or, misuse of or by Tenant or any of its subtenants or any of its or their
employees, agents, contractors, licensees or invitees or their use or occupancy
of the Premises (except fire or other casualty caused by Tenant's negligence, if
the fire or other casualty insurance policies insuring Landlord are not
invalidated and the rights of Landlord are not adversely affected by this
provision), or (e) Legal Requirements or Insurance Requirements pursuant to the
provisions of Section 7.01. Tenant, at its sole cost and expense, shall promptly
replace or repair scratched, damaged or broken doors and glass in and about the
Premises and shall be responsible for all repairs and maintenance of wall and
floor coverings in the Premises (including, without limitation, where Tenant
shall lease an entire floor, the walls, elevator doors and floor coverings in
the elevator lobby). Tenant, promptly and at its sole cost and expense, shall
make all repairs in or to the Premises for which it is responsible. All repairs
made by or on behalf of Tenant shall be made in conformity with the provisions
of Articles 8 and 9 and shall be at least equal in quality and class to the
original work or the then applicable standards for the Building established by
Landlord.
Section 9.02 LANDLORD'S OBLIGATIONS.
Landlord shall operate the Building in a manner consistent with the
standards for first class office buildings in the location in which the Building
is located. Landlord shall make all necessary repairs to keep the Building in
good repair, excluding, however, (a) repairs of Tenant's Property or Alterations
made by or at the request of Tenant, not occasioned by Landlord's wrongful acts
or negligence, and (b) repairs which Tenant is obligated to make pursuant to
Section 9.01 and the other provisions of this Lease. Except to the extent
occasioned by Tenant's acts or negligence or otherwise set forth in Section
9.01, Landlord shall perform all maintenance and make all necessary repairs to
the Building Equipment servicing the Premises. Except for the foregoing, repair
obligation, Landlord shall have no liability for the failure of any such
Building Equipment. The cost of all repairs and maintenance by Landlord
hereunder shall be included in
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Expenses. Tenant shall, at its sole expense, maintain, repair and operate in a
first-class manner, any supplemental air conditioning system and any life safety
or security system which connects to or affects in any manner the Building
Equipment. Landlord reserves the right (a) to make emergency repairs to any such
Tenant's system without notice, at Tenant's expense, and(by to requite changes
to be made by Tenant to any such Tenant's system if the operation thereof
adversely affects the Building Equipment. Tenant shall obtain service contracts
for such Tenant's systems with contractors approved by Landlord (which approval
shall be subject to review from time to time but shall not be unreasonably
withheld or delayed). Tenant shall have no access to Building Equipment unless
Landlord shall consent thereto. No liability of Landlord to Tenant shall accrue
under this Section unless and until Tenant has given notice to Landlord of the
necessity of any specific repair for which Landlord has agreed to be responsible
under this Lease, and a reasonable time has elapsed in which to make such repair
with same not being performed.
ARTICLE 10
HEATING, VENTILATION AND AIR CONDITIONING
Section 10.01 LANDLORD'S OBLIGATIONS.
As long as this Lease is in full force and effect, Landlord shall maintain
and keep in good repair the Building standard ` heating, ventilating and air
conditioning systems servicing the Premises, as above provided, and furnish and
distribute to the Premises sufficient condenser or hot water as may be necessary
to maintain a reasonably comfortable occupancy of the Premises during Business
Hours. The on-floor portion of the heating, ventilating and air conditioning
equipment will be controlled by Landlord, except as provided below. Landlord
agrees to operate the fans, heating, ventilating and air conditioning equipment
servicing the Premises in accordance with their design criteria unless Legal
Requirements, including but not limited to energy and/or water conservation
programs or guidelines, shall provide for any reduction in operations below said
design criteria in which case such equipment shall be operated so as to provide
reduced service in accordance therewith. Tenant shall not be permitted to make
any adjustments to the heating, ventilation and air conditioning equipment
except by use of thermostatic controls within the Premises, which Tenant agrees
to maintain within the range of settings mandated by any Legal Requirements or
governmental standards for temperature or energy related matters. Building
Equipment servicing the Premises shall be subject to Landlord's exclusive
control, except for said thermostatic controls.
Section 10.02 SERVICES DURING NON-BUSINESS HOURS.
The Building windows are sealed. If Tenant shall require heating,
ventilating or air conditioning service at any time other than during Business
Hours, then, provided Tenant is not in default hereunder, Landlord shall furnish
the same upon advance notice from Tenant as set forth in the Rules and
Regulations, and Tenant shall pay Landlord's current charges, without premium,
for such services as Additional Rent upon being billed therefor, provided,
however, if other tenants of the Building are using such services simultaneously
with Tenant, Tenant and
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such other tenant(s) shall each pay their pro-rata share of the cost of such
services to Landlord as Additional Rent.
Section 10.03 TENANT'S SUPPLEMENTAL AIR CONDITIONING.
If Tenant installs supplemental air conditioning equipment, Tenant shall
pay Landlord's charges therefor, without premium, as Additional Rent upon being
billed therefor.
Section 10.04 EXCESSIVE DEMAND.
Notwithstanding the foregoing provisions of this Article, Landlord shall
not be responsible if the normal operation of the Building heating or
ventilating system or the air conditioning system serving the Premises shall
fail to provide service in accordance with the requirements of this Lease in any
portions of the Premises (a) which shall have an electrical load for all
purposes (including lighting and power) in excess of the Building's electrical
specifications, as reasonably determined by Landlord's consulting. engineer, or
which shall have a human occupancy factor in excess of one person per 100 square
feet of usable area, or (b) because of any rearrangement of partitioning or
other Alterations made or performed by or on behalf of Tenant or any person
claiming by, through or under Tenant. Tenant shall cooperate fully with Landlord
at all times and abide by all regulations and requirements which Landlord may
reasonably prescribe for the proper functioning and protection of the heating,
ventilating and air conditioning systems.
ARTICLE II
ELECTRICITY
Section 11.01 LANDLORD'S OBLIGATIONS.
Notwithstanding the fact that the electricity serving the Premises may be
separately submetered or otherwise separately measured, Landlord shall purchase
the electricity for all Tenant's lighting and power, including, without
limitation, the operation of the HVAC unit within the Premises, directly from
the public utility serving the Building. Landlord shall not be liable in any way
to Tenant for any change, failure, inadequacy or defect in the supply or
character of electricity furnished to the Premises except if caused by Landlord
acts or omissions.
Section 11.02 TENANT'S OBLIGATIONS.
Tenant shall be responsible for any repair, maintenance and replacement of
any electric meter, panel board and all wires and wiring within the Premises and
all feeders and risers serving the Premises installed by or at the request of
Tenant, or shall pay Landlord's reasonable charges therefor within thirty (30)
days of receipt of written notice from Landlord. At no time shall Tenant's
connected electrical load in the Premises exceed `the Building's electrical
specifications six (6) xxxxx per square foot for HVAC, six (6) xxxxx per square
foot for Tenant's internal equipment and two (2) xxxxx per square foot for
lighting) without the prior written approval of the Landlord. Any additional
riser or risers to supply Tenant's electrical requirements and all
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other equipment proper and necessary in connection therewith, upon request of
Tenant, will be installed by Landlord, at Tenant's cost and expense, if, in
Landlord's reasonable judgment, the same are necessary and will not cause or
create a hazardous condition or entail excessive or unreasonable alterations,
repairs, or expense, or interfere with or disturb other tenants or operate to
preclude other tenants from expanding their electrical capacity. Rigid conduits
only will be allowed. In order to ensure that such electrical capacity is not
exceeded and to avert possible adverse effects upon the Building's electrical
system, Tenant shall not, without the prior written consent of Landlord, make or
perform or permit any alteration to wiring installations or other electrical
facilities in or serving the Premises or any additions to the electrical
fixtures, business machines, or office equipment or appliances (other than
personal computers and similar low energy consuming office machines) in the
Premises which utilize electrical energy. Landlord shall have the right upon
reasonable notice to Tenant, at any time and from time to time during the Term,
to cause an electrical survey to be made of the Premises to ensure compliance
with the foregoing. Landlord, at its option, before commencing any work to be
paid for by Tenant hereunder or at any time thereafter, may require Tenant to
furnish to Landlord such security, whether by surety bond, issued by a
corporation reasonably satisfactory to Landlord, in form and amount and licensed
to do business in the Commonwealth of Massachusetts or otherwise, as Landlord
shall deem reasonably necessary to assure the payment for such work by Tenant.
Section 11.03 REPLACEMENT LIGHTING.
Landlord shall furnish and install all replacement lighting, tubes, lamps,
starters, bulbs, and ballasts required in the Premises (Landlord shall have the
right to relamp the Building in sequence), and Tenant shall pay to Landlord or
its designated contractor within thirty (30) days of receipt of written notice
from Landlord the then established reasonable charges therefor as Additional
Rent.
ARTICLE 12
CLEANING AND OTHER SERVICES
Section 12.01 CLEANING SERVICES.
Provided Tenant keeps the Premises in reasonably good order, and subject to
Tenant providing Landlord full access to the Premises, including, without
limitation, unrestricted access to the windows, Landlord shall cause the
Premises to be cleaned substantially in accordance with the standards set forth
in Exhibit E. The cost of said cleaning by Landlord hereunder shall be included
in Expenses. Tenant shall pay to Landlord as Additional Rent on demand
Landlord's extra charges for: cleaning work or removal of refuse and rubbish in
the Premises or the Building required because of (a) misuse or neglect on the
part of Tenant or its agents, employees, contractors, licensees or invitees, (b)
any glass surfaces other than exterior Building windows, (c) non-Building
standard materials or finishes installed by Tenant or at its request, (d)
increase in frequency or scope of any of the items set forth in Exhibit E
requested by Tenant, and (e) the use of the Premises by Tenant after Business
Hours. Landlord and its cleaning contractor and their employees shall have ready
access to the Premises at all times except during Business Hours and, to the
extent that it will not unreasonably interfere with the operation of Tenant's
business,
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during Business Hours. If Tenant has a permitted separate area for the storage,
preparation, service or consumption of food or beverages in the Premises,
Tenant, at its sole cost and expense, shall cause all portions of the Premises
so used to be kept in a neat and orderly condition to facilitate the cleaning
thereof and regularly exterminated to prevent infestation with insects or
vermin. Landlord's cleaning services required under this Section may be
furnished by a contractor or contractors employed by Landlord. Landlord shall
not be in default under this Section unless such default shall continue for an
unreasonable period of time after notice from Tenant to Landlord setting forth
the specific and continuing nature of such default.
Section 12.02 ELEVATOR SERVICE.
Landlord, at Landlord's expense, shall furnish necessary elevator service
during Business Hours and shall have an elevator subject to call at all other
times. The Building's service elevator may be a dual use freight and passenger
car. In the event Tenant shall require the use of the Building's service
elevator after hours, subject to scheduling thereof at Landlord's reasonable
discretion, Landlord shall provide a service elevator or passenger elevator, as
the case may be, for the use of Tenant, provided Tenant gives Landlord
reasonable advance notice of the time, the nature of the use to be made of such
elevator and Tenant pays Landlord's charge for the use thereof as Additional
Rent on demand; provided, however, that there shall be no charge for the use of
such elevator at any time before the Commencement Date. Landlord shall have the
right to reasonably change the operation or manner of operating any of the
elevators in the Building and shall have the right to discontinue, temporarily
or permanently, the use of any one or more cars in any of the banks of elevators
provided reasonable elevator service is provided to the Premises.
Section 12.03 WATER.
Landlord shall supply reasonably adequate quantities of hot and cold water
to the Premises for ordinary lavatory, cleaning and drinking purposes. If Tenant
requires, uses or consumes water for any other purpose, Tenant shall pay
Landlord, as Additional Rent on demand, the cost of any water meter and its
installation and of keeping such meter and equipment in good working order and
repair and for water consumed as shown on said meter and all sewer and any other
rent, tax, levy or charge based thereon which now or hereafter is assessed,
imposed or a lien upon the Premises or the Building.
Section 12.04 INTERRUPTIONS IN SERVICE.
Landlord reserves the right to stop, interrupt or reduce service of the
fans, heating, ventilating or air conditioning systems, elevator, electrical
energy, or plumbing or any other service or Building Equipment, because of Legal
Requirements, Force Majeure or for repairs or Alterations, which, in the
reasonable judgment of Landlord, are desirable or necessary, until the reason
for such stoppage, interruption or reduction has been eliminated; provided,
however, Landlord shall provide reasonable notice to Tenant of any interruption
of services required in connection with any Alterations or any work of a
non-emergency nature to be performed by Landlord to the Building or the Building
Equipment. If such interruption in service results in
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Tenant's inability to occupy the Premises for five (5) consecutive business
days, Tenant shall be entitled to an equitable abatement of the rent for such
period commencing on the date of such interruption and ending on the date such
services are effectively restored. Landlord shall have no responsibility or
ability to Tenant for failure to supply any such service or Building Equipment
during such period, but agrees that any such repairs, alterations and
replacements shall be made using reasonable efforts, subject to Force Majeure,
to avoid material interference with the use of the Premises.
Section 12.05 SECURITY.
Landlord shall provide security and lighting for the common areas as is
customarily provided by other first class office buildings similarly located to
the Building in the greater Boston western suburban office building market. If
Landlord adopts a building pass system, Landlord shall furnish passes (with the
cost of said passes to be paid for by Tenant) to persons for whom Tenant
requests the same in writing, and Tenant shall be responsible for all persons to
whom it requests passes and shall be liable to Landlord for all acts of such
persons. Landlord shall in no case be liable for damages for any error with
regard to the admission or exclusion from the Building of any person except for
Landlord or all persons for whom Landlord is responsible.
Section 12.06 SIGNS.
Provided Tenant's signage is consistent with Landlord's reasonable design
standards, building codes, zoning and local signage bylaws, Tenant shall be
permitted to have signage comparable to signage, if any, of other tenants in the
Building, placed in the Building entrance, in the elevator lobbies and on
entrance doors to the Premises.
Section 12.07 OTHER SERVICES.
Landlord will not be required to furnish any services except as expressly
provided in this Lease.
ARTICLE 13
ASSIGNMENT, MORTGAGING AND SUBLETTING
Section 13.01 PROHIBITION.
Neither this Lease nor any part hereof, nor the interest of Tenant in any
sublease or the rentals thereunder, shall, by operation of law or otherwise, be
assigned, mortgaged, pledged, encumbered, or otherwise transferred by Tenant,
Tenant's legal representatives or successors in interest, and neither the
Premises nor any part thereof nor any of Tenant's Property shall be encumbered
in any manner by reason of any act or omission on the part of Tenant, or anyone
claiming under or through Tenant, or shall be sublet or be used, occupied, or
utilized for desk space or for mailing privileges by anyone other than Tenant,
without the prior written consent of
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Landlord, which shall not be unreasonably withheld or delayed, except as
expressly otherwise provided in this Article.
Section 13.02 PERMITTED ASSIGNMENTS AND SUBLEASES.
(a) Subject to the provisions of Sections 13.02(c) and 13.030)
herein, Tenant shall have the right to assign this Lease, or to sublet the
whole or any part of the Premises, to any one or more present or future
corporations or other business entities which directly or through one or
more intermediaries controls, is controlled by, or is under common control
with Tenant (each a "TENANT AFFILIATE"), but only for such periods as such
Tenant Affiliate continues to control, continues to be controlled by or
remains under common control with Tenant, and maintains a net worth not
less than Ten Million ($10,000,000) Dollars. For purposes hereof, "control"
shall mean ownership of not less than eighty percent (80%) of all of the
legal and equitable interest in any other business entity.
(b) Tenant shall also have the right to assign its entire interest
in this Lease, subject to the provisions of Sections 13.02(c) and 13.030)
herein, to: (i) any entity with which Tenant may merge or consolidate,
provided the entity surviving such merger or consolidation assumes in
writing all of the liabilities of Tenant under the Lease and maintains a
net worth of not less than Seven Million Five Hundred Thousand ($7,500,000)
Dollars; or (ii) any entity to which Tenant may sell all or substantially
all the ownership interests in Tenant (e.g., capital stock, LLC membership
interests, etc.) or all or substantially all the assets of Tenant, provided
the purchasing entity assumes in writing all of the liabilities of Tenant
under the Lease and maintains a net worth of not less than Seven Million
Five Hundred Thousand ($7,500,000) Dollars (any of the foregoing permitted
assignees or subleases, including Tenant Affiliates, hereinafter being
referred to as a "PERMITTED ASSIGNEE").
(c) Tenant shall give Landlord thirty (30) days prior written notice
of any proposed assignment or sublease to a Permitted Assignee, including
(i) the name and address of the Permitted Assignee, (ii) a detailed
description of the Permitted Assignee's business, character and financial
references, (iii) a copy of the proposed assignment or sublease including
the proposed effective date thereof, (iv) an agreement by Tenant to
indemnify Landlord against liability resulting from any claims that may be
made against Landlord by the proposed assignee or subleasee, or by any
brokers or other persons claiming a commission or similar compensation in
connection with the proposed assignment or sublease, and (v) sufficient
information for Landlord to determine that the assignment or sublease is to
a Permitted Assignee. To enable Landlord to determine the ownership of
Tenant and any entity which Tenant seeks to have treated as a Permitted
Assignee, Tenant agrees to furnish to Landlord, promptly after Landlord's
request therefor in connection with a proposed assignment or sublease to
such entity, a certificate, summary or listing as to the holders of its
stock and/or the holders of the stock of the Permitted Assignee as of the
date of the execution of this Lease and/or as of the date of Landlord's
request.
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Section 13.03 PROCEDURE.
In the event that at any time Tenant desires to assign or sublet all or any
part of the Premises or to assign its interest in this Lease other than to a
Permitted Assignee, the following procedure will apply:
(a) Tenant shall submit to Landlord the name and address of the
proposed subtenant or assignee, a detailed description of such person's
business, character and financial references (including its most recent
balance sheet and income statements certified by its chief financial
officer or a certified public accountant), and any other information
reasonably requested by Landlord.
(b) Tenant shall submit to Landlord (i) a conformed or photostatic
copy of the proposed executed assignment or sublease, expressly subject to
Landlord's rights hereunder, the effective date of which shall be at least
thirty (30) days after the date of the giving of such notice and which
shall be conditioned on Landlord's consent thereto (which shall not be
unreasonably withheld or delayed), and (ii) an agreement by Tenant to
indemnify Landlord against liability resulting from any claims that may be
made against Landlord by the proposed assignee or subleasee, or by any
brokers or other persons claiming a commission or similar compensation in
connection with the proposed assignment or sublease.
(c) In the case of a proposed sublease for the remainder of the
Term, Tenant shall grant Landlord the option, to be exercised within
fifteen (15) days after receipt of all items to be submitted by Tenant
pursuant to this Section, to cancel and terminate this Lease as to such
portion of the Premises as are proposed to be subleased, to take effect as
of the commencement date of such proposed sublease.
(d) If Tenant's request is for an Assignment of this Lease, or for a
subletting of all or substantially all of the Premises for the remainder of
the Term and which will leave Tenant or its successor corporation and
related corporations in possession of less than fifty percent (50%) of the
original Premises, then Landlord may by notice given to Tenant within
fifteen (15) days after receipt of all items to be submitted to Landlord by
Tenant pursuant to this Section, terminate this Lease on a date to be
specified in said notice ("EARLIER TERMINATION DATE"), which shall be not
earlier than one (1) day before the effective date of the proposed
assignment or subletting, nor later than ten (10) days after said effective
date. Tenant shall then vacate and surrender the Premises on or before the
Earlier Termination Date, and the Term of this Lease as to the entire
Premises shall end on the Earlier Termination Date as if that were the
Expiration Date, or the expiration of a Renewal Term, as applicable.
(e) If Landlord shall elect to terminate this Lease in whole or in
part, Landlord shall be free to, and shall have no liability to Tenant if
Landlord should, lease the Premises (or such part thereof) to Tenant's
prospective assignee or subtenant. If this
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Lease is terminated as to part of the Premises pursuant hereto or part of
the Premises is sublet to Landlord, Tenant shall vacate and surrender such
part of the Premises and (i) Landlord shall, at Tenant's sole cost and
expense, (1) make such alterations as may be required physically to
separate such surrendered space from the remainder of the Premises and to
comply with all Legal Requirements and Insurance Requirements, and install
all other equipment or facilities which may be required in order to use
such sublet portion as a unit separate from the remainder of the Premises
and (2) repair or restore to tenantable condition any part of the remainder
of the Premises which is physically affected by such separation, if
necessary; and (ii) Tenant shall afford Landlord and its tenants reasonably
appropriate means of ingress and egress to and from such surrendered space;
and (iii) in the event of a partial termination Landlord and Tenant shall
execute and deliver a supplementary agreement modifying this Lease, as of
the day following such surrender, by eliminating such surrendered space
from the Premises, reducing the Rent allocable to the remaining Premises
pro rata and appropriately modifying the other terms of this Lease to
reflect the elimination of such surrendered space from the Premises.
(f) In the event Landlord does not exercise its option to terminate
this Lease in whole or in part within the fifteen (15) day period specified
in this Section, Landlord's consent to such subletting or assignment, as
the case may be, shall not be unreasonably withheld or delayed. However,
Landlord shall not, in any event, be obligated to consent to any sublease
or assignment of this Lease unless:
(i) In the reasonable judgment of Landlord, the proposed
subtenant or assignee, as the may be, is of a character and financial
worth such as is in keeping with the reasonable standards of Landlord
in those respects for the Building, and the nature of the proposed
subtenant's or assignee's business and its reputation is in keeping
with the character of the Building and its tenancies;
(ii) The purposes for which the proposed subtenant or assignee
intends to use the Premises or the applicable portion thereof are uses
expressly permitted by this Lease;
(iii) Tenant shall not have advertised or publicized in any way
the availability of all or part of the Premises for less than market
rent without Landlord's consent;
(iv) The proposed occupancy shall not increase the Landlord's
cleaning requirements or impose a disproportionate burden upon the
Building Equipment or Building services;
(v) The proposed sublease or assignment shall prohibit any
assignment or further subletting except in conformity to the
provisions of this Article;
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(vi) Tenant shall not be in default in the performance of any
of its obligations hereunder; and
(vii) The proposed subtenant or assignee shall not then be a
tenant in the Building or a related corporation of any other tenant
(unless Landlord does not have sufficient rentable space in the
Building to meet the proposed subtenant's space requirements), or a
person then negotiating with Landlord for the rental of any space.
(g) In the event that Tenant fails to execute and deliver any
assignment or "sublease to which Landlord shall have consented within
forty-five (45) days after the giving of such consent, then Tenant shall
again comply with all of the provisions and conditions of this Article
before assigning this Lease or subletting all or any part of the Premises.
(h) The consent by Landlord to an assignment, transfer, encumbering,
or subletting pursuant to any provision of this Lease shall not in any way
be deemed consent to any other or further assignment, transfer, encumbering
or subletting.
(i) Tenant shall pay to Landlord all reasonable attorneys' fees and
disbursements incurred by Landlord in connection with any proposed
assignment or sublease, including the costs of making investigations as to
the acceptability of a proposed subtenant or assignee. In furtherance of
the foregoing, Tenant shall pay to Landlord at the time it submits the
items required by this Section a transfer fee of $1,000.00 towards
Landlord's legal and other costs, which shall be payment in full for all
such costs.
(j) No assignment permitted or otherwise consented to by Landlord
shall be valid unless, within ten (10) days after the execution thereof,
Tenant shall deliver to Landlord a duplicate original instrument of
assignment and assumption in form and substance reasonably satisfactory to
Landlord, duly executed by Tenant and by the assignee, in which such
assignee shall assume for the benefit of Landlord the performance of all of
the provisions of this Lease.
Section 13.04 RENT.
Notwithstanding anything to the contrary contained herein, if Landlord
shall consent to any assignment or subletting and Tenant shall either (a)
receive any consideration from its assignee in connection with the assignment of
this Lease, or (b) sublet the Premises to anyone for rents which for any period
shall exceed the rents payable for the subleased space under this Lease for the
same period, Tenant shall pay to Landlord, as Additional Rent, fifty percent
(50%) of such excess consideration less any costs or expenses (including without
limitation brokerage commissions, attorneys' fees and improvement costs)
incurred by Tenant arising out of such sublease or assignment; provided,
however, that there shall be no payment required in the case of an assignment or
sublease to a Permitted Assignee. Tenant shall not enter into any sublease
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whereby the rent received by Tenant depends in whole or in part on the income or
profits derived by any person from the Premises excepting amounts based on a
fixed percentage or percentages of receipts or sales.
Section 13.05 TENANT'S ONGOING LIABILITY.
No assignment, subletting, occupancy, or collection or application of rent
shall be deemed a waiver of any of the provisions of Section 13.01, or the
acceptance of the assignee, subtenant, or occupant as a tenant, or be deemed to
relieve, impair, release, or discharge Tenant of its obligations fully to
perform the terms of this Lease on Tenant's part to be performed.
Section 13.06 NON-DISTURBANCE AND ATTORNMENT.
If Landlord shall recover or come into possession of the Premises before
the date herein fixed for the expiration of this Lease, or in the event of an
occurrence of any of the events specified in Section 16.02(d), Landlord shall
have the right, at its option, to take over any and all subleases of the
Premises or any part thereof made by Tenant and to succeed to all the rights of
Tenant in said subleases or such of them as it may elect to take over. Tenant
hereby expressly assigns and transfers to Landlord such of the subleases as
Landlord may elect to take over at the time of such recovery of possession, such
assignment and transfer not to be effective until the termination of this Lease
or reentry by Landlord hereunder or if Landlord shall otherwise succeed to
Tenant's estate in the Premises, at which time Tenant shall upon request of
Landlord execute, acknowledge and deliver to Landlord such further assignments
and transfers as may be necessary to confirm the vesting in Landlord of the then
existing subleases. Every sublease of all or any portion of the Premises is
subject to the condition, and by its acceptance and entry into a sublease each
subtenant thereunder shall be deemed conclusively to have thereby agreed, that
from and after the termination of this Lease or reentry by Landlord hereunder,
or if Landlord shall otherwise succeed to Tenant's estate in the Premises, such
subtenant shall waive any right to surrender possession or to terminate the
sublease, and, at Landlord's election, such subtenant shall attorn to and
recognize Landlord as its landlord under all of the then executory terms of such
sublease, except that Landlord shall not (a) be liable for any previous act,
omission, or negligence of Tenant as sublandlord under such sublease, (b) be
subject to any counterclaim or offset which theretofore accrued to such
subtenant against Tenant, (c) be bound by any previous modification or amendment
of such sublease or by any previous prepayment of more than one (1) month's rent
and additional rent which shall be payable as provided in the sublease, (d) be
obligated to repair the subleased space or the Building or any part thereof, in
the event of total or substantial total damage or in the event of partial
condemnation or (e) be obligated to perform any work in the subleased space, and
the subtenant shall execute and deliver to Landlord any instruments Landlord may
reasonably request to evidence and confirm such attornment. Each subtenant or
licensee of Tenant shall be deemed automatically, upon and as a condition of
occupying or using the Premises or any part thereof, to have given a waiver of
the type described in and to the extent and upon the conditions set forth in
Section 6.04(b).
Section 13.07 Certain LANDLORD RIGHTS.
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References in this Lease to use or occupancy by anyone other than Tenant
shall include, without limitation, subtenants, licensees and others claiming
under Tenant or under any subtenant, immediately or remotely. The listing of any
name other than that of Tenant on any door of the Premises or on any directory
or in any elevator in the Building, or otherwise, shall not operate to vest in
the person so named any right or interest in this Lease or the Premises, or be
deemed to constitute, or serve as a substitute for, any consent of Landlord
required under this Article, and it is understood that any such listing shall
constitute a privilege extended by Landlord, revocable at Landlord's will by
notice to Tenant unless any such required consent has been obtained.
ARTICLE 14
DAMAGE TO OR DESTRUCTION OF THE PREMISES
Section 14.01 LANDLORD'S OBLIGATION TO REPAIR; RENT ABATEMENT.
If the Premises or any part thereof shall be damaged or rendered
Untenantable by fire or other insured casualty and if Tenant gives prompt notice
thereof to Landlord and this Lease is not terminated pursuant to any provision
of this Article, Landlord shall proceed to repair or cause to be repaired such
damage to the Premises after and to the extent of Landlord's collection of the
insurance proceeds attributable to such damage to the Premises. Except as
provided in Section 6.05 and Section 14.04, the rental shall be equitably abated
to the extent that the Premises shall have been rendered Untenantable, such
abatement to be from the date of such damage to the date the Premises shall no
longer be Untenantable; provided, however, should Tenant occupy a portion of the
Premises during the period the repair work is taking place and prior to the date
the Premises are no longer Untenantable, the rent allocable to such occupied
portion, based upon the proportion which the occupied portion of the Premises
bears to the Premises Rentable Area, shall be payable by Tenant from the date of
such occupancy.
Section 14.02 TENANT'S RIGHT TO TERMINATE.
If the Premises shall be materially damaged or rendered substantially
Untenantable by fire or other casualty, Landlord has not terminated this Lease
pursuant to Section 14.03 and Landlord has not substantially completed the
making of the required repairs to the Premises within nine (9) months from the
date of the fire or other casualty, plus such additional time after such date as
shall equal the aggregate period Landlord may have been delayed in doing so by
Force Majeure (but not to exceed an additional three (3) months), Tenant may
serve notice on Landlord of its intention to terminate this Lease, and if thirty
(30) days thereafter Landlord shall not have completed the making of the
required repairs, this Lease shall terminate on the expiration of such thirty
(30) day period as if such termination date were the Expiration Date, or the
expiration of the Renewal Term, as applicable, without prejudice to Landlord's
rights under this Lease.
Section 14.03 LANDLORD'S RIGHT TO TERMINATE.
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If the Premises shall be materially damaged or rendered substantially
Untenantable by fire or other casualty or if the Building shall be so damaged by
fire or other casualty that substantial alteration or reconstruction of the
Building, in Landlord's reasonable, but sole opinion, shall be required (whether
or not the Premises shall have been so damaged), then Landlord, at its option,
may terminate this Lease by giving Tenant sixty (60) days' notice of such
termination, such notice to be given within ninety (90) days after the date of
such fire or other casualty. In the event that such notice of termination shall
be given, this Lease shall terminate as of the date provided in such notice of
termination (whether or not the Term shall have commenced) with the same effect
as if that date were the Expiration Date, or the expiration of the Renewal Term,
as applicable, without prejudice to Landlord's rights under this Lease.
Section 14.04 CERTAIN LANDLORD RIGHTS.
Landlord shall not be liable for any inconvenience to Tenant or injury to
the business of Tenant resulting in any way from any such damage by fire or
other casualty, or the repair thereof Landlord will not carry insurance of any
kind on Tenant's Property, and Landlord shall not be obligated to repair any
damage thereto, or replace the same, or bear any of the risk of loss of Tenant's
Property. Except as expressly provided in Section 6.04, nothing herein contained
shall relieve Tenant from any liability to Landlord or to its insurers in
connection with any damage to the Premises or the Real Property by fire or other
casualty if Tenant is liable in such respect. Notwithstanding any of the
foregoing provisions of this Article, if, by reason of some action or inaction
on the part of Tenant or any of its employees, agents, licensees or contractors,
either (a) Landlord shall be unable to collect all of the insurance proceeds
applicable to damage or destruction or (b) the Premises or the Building shall be
damaged or destroyed on account of fire or other casualty then, without
prejudice to any other remedy which may be available against Tenant, the
abatement of rent provided for in this. Article shall not be effective, subject
to Section 6.04 hereof.
ARTICLE 15
EMINENT DOMAIN
Section 15.01 TOTAL TAKING.
If the whole of the Real Property or the Premises shall be acquired or
condemned by eminent domain, this Lease shall terminate as of the date of the
vesting of title in the condemning authority as if said date were the Expiration
Date or the expiration of the Renewal Term, as applicable.
Section 15.02 PARTIAL TAKING.
If only a part of the Premises shall be acquired or condemned by eminent
domain, then, except as otherwise provided in. this Article, this Lease shall
continue in force and effect, but from and after the date of the vesting of
title, the Fixed Rent shall be an amount which bears the same ratio to the Fixed
Rent payable immediately prior to such condemnation as the value of the untaken
portion of the Premises (appraised after the taking and repair of any damages to
the
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Building pursuant to this Section) bears to the value of the entire Premises
immediately before the taking and any Additional Rent payable shall be adjusted
to reflect the diminution of the Premises. Such value of the Premises before and
after the taking shall be determined by an independent appraiser chosen by
Landlord and reasonably acceptable to Tenant. Pending such determination, Tenant
shall pay to Landlord rent as fixed by Landlord, subject to adjustment after
such determination.
If only a part of the Real Property shall be so acquired or condemned, then
(a) whether or not the Premises shall be affected, Landlord may, within sixty
(60) days following the date of vesting of title, give Tenant thirty (30) days'
notice of termination of this Lease or (b) if more than twenty percent (20%) of
the total area of the then Premises is acquired or condemned, Tenant may, within
sixty (60) days following the date upon which Tenant shall have received notice
of vesting of title, give to Landlord thirty (30) days' notice of termination of
this Lease. In the event any such thirty (30) day notice of termination is given
by Landlord or Tenant, this Lease shall terminate upon the expiration of said
thirty (30) days with the same effect as if that date were the Expiration Date,
or the expiration of the Renewal Term, as applicable, without prejudice to
Landlord's rights against Tenant under this Lease in effect prior to such
termination, and the rental shall be apportioned as of such date or sooner
termination.
If a part of the Premises shall be acquired or condemned by eminent domain
and this Lease is not terminated pursuant to any provision of this Article,
Landlord shall proceed to repair .. or cause, to be repaired such damage to the
Premises to the extent permissible by Legal Requirements and the taking
authority and to the extent of Landlord's collection of the award for such
acquisition or condemnation. Except as provided in Section 6.05 and the
applicable portions of Section 14.04, the rental shall be equitably abated to
the extent that the Premises shall have been rendered Untenantable, such
abatement to be from the date of such condemnation or taking to the date the
Premises shall be restored pursuant to the terms of this Section 15.02;
provided, however, should Tenant occupy a portion of the Premises during the
period the repair work is taking place, the rent allocable to such occupied
portion, based upon the proportion which the occupied portion of the Premises
bears to the Premises Rentable Area, shall be payable by Tenant from the date of
such occupancy. If the entire Premises cannot be repaired pursuant to this
Section 15.02, the rental after the completion of any repairs shall be
determined pursuant to the first paragraph of this Section 15.02.
Section 15.03 AWARD.
In the event of any such acquisition or condemnation of all or any part of
the Real Property, Landlord shall receive the entire award for any such
acquisition or condemnation. Tenant shall have no claim against Landlord or the
condemning authority for the value of any unexpired portion of the Term and
agrees not to join in any claim made by Landlord and to execute all further
documents that may be required in order to facilitate the collection of the
award by Landlord. Landlord shall have the right, coupled with an interest, to
sign such further documentation on behalf of Tenant. Tenant shall, however,
retain the right to make a separate claim for its moving expenses and personal
property taken, and the unamortized cost of any Alterations, the cost of which
has been paid by Tenant.
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Section 15.04 TEMPORARY TAKING.
If the temporary use or occupancy of all or part of the Premises shall be
condemned or taken, this Lease shall remain unaffected by such condemnation or
taking and Tenant shall continue to be responsible for all of its obligations
hereunder (except to the extent prevented from so doing by reason of such
condemnation or taking) and it shall continue to pay all Fixed and Additional
Rent in full. Any lump sum award received by Tenant as compensation for
temporary use and occupancy of the Premises shall be delivered to and held by
Landlord in trust for the making of rent payments. The rights and interests of
Landlord and Tenant to any award received or receivable with respect to a
condemnation or taking for temporary use or occupancy shall be in all other
respects governed by the applicable provisions of the Superior Lease and/or any
Superior Mortgage.
Section 15.05 AGREEMENT IN LIEU OF TAKING.
The terms "CONDEMNATION" and "ACQUISITION" as used herein shall include any
agreement in lieu of or in anticipation of the exercise of the power of eminent
domain between Landlord and any governmental authority authorized to exercise
the power of eminent domain. Landlord shall notify Tenant forthwith of any
condemnation or acquisition affecting the Premises.
ARTICLE 16
DEFAULT
Section 16.01 TENANT'S PERFORMANCE A CONDITION.
Tenant's performance of each of Tenant's obligations under this Lease is a
condition as well as a covenant. Tenant's right to continue in possession of the
Premises is conditioned upon such performance.
Section 16.02 EVENTS OF DEFAULT.
Each of the following shall be an "Event of Default" under this Lease:
(a) if Tenant shall default in the payment when due of any Fixed Rent or
Additional Rent and such default shall continue for a period of five (5) days
after notice of default from Landlord to Tenant; or
(b) if Tenant shall default in the payment when due of any Fixed Rent or
Additional Rent, and any such default shall continue or be repeated for two (2)
consecutive payments or for a total of three (3) payments in any twelve (12)
month period, and notwithstanding that such defaults shall have each been cured
within five (5) days of said notice from Landlord to Tenant; or
(c) if Tenant shall default in the performance of any term of this Lease
on Tenant's part to be performed (other than the payment of Fixed Rent and
Additional Rent) and Tenant
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shall fail to remedy such default within thirty (30) days after notice of such
default, or if such default is of such a nature that it cannot be completely
remedied within said period of thirty (30) days if Tenant shall not (i) promptly
upon the giving by Landlord of such notice, advise Landlord of Tenant's
intention to institute all steps necessary to remedy such situation, (ii)
promptly institute and thereafter diligently prosecute to completion all steps
necessary to remedy the same, and (iii) complete such remedy within a reasonable
time after the date of the giving of said notice by Landlord and in any event
prior to such time as would either (1) subject Landlord, Landlord's agents, any
Superior Lessor or any Superior Mortgagee to prosecution for a crime or (2) in
Landlord's reasonable judgment, constitute or result in any material risk of
material economic loss to Landlord; or
(d) if (i) Tenant shall make a general assignment or general arrangement
for the benefit of creditors, (ii) a petition for adjudication of bankruptcy or
for reorganization or rearrangement shall be filed by or against Tenant and
shall not be dismissed within ninety (90) days, or (iii) a trustee or receiver
shall be appointed to take possession of substantially all of Tenant's assets
located at the Premises or Tenant's interest in this Lease and possession shall
be subjected to attachment, execution or other judicial seizure which shall not
be discharged within ninety (90) days. If a court of competent jurisdiction
shall determine that any of the acts described in subsection (iii) of this
subsection (d) is not a default under this Lease, and a trustee shall be
appointed to take possession (or if Tenant shall remain a debtor in possession)
and such trustee or Tenant "shall assign, sublease or transfer Tenant's interest
hereunder, then Landlord shall receive, as Additional Rent, the excess, if any,
of the Rent (or any other consideration) paid in connection with such
assignment, transfer or sublease over the Rent payable by Tenant under this
Lease; or
(e) if any event shall occur or any contingency shall arise whereby this
Lease or the estate hereby granted or the unexpired balance of the Term would,
by operation of law or otherwise, devolve upon or pass to any person other than
Tenant except as is expressly permitted under Article 13; or
(f) if the Premises shall become deserted or abandoned for a period of
thirty (30) consecutive days or if Tenant shall fail to take occupancy of the
Premises within forty-five (45.) days after the Commencement Date.
ARTICLE 17
REMEDIES OF LANDLORD
Section 17.01 TERMINATION.
Upon the occurrence of an Event of Default, Landlord may give to Tenant
notice of intention to terminate this Lease and to end the Term and the estate
hereby granted on the date of the giving of notice, and, in the event such
notice is given, this Lease and the Term and estate hereby granted (whether or
not the Term shall have commenced) shall terminate with the same effect as if
that day were the Expiration Date, or the expiration of the Renewal Term, as
applicable, but Tenant shall remain liable for damages as provided in this
Article 17.
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Section 17.02 RE-ENTRY AND RELETTING.
Upon the occurrence of an Event of Default:
(a) Landlord and Landlord's agents may immediately, or at any time after
such Event of Default or after the date upon which this Lease and the term shall
terminate, reenter the Premises or any part thereof, without notice, either by
summary proceedings or by any other applicable action or proceeding or by force
or otherwise (without being liable to indictment, prosecution or damages
therefor), and may repossess the Premises and dispossess Tenant and any other
persons from the Premises and remove any and all of its or their property and
effects from the Premises, without liability for damage thereto, to the end that
Landlord may have, hold and enjoy the Premises, and in no event shall reentry be
deemed an acceptance of surrender of this Lease; and
(b) Landlord, at its option, may relet the whole or any part of the
Premises from time to time, either in the name of Landlord, Tenant or otherwise,
to such tenant or tenants, for such term or terms ending before, on or after the
Expiration Date, or the expiration of the Renewal Term, as applicable, at such
rental or rentals and upon such other conditions, which may include concessions
and free rent periods, as Landlord in its sole discretion may determine.
Landlord shall use reasonable efforts, as required by applicable Legal
Requirements, to relet the Premises or any part thereof, and to otherwise
mitigate its damages, provided, however, Landlord's inability to collect rent
upon any such reletting, shall not operate to relieve Tenant of any liability
under this Lease, or otherwise to affect any such liability. Landlord, at
Landlord's option, may make such repairs, Alterations and other physical changes
in and to the Premises as Landlord, in its sole discretion, considers advisable
or necessary in connection with any such reletting or proposed reletting,
without relieving Tenant of any liability under this Lease or otherwise
affecting any such liability.
Tenant, on its own behalf and on behalf of all persons claiming through or
under Tenant, including all creditors, does hereby expressly waive, so far as is
permitted by law, any and all rights which Tenant and all such persons might
otherwise have to (a) the service of any notice of intention to reenter or to
institute legal proceedings to that end, (b) redeem the Premises or any interest
therein, (c) re-enter or repossess the Premises, or (d) restore the operation of
this Lease, after Tenant shall have been dispossessed by a judgment or by a
warrant of any court or judge, or after any reentry by Landlord, or after any
termination of this Lease, whether such dispossess, reentry by Landlord or
termination shall be by operation of law or pursuant to the provisions of this
Lease. The word "RE-ENTER", "REENTRY" and "RE-ENTERED" as used in this Lease
shall not be deemed to be restricted to their technical legal meanings.
Section 17.03 EQUITABLE REMEDIES.
In the event of any breach or threatened breach by Tenant or any person
claiming through or under Tenant of any of the terms of this Lease, Landlord
shall be entitled to seek to enjoin such breach or threatened breach and shall
have the right to invoke any right allowed at ..law or
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in equity, by statute or otherwise, as if reentry, summary proceedings or other
specific remedies were not provided for in this Lease.
Section 17.04 TENANT'S LIABILITY FOR DAMAGES.
If this Lease shall terminate as provided in this Article 17, or by or
under any summary proceeding or any other action or proceeding, or if Landlord
shall reenter the Premises as provided in this Article, or by or under any
summary proceeding or any other action or proceeding, then, in any of said
events:
(a) Tenant shall pay to Landlord all rent to the date upon which this
Lease shall have been terminated or to the date of reentry upon the Premises by
Landlord, as the case may be;
(b) Landlord shall be entitled to retain all monies, if any, paid by
Tenant to Landlord, whether as advance rent, security or otherwise, but such
monies shall be credited by Landlord against any rent due at the time of such
termination or reentry or, at Landlord's option, against any damages payable by
Tenant;
(c) Tenant shall be liable for and shall pay to Landlord, as damages, any
deficiency between the rent payable hereunder for the period which otherwise
would have constituted the unexpired portion of the Term (conclusively presuming
the Additional Rent to be the same as was payable for the year immediately
preceding such termination or reentry) and the net amount, if any, of rents
("NET RENT") collected under any reletting effected pursuant to the provisions
of Section 17.02 for any part of such period (first deducting from the rents
collected under any such reletting all of Landlord's reasonable expenses in
connection with the termination of this Lease or Landlord's reentry upon the
Premises and in connection with such reletting including all reasonable
repossession costs, brokerage commissions, legal expenses, alteration costs and
other expenses of preparing the Premises for such reletting);
(d) Any deficiency in accordance with subsection (c) above shall be paid
in monthly installments by Tenant on the days specified in this Lease for the
payment of installments of Fixed Rent. Landlord shall be entitled to recover
from Tenant each monthly deficiency as the same shall arise and no suit to
collect the amount of the deficiency for any month shall prejudice Laodlord's
right to collect the deficiency for any prior or subsequent month by a similar
proceeding. Alternatively, suit or suits for the recovery of such deficiencies
may be. brought by Landlord from time to time at its election;
(e) Whether or not Landlord shall have collected any monthly deficiencies
as aforesaid, Landlord shall be entitled to recover from Tenant, and Tenant
shall pay Landlord, on demand, as and for liquidated and agreed final damages
and not as a penalty, a sum equal to the amount by which the Fixed Rent and
Additional Rent payable hereunder for the period to the Expiration Date, or the
expiration of the Renewal Term, as applicable, from the earlier of (i) the last
date to which all rental payments have been made, or (ii) the latest of the date
of termination of this Lease, the date of reentry, or the date through which
monthly deficiencies shall have been paid in full (conclusively presuming the
Additional Rent to be the same as payable for the year
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immediately preceding such termination or reentry), exceeds the then fair and
reasonable rental value of the Premises for the same period, both discounted at
the prevailing interest rate to present worth; and
(f) In no event shall Tenant be entitled (i) to receive any excess of any
Net Rent under subsection (c) over the sums payable by Tenant to Landlord
hereunder or (ii) in any suit for the collection of damages pursuant to this
Section, to a credit in respect of any Net Rent from a reletting except to the
extent that such Net Rent is actually received by Landlord prior to the
commencement of such suit. If the Premises or any part thereof should be relet
in combination with other space, then proper apportionment on a square foot area
basis shall be made of the rent received from such reletting and the expenses of
reletting.
Section 17.05 LANDLORD'S FEES AND EXPENSES.
In the event of an Event of Default, Tenant shall also be liable for all
legal and other experts' fees and expenses reasonably paid or incurred by
Landlord, whether directly or indirectly, in having any court determine that
this Lease is terminated, or in Landlord's recovering possession of the
Premises, or in Landlord's appearing in any court, or in Landlord's being a
party to any appeal(s) from any such court's determination.
Section 17.06 RIGHTS CUMULATIVE.
Each right of Landlord provided for in this Lease shall be cumulative and
shall be in addition to every other right provided for in this Lease or now or
hereafter existing at law or in equity. The exercise or beginning of the
exercise by Landlord of any one or more of such rights shall not preclude the
exercise by Landlord of any other rights provided for in this Lease or now or
hereafter existing. Nothing herein contained shall be construed as limiting the
recovery by Landlord against Tenant of any sums or damages to which Landlord may
lawfully be entitled by reason of any default hereunder.
Section 17.07 RIGHTS OF BANKRUPTCY TRUSTEE.
Without limiting any of the provisions of Section 17.01, if pursuant to the
Federal Bankruptcy Code Tenant is permitted to assign this Lease in disregard of
the restrictions contained in Article 13 (or if this Lease shall be assumed by a
trustee) the trustee or assignee shall cure any default under this Lease and
shall provide adequate assurance of future performance by the trustee or
assignee, including (a) the source of payment of rent and performance of other
obligations under this Lease, for which adequate assurance shall mean the
deposit of cash security with Landlord in an amount equal to the sum of one
year's Fixed Rent then reserved hereunder plus an amount equal to all Additional
Rent payable under Article 4 and other provisions of this Lease for the Calendar
Year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord, without interest, for the
balance of the Term as security for the full and faithful performance of all of
the obligations under this Lease on the part of Tenant yet to be performed and
that any such assignee of this Lease shall have a net worth exclusive of good
will, computed in accordance with generally
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accepted accounting principles, equal to at least ten (10) times the aggregate
of the annual Fixed Rent reserved hereunder plus all Additional Rent for the
preceding Calendar Year as aforesaid and (b) that the use of the Premises shall
in no way diminish the reputation of the Building as a first-class office
building or impose any additional burden upon the Building Equipment or increase
the services to be provided by Landlord. If all defaults are not cured and such
adequate assurance is not provided within sixty (60) days after there has been
an order for relief under the Bankruptcy Code, then this Lease shall be deemed
rejected, Tenant or any other person in possession shall vacate the Premises,
and Landlord shall be entitled to retain any rent or security deposit previously
received from Tenant and shall have no further liability to Tenant or any person
claiming through Tenant or any trustee. If Tenant receives or is to receive any
valuable consideration for such an assignment of this Lease, such consideration,
after deducting therefrom (i) the brokerage commissions, if any, and other
expenses reasonably incurred by Tenant for such assignment and (ii) any portion
of such consideration reasonably designated by the assignee as paid for the
purchase of Tenant's Property in the Premises, shall be and become the sole
exclusive property of Landlord and shall be paid over to Landlord directly by
such assignee.
ARTICLE 18
CURING TENANT'S DEFAULTS; APPLICATION OF PAYMENTS
Section 18.01 LANDLORD'S OPTION TO CURE.
If Tenant shall default in the performance of any term of this Lease on
Tenant's part to be performed, Landlord, without thereby waiving such default,
may, but shall not be obligated to, perform the same for the account and at the
expense of Tenant, without notice in case of emergency and upon five (5) days'
prior notice after the expiration of the applicable grace period in all other
cases. Landlord may enter the Premises at any time to cure any default. Bills
for any expenses incurred by Landlord in connection with any such performance or
involved in collecting or endeavoring to collect rent or enforcing or
endeavoring to enforce any rights against Tenant under or in connection with
this Lease or pursuant to law, including reasonable attorneys' fees and any
cost, expense and disbursement involved in instituting and prosecuting summary
proceedings, as well as bills for any property, material, labor or services
provided, furnished or rendered, shall be paid by Tenant as Additional Rent on
demand.
Section 18.02 APPLICATION OF PAYMENTS.
In the event that Tenant is in arrears in payment of rent, Tenant waives
Tenant's right, if any, to designate the items against which any payments made
by Tenant are to be credited and Landlord may apply any payments made by Tenant
to any items Landlord sees fit, irrespective of any designation by Tenant as to
the items against which any such payments shall be credited.
ARTICLE 19
NON-LIABILITY AND INDEMNIFICATION
Section 19.01 LANDLORD'S LIABILITY.
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No owner of the Real Property shall be liable under this Lease except for
breaches of Landlord's obligations occurring while owner of the Real Property.
The obligations of Landlord shall be binding upon the assets of Landlord which
comprise the Real Property but not upon other assets of Landlord. No individual
partner, trustee, stockholder, officer, director, employee, advisor or
beneficiary of Landlord shall be personally liable under this Lease and Tenant
shall look solely to Landlord's interest in the Real Property in pursuit of its
remedies upon an event of default hereunder, and the general assets of Landlord
and its partners, trustees, stockholders, officers, employees, advisors or
beneficiaries shall not be subject to levy, execution or other enforcement
procedure for the satisfaction of the remedies of Tenant. The term "Landlord"
shall mean only the owner at the time in question of the present Landlord's
interest in the Building and in the event of a sale or transfer of the Building
(by operation of law or otherwise), or in the event of the making of a lease of
all or substantially all of the Building, or in the event of a sale or transfer
(by operation of law or otherwise) of the leasehold estate under any such lease,
the grantor, transferor or lessor as the case may be, shall be and hereby is (to
the extent of the interest or portion of the Building or leasehold estate sold,
transferred or leased) automatically and entirely released and discharged, from
and after the date of such sale, transfer or leasing, of all liability in
respect of the performance of any of the terms of this Lease on the part of the
Landlord thereafter to be performed; provided, that the purchaser, transferee or
lessee (collectively "TRANSFEREE") shall be deemed to have assumed such
liability and agreed to perform such terms, subject to the limitations of this
Section 19.01 (and without further agreement between the then parties hereto, or
among such parties and the Transferee) and only during and in respect of the
Transferee's period of ownership of the Landlord's interest under this Lease.
Section 19.02 LIMITATIONS ON LIABILITY.
Except and to the extent a court of competent jurisdiction shall have
determined that Landlord has failed to perform the obligations expressly imposed
upon Landlord hereunder or shall have been negligent, neither any (a)
performance by Landlord, Tenant or others of any repairs or Alterations in or to
the Real Property, Building Equipment or Premises, (b) failure of Landlord or
others to make any such repairs or Alterations, (c) damage to the Building
Equipment, Premises or Tenant's Property, (d) injury to any persons, caused by
other tenants or persons in the Building, or by operations in the construction
of any private, public or quasi-public work, or by any other cause, (e) latent
defect in the Building, Building Equipment or Premises, (f) temporary or
permanent covering or bricking up of any windows of the Premises for any reason
whatsoever including, without Limitation, Landlord's own acts, any Legal
Requirement or any Insurance Requirement, nor (g) inconvenience or annoyance to
Tenant or injury to or interruption of Tenant's business by reason of any of the
events or occurrences referred to in the foregoing subdivisions (a) through (f)
shall impose any liability on Landlord to Tenant. `No representation is made
that the communications or security system, devices or procedures of the
Building will be effective to prevent injury to Tenant or any other person or
damage to, or loss (by theft or otherwise) of any of Tenant's Property or the
property of any other person. Landlord reserves the right to discontinue or
modify such communications or security systems or procedures without liability.
Section 19.03 INDEMNIFICATION.
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Tenant hereby indemnifies Landlord against liability or expense (including
reasonable attorneys fees and disbursements) in connection with or arising from
(a) any default by Tenant in the performance of any provisions of this Lease,
and/or (b) the use or occupancy or manner of use or occupancy of the Premises by
Tenant or any person claiming by, through or under Tenant, and/or (c) any acts,
omissions or negligence of Tenant or any such person, or the contractors,
agents, employees, invitees or licensees of Tenant or any such person, in or
about the Premises or the Real Property either prior to, during or after the
expiration of the Term. Landlord hereby indemnifies Tenant against liability or
expense (including reasonable attorneys fees and disbursements) in connection
with or arising from (a) any default by Landlord in the performance of any
provisions of this Lease, and/or (b) any acts, omissions or gross negligence of
Landlord or any such person, or the contractors, agents, employees, invitees or
licensees of Landlord or any such person, in or about the Premises or the Real
Property. Tenant shall pay to Landlord as Additional Rent sums equal to all
losses and other liabilities referred to in this Section 19.03.
Section 19.04 LIABILITY OF TENANT .
If at any time Tenant shall be comprised of two or more persons, or
Tenant's obligations under this Lease shall have been guaranteed by any person
or Tenant's interest shall have been assigned, the word "Tenant" as used herein
shall mean any one or more of the persons primarily or secondarily liable for
Tenant's obligations under this Lease.
ARTICLE 20
YIELD UP
Section 20.01 YIELD UP.
On the Expiration Date or on the expiration of the Renewal Term, as
applicable, or upon the sooner termination of this Lease or upon any reentry by
Landlord upon the Premises, Tenant shall, at its sole cost and expense, quit,
surrender, vacate and deliver the Premises to Landlord "broom clean" and in good
order, condition and repair except for ordinary wear and tear or damage by fire
or other casualty. Tenant shall remove from the Real Property all of Tenant's
Property and all personal property and personal effects of all persons claiming
through or under Tenant, and shall promptly pay Landlord the reasonable cost to
repair all damage to the Premises and the Real Property occasioned by such
removal.
Section 20.02 ABANDONMENT OF PERSONAL PROPERTY.
Any Tenant's Property or other personal property which shall remain in the
Premises after the termination of this' Lease shall be deemed to have been
abandoned and either may be retained by Landlord as its property or may be
disposed of in such manner as Landlord may see fit; provided, however, that
notwithstanding the foregoing, Tenant will, upon request of Landlord made not
later than twenty (20) days after the termination of the Lease, promptly remove
from the Building any such Tenant's Property or other personal property at
Tenant's own cost and expense. If such Tenant's Property or other personal
property or any part thereof not removed
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shall be sold by Landlord, Landlord may receive and retain the proceeds of such
sale and apply the same, at its option, against the expenses of the sale, moving
and storage, arrears of Parent and any damages to which Landlord may be
entitled. Any excess expense incurred by Landlord in removing or disposing of
such Tenant's Property or other personal property shall be reimbursed to
Landlord by Tenant as Additional Rent on demand.
Section 20.03 INDEMNIFICATION.
If the Premises are not surrendered upon termination of this Lease, Tenant
hereby indemnities Landlord and holds it harmless against any loss and/or
liability resulting from delay by Tenant in so surrendering the Premises,
including, without limitation, any claims made by any succeeding tenant or
prospective tenant founded upon such delay, or any loss of a prospective tenancy
relating to such delay; provided, however, Landlord shall use reasonable efforts
to mitigate its damages in connection with claims which may be made by a
succeeding or prospective tenant.
Section 20.04 HOLDOVER.
In the event Tenant remains in possession of the Premises after the
termination of this Lease without the execution of a new lease, Tenant, at the
option of Landlord without waiving the liability of Tenant specified in Section
20.04, shall be deemed to be occupying the Premises as a tenant from month to
month, at a monthly rental equal to one and one-half times the Fixed Rent and
Additional Rent payable during the last month of the Term, subject to all of the
other terms of this Lease insofar as the same are applicable on a month-to-month
tenancy. After termination of the Lease, Landlord may accept payment from Tenant
as on account for expenses or damages owed to Landlord or Landlord may credit
such payment toward holdover rent, but no such acceptance shall be deemed to
grant a new tenancy to Tenant or to otherwise grant Tenant any right to remain
in the Premises. Notwithstanding the foregoing, if Tenant shall hold over or
remain in possession of any portion of the Premises beyond the expiration or
earlier termination of this Lease, Tenant shall be subject not only to a summary
proceeding and all damages related thereto, but also to Landlord's indemnity
claim pursuant to Section 20.03. All damages to Landlord by reason of such
holding over by Tenant may be the subject of a separate action and need not be
asserted by Landlord in any summary proceedings against Tenant.
Section 20.05 SURVIVAL OF PROVISIONS.
Tenant's obligations under this Article shall survive the termination of
this Lease.
ARTICLE 21
SUBORDINATION AND ATTORNMENT
Section 21.01 SUBORDINATION.
This Lease and all rights of Tenant hereunder are subject and subordinate
in all respects to (a) all present and future ground leases, operating leases,
superior leases, overriding leases and
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underlying leases and grants of term of the Real Property and the Building or
any portion thereof (collectively, including the applicable items set forth in
Subsection (d) of this Section 21.01, the "SUPERIOR LEASE") whether or not the
Superior Lease shall also cover other lands or buildings, (b) all mortgages and
building loan agreements, including leasehold mortgages, which may now or
hereafter affect the Real Property, the Building, the Real Property or the
Superior Lease (collectively, including the applicable items set forth in
Subsections (c) and (d) of this Section 21.01, the "SUPERIOR MORTGAGE"), whether
or not any Superior Mortgage shall also cover other lands or buildings or
leases, (c) each advance made or to be made under any Superior Mortgage, and (d)
all renewals, modifications, replacements, substitutions and extensions of the
Superior Lease and any Superior Mortgage. The provisions of this Section 21.01
shall be self-operative and no further instrument of subordination shall be
required. In confirmation of such subordination, Tenant shall promptly execute
and deliver, at its own cost and expense, any instrument, in recordable form if
requested, that Landlord, the lessor under the Superior Lease (the "SUPERIOR
LESSOR") or the holder of any Superior Mortgage (the "SUPERIOR MORTGAGEE") may
reasonably request to evidence such subordination; and if Tenant fails to
execute, acknowledge or deliver any such instrument within twenty (20) days
after request therefor, Tenant hereby irrevocably constitutes and appoints
Landlord as Tenant's attorney-in-fact, coupled with an interest, to execute,
acknowledge and deliver any such instruments for and on behalf of Tenant. Upon
Tenant's request, Landlord shall deliver to Tenant a non-disturbance agreement
in the form customarily provided by the applicable Superior Lessor or Superior
Mortgagee and executed by Landlord and such Superior Lessor or Superior
Mortgagee. Upon execution of this Lease, Landlord, Tenant and PNC Bank, National
Association will execute a Non-Disturbance, Attornment and Subordination
Agreement, substantially in the form of EXHIBIT F hereto. Landlord represents
that as of the date of this Lease there is no Superior Lessor. Any Superior
Mortgagee may elect that this Lease shall have priority over such Superior
Mortgage and, upon notification thereof by such Superior Mortgagee to Tenant,
this Lease shall be deemed to have priority over such Superior Mortgage, whether
this Lease is dated prior to or subsequent to the date of such Superior
Mortgage. If, in connection with the obtaining, continuing or renewing of
financing for which the Building, Real Property or the interest of the lessee
under the Superior Lease represents collateral, in whole or in part, any bank,
insurance company, pension fund or other lending institution shall request
reasonable modifications of this Lease as a condition of its granting such
financing, Tenant will not unreasonably withhold its consent thereto, provided
that such modifications do not increase the Fixed Rent, materially and adversely
increase the obligations of Tenant hereunder or materially and adversely affect
Tenant's rights hereunder. Tenant agrees that it will take no steps to terminate
this Lease or xxxxx rent payable hereunder without giving each Superior Lessor,
and any Superior Mortgagee requesting same, written notice of any default by
Landlord and the opportunity to cure such default (without any obligation on the
part of any such person to cure such default) within (30) days thereafter or
such longer period as may be reasonably necessary to effect such cure. Tenant
agrees that this Lease shall not terminate or be terminable by Tenant by reason
of any ..termination of a Superior Lease, by summary proceedings or otherwise
and that this Lease shall not be affected in any way whatsoever by any such
proceeding or termination.
Section 21.02 SUCCESSOR LANDLORD.
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If the holder of any Superior Lease or Superior Mortgage shall succeed to
the rights of Landlord under this Lease by possession, foreclosure, deed in lieu
of foreclosure, summary proceedings or otherwise, Tenant shall, without further
instruments of attornment, attorn to such holder. For purposes of this Section
21.02, the term "SUCCESSOR LANDLORD" shall mean and include (a) any person,
including but not limited to any Superior Lessor or Superior Mortgagee, who,
prior to the termination of this Lease, acquires or succeeds to the interest of
Landlord under this Lease through summary proceedings, foreclosure action,
assignment, deed in lieu of foreclosure or otherwise, and (b) the successors and
assigns of any person referred to in clause (a) of this sentence. Upon any
Successor Landlord's so acquiring, or so succeeding to, the interest of Landlord
under this Lease, Tenant shall, at the election and upon the request of the
Successor Landlord, and without further instruments of attornment, fully attorn
to and recognize such Successor Landlord as Tenant's landlord under this Lease
upon the then executory terms of this Lease. No Successor Landlord shall be
bound by any prepayment of rent or additional rent for more than one month in
advance or any amendment or modification of this Lease made without the consent
of such Successor Landlord. Tenant waives the provisions of any statute or rule
of law now or hereafter in effect which may give or purport to give Tenant any
right of election to terminate this Lease or to surrender possession of the
Premises in the event the Superior Lease is terminated. The foregoing provisions
of this Section shall inure to the benefit of any such Successor Landlord, shall
be self-operative, and no further instrument shall be required to give effect to
said provisions. Upon demand of any such Successor Landlord, Tenant agrees to
execute instruments to evidence and confirm the foregoing provisions of this
Section 21.02 satisfactory to any such Successor Landlord. Tenant hereby
constitutes and appoints Landlord attorney-in-fact for Tenant to execute any
such instrument for and on behalf of Tenant, such appointment being coupled with
an interest. Nothing contained in this Section shall be construed to impair any
right otherwise exercisable by any such owner, holder or lessee.
ARTICLE 22
ESTOPPEL AND ERISA CERTIFICATES
Section 22.01 ESTOPPEL CERTIFICATE.
At any time and from time to time upon not less than fifteen (15) days'
prior notice by Landlord or any Superior Lessor or any Superior Mortgagee to
Tenant, Tenant shall, without charge, execute, acknowledge and deliver to
Landlord a statement in writing in recordable form prepared by Landlord
addressed to such party as Landlord may designate or in form reasonably
satisfactory to Landlord certifying (a) that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications), (b) whether
the Tenant has commenced and Fixed Rent and Additional Rent have become payable
hereunder and, if so, the dates to which they have been paid, (c) whether or
not, to the best knowledge of the signer of such certificate, Landlord is in
default in performance of any of the terms of this Lease and, if so, specifying
each such default of which the signer may have knowledge, (d) whether Tenant has
accepted possession of the Premises, (e) whether Tenant has made any uncollected
claim against Landlord under this Lease and, if so, the nature thereof and the
dollar amount, if any, of such claim, (f) whether there exist any offsets or
defenses against enforcement of any of the terms of this Lease upon the part of
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Tenant to be performed and, if so, specifying the same and (g) such further
information with respect to the Lease or the Premises as Landlord may reasonably
request or any Superior Mortgagee or any Superior Lessor may require, it being
intended that any such statement delivered pursuant hereto may be relied upon by
any prospective purchaser of the Real Property or any part thereof or of the
interest of Landlord in any part thereof, by any mortgagee or prospective
mortgagee thereof, by any lessor or prospective lessor thereof, by any lessee or
prospective lessee thereof, or by any prospective assignee of any mortgage or
lease thereof The failure of Tenant to execute, acknowledge and deliver to
Landlord a statement in accordance with the provisions of this Section within
said fifteen (15) day period shall constitute an acknowledgment by Tenant, which
may be relied on by any person who would be entitled to rely upon any such
statement, that such statement as submitted by Landlord is true and correct.
Notwithstanding such acknowledgment, Tenant shall, at Landlord's option, be in
default hereunder for its failure to execute such statement.
Section 22.02 ERISA CERTIFICATE.
Upon execution of this Lease, and periodically thereafter as requested by
Landlord, Tenant agrees to provide Landlord with such information as Landlord
may reasonably require in order to evaluate the compliance of this Lease and
related transactions with the Employee Retirement Income Security Act of 1974,
as amended. The foregoing shall not require Tenant to disclose material of a
confidential or proprietary nature.
ARTICLE 23
ACCESS, CHANGE IN FACILITIES
Section 23.01 RESERVATIONS TO LANDLORD.
All parts (except non-glass surfaces facing the interior of the Premises)
of all walls, windows and doors bounding the Premises, all balconies, atrium
access ways to atria not within any tenant's premises, terraces, stairs,
landings and roofs adjacent to the Premises, all space in or adjacent to the
Premises used for columns, shafts, stacks, stairways, risers, elevator shafts
and machinery, conduits, air. conditioning rooms, telephone rooms, fan rooms,
heating, ventilating, air conditioning, plumbing, electrical and other
mechanical facilities, service closets and other Building Equipment, and the use
thereof, as well as access thereto through the Premises for the purposes of
operation, decoration, cleaning, maintenance, safety, security, alteration and
repair, are hereby exclusively reserved to Landlord. Landlord may install, use,
control and maintain pipes, fans, ducts, wires and conduits within or through
the Premises, or through the walls, columns and ceilings therein, provided that
the installation work will not unreasonably interfere with Tenant's use and
occupancy of the Premises.
Section 23.02 LANDLORD'S RIGHT TO CHANGE COMMON AREAS.
Landlord reserves the right at any time and from time to time to subdivide,
re-subdivide, add to, change, relocate, improve, or demolish all or any portion
of the Real Property, Buildings, common areas, and parking areas so long as
neither the total number of parking spaces available
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to Tenant nor the capacity of the cafeteria or exercise facilities are reduced
(including without limitation the right to add additional floors, to the
Buildings, to build new improvements adjoining the Buildings, to erect one or
more additional buildings on the common areas, to expand the Building to cover a
portion of the common areas, to convert common areas to a portion of the
Building, to convert any portion of the Building to common areas, and to change,
relocate, remove, or designate those parties who may use the lobbies, corridors,
elevators, escalators, and loading docks). Landlord further reserves the right
to enter into a ground lease, or to sell, lease, or finance all or any portion
of the Real Property, Buildings, common areas and parking areas. Landlord may
exercise any of these rights provided any such change (a) does not unreasonably
deprive Tenant of access to the Premises and (b) does not diminish the size of
the Premises or deprive Tenant of the substantial benefit and enjoyment of the
Premises. Landlord's exercise of these rights shall not require Landlord to
compensate Tenant in any way and shall not entitle Tenant to an abatement of
Rent, nor shall it result in any liability to Landlord or in any way affect
Tenant's obligations under this Lease unless otherwise provided in this Lease.
Upon erection or change of the location of the buildings, the portion of
the Real Property on which the buildings or structures have been erected shall
no longer be deemed to be part of the common areas, except to the extent the
building contains common areas. If any changes in the size or use of the
Building or common areas are made, Landlord shall make an appropriate adjustment
in the rentable area of the Building and in Tenant's share of the Expenses
payable pursuant to Article 4 of this Lease.
Section 23.03 LANDLORD'S ACCESS.
Landlord or Landlord's agents (and any Superior Lessor, Superior Mortgagee
and their agents) shall have the right to enter the Premises at all reasonable
times, whether or not during Business Hours, and, except in cases of emergency,
upon reasonable prior notice to Tenant and without unreasonably interfering with
Tenant or its use or enjoyment of the Premises, for any of the purposes
specified in this Lease and (a) to examine the Premises or for the purpose of
performing any obligation of Landlord or exercising any right reserved to
Landlord in this Lease, to the Superior Lessor in the Superior Lease, or to the
Superior Mortgagee in the Superior Mortgage; (b) to exhibit the Premises to
others during the final nine (9) months of the Term; (c) to make or cause to be
made such repairs or Alterations, or to permit electrical or other utility
meters to be read, or to perform such maintenance, including the maintenance of
Building Equipment, as Landlord may deem reasonably necessary; (d) to take into
and store upon the Premises all materials that may be required in connection
with any such repairs, Alterations or maintenance; and (e) to alter, renovate
and decorate the Premises at any time during the Term if Tenant shall have
removed all or substantially all of Tenant's Property from the Premises. If
Tenant, its agents or employees shall not be present or shall not permit an
entry into the Premises at any time when such entry shall be permissible,
Landlord may use a master key to enter the Premises without any liability
therefor. Landlord or Landlord's agents shall have the right to permit access to
the Premises at any time, whether or not Tenant shall be present, to any
receiver, trustee, marshal or other person entitled to, or reasonably purporting
to be entitled to, such access for the purpose of taking possession of, or
removing, any Tenant's Property or property of any other occupant of the
Premises, or for any other lawful purpose, or by any representative of the
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fire, police, building, sanitation or other department or instrumentality of the
municipal, state or federal governments. Nothing contained in, nor any action
taken by Landlord under, this Section shall be deemed to constitute recognition
by Landlord that any person other than Tenant has any right or interest in this
Lease or the Premises.
ARTICLE 24
MISCELLANEOUS
Section 24.01 SECURITY DEPOSIT.
(a) Tenant has deposited with Landlord the Security Deposit as security
for the full, faithful and punctual performance by Tenant of all of the terms of
this Lease, whether in cash or by delivery to Landlord of a clean, irrevocable
letter of credit in the amount of the Security Deposit. In the event Tenant
defaults in the performance of any of the terms of this Lease, including the
payment of Rent, Landlord may use, apply or retain the whole or any part of the
Security Deposit to the extent required for the payment of any Rent or for any
sum which Landlord may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms of this Lease, including any damages or
deficiency in the reletting of the Premises, whether accruing before or after
summary proceedings or other reentry by Landlord. In the case of every such use,
application or retention, Tenant shall, on demand, pay to Landlord the sum so
used, applied or retained which shall be added to the Security Deposit so that
the same shall be replenished to its former amount and Tenant's failure to do so
shall be a material breach of this Lease. Landlord shall keep such deposit
separate from its general accounts in an interest bearing account, which accrued
interest shall be added to the principal amount of the Security Deposit. The
Security Deposit shall not be deemed a limitation on Landlord's damages or a
payment of liquidated damages or a payment of the monthly Rent due for the last
month of the Term of this Lease. The Security Deposit and accrued interest, or
so much of it as has not been applied by Landlord to cure defaults, as described
in this Section 24.01, shall be returned to Tenant together with an itemized
account of any deductions therefrom after the termination of this Lease and
within forty-five (45) days after delivery of exclusive possession of the
Premises to Landlord. In the event of a sale or lease of the Building, Landlord
shall have the right to transfer the Security Deposit to the vendee or lessee
and Landlord shall immediately be released by Tenant from all liability for the
return of such Security Deposit; and Tenant agrees to look solely to the new
owner or landlord for the return of said Security Deposit; and it is agreed that
the provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new owner or landlord. Tenant shall not assign or encumber
or attempt to assign or encumber the monies deposited herein as the Security
Deposit and neither Landlord nor its successors or assigns shall be bound by any
such assignment, encumbrance, attempted assignment or encumbrance. This Lease
does not create a trust relationship between Landlord and Tenant with respect to
such Security Deposit, and Landlord shall be entitled to treat such Security
Deposit as Landlord's own property, subject only to Tenant's right to receive
repayment of it as and to the extent provided in this Section.
(b) If the Security Deposit is in the form of an unconditional,
irrevocable letter of credit, such letter of credit shall be issued by a
financial institution reasonably acceptable to
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Landlord and in the form of Exhibit G hereto. The letter of credit shall be
renewed by Tenant at least thirty (30) days prior to expiration and shall remain
in effect until forty-five (45) days after the scheduled end of the Term of the
Lease, as such Term may be renewed or extended.
(c) On the last day of the third Lease Year and/or on the last day of the
fourth Lease Year, if Tenant meets the Creditworthiness Test set forth in
Section 24.01(d) below, is not in default under the Lease beyond any applicable
grace or cure period, and in particular if Tenant is current in its payment of
all amounts of Fixed Rent and Additional Rent then due, $103,750 of the Security
Deposit shall be refunded to Tenant on each such date, or if the Security
Deposit is in the form of an unconditional, irrevocable letter of credit,
Landlord shall consent to a $103,750 reduction in the amount of said letter of
credit on each such date.
(d) Tenant shall be entitled to reductions in the amount of the Security
Deposit as described in subsection (c), above, if and only if, within thirty
(30) days prior to the expiration of the third and/or fourth Lease Years Tenant
has delivered to Landlord evidence reasonably acceptable to Landlord evidencing
that the Tenant has satisfied the following creditworthiness test (the
"CREDITWORTHINESS TEST"):
(i) If Tenant has rated long-term debt, its current rating must be:
AA or better (if rated by Xxxxx'x Investors Service) and AA or better (if
rated by Standard & Poor's); or
(ii) If Tenant does not have rated long-term debt, Tenant must have:
(1) current stockholder's equity of at least Seven Million Five Hundred
Thousand ($7,500,000) Dollars, (2) current assets of at least Twenty
Million ($20,000,000) Dollars, (3) EBIT of at least Seven Million Five
Hundred Thousand ($7,500,000) Dollars for Tenant's most recently concluded
fiscal year, (4) a current ratio of at least 1.5, and (5) a ratio of Gross
Margin to Revenue of at least 60%.
(e) If Tenant shall have exercised its Renewal Option (as such term is
defined in Section 26.01 hereof), as a condition of the commencement of the
Renewal Term, and provided that Tenant continues to meet the Creditworthiness
Test, the Security Deposit, as it may have been reduced pursuant to this Section
24.01, shall continue to be held by Landlord pursuant to the terms of this
Section 24.01 (a), and shall not be further reduced. If Tenant does not meet the
Creditworthiness Test upon commencement of the Renewal Term, Tenant shall
increase the Security Deposit as reasonably required by Landlord.
Section 24.02 NOTICES.
Whenever, by the terms of this Lease, notices, consents or approvals shall
or may be given either to Landlord or to Tenant, they shall be in writing and
shall be: (a) sent by United States Postal Service, certified mail, return
receipt requested, (b) sent by any nationally known overnight delivery service
for next business day delivery, (c) delivered in person to an authorized
officer. All notices shall be addressed to the parties at the addresses below:
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(a) If intended for Landlord, addressed to Landlord at Landlord's Address
for Notices set forth on page one of this Lease, with a copy to Xxxxx & Xxxxxx
PC, 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, XX 00000 (or. to such other address
as may from time to time hereafter be designated by Landlord by like notice).
(b) If intended for Tenant, addressed to Tenant at Tenant's Address for
Notices set forth on page one of this Lease until the Commencement Date and
thereafter to the Premises (or to such other address or addresses as may from
time to time hereafter be designated by Tenant by like notice).
Section 24.03 QUIET ENJOYMENT.
If, and so long as, Tenant pays the rent and keeps, observes and performs
each and every provision of this Lease on the part and on behalf of Tenant to be
kept, observed and performed, Tenant shall peaceably and quietly enjoy the
Premises throughout the Term without hindrance by Landlord or any person
lawfully claiming through or under Landlord, subject to the terms of this Lease
and, following the succession of any Superior Lessor or Superior Mortgagee to
the interest of Landlord, to the rights of any Superior Lessor and/or any
Superior Mortgagee, as they may be modified by a nondisturbance agreement
between Tenant and any such Superior Lessor or Superior Mortgagee.
Section 24.04 RULES AND REGULATIONS.
Tenant and its employees, agents, invitees, legal representatives and
licensees shall faithfully observe and strictly comply with, and shall not
permit violation of, the Rules and Regulations and such reasonable changes
therein as Landlord hereafter may make and communicate to Tenant. Tenant's right
to dispute the reasonableness of any additional Rules and Regulations shall be
deemed waived unless asserted to Landlord within twenty (20) days after Landlord
shall have given Tenant notice of the adoption of any such additional Rules and
Regulations. In case of any conflict or inconsistency between the provisions of
the Rules and Regulations and the provisions of this Lease, the provisions of
this Lease shall control. Landlord shall have no duty or obligation to enforce
any Rule or Regulation, or any term, covenant or condition of any other lease,
against any other tenant; provided, however if said Rules and Regulations are
enforced by Landlord they shall be applied and enforced against all tenants of
the Building in a nondiscriminatory fashion. Any consent, approval or the like
required pursuant to said Rules and Regulations shall not be unreasonably
withheld or delayed.
Section 24.05 NOTICE OF ACCIDENTS.
Tenant shall give notice to Landlord, promptly after Tenant learns thereof,
of any accident, emergency, occurrence for which Landlord might be liable, fire
or other casualty and all damages to or defects in the Premises, the Building or
the Building Equipment, for the repair of which Landlord might be responsible or
which constitutes Landlord's property. Such notice shall be given by facsimile
or personal delivery to the address of Landlord then in effect for notices.
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Section 24.06 NO REPRESENTATIONS.
Tenant expressly acknowledges that neither Landlord nor any of Landlord's
agents has made or is making, and Tenant, in executing and delivering this
Lease, is not relying upon, any warranties, representations, renderings,
promises or statements, except to the extent that the same are expressly set
forth in this Lease, and no rights, easements or licenses are or shall be
acquired by Tenant by implication or otherwise unless expressly set forth in
this Lease. Without limiting the generality of the foregoing, Tenant expressly
acknowledges that neither Landlord nor any of Landlord's agents has made or is
making, any warranties or representations concerning any hazardous materials, or
other environmental matters affecting any part of the Real Property and Landlord
hereby expressly disclaims and Tenant waives any express or implied warranties
with respect to any such matter.
Section 24.07 BROKERAGE.
Tenant represents to Landlord and Landlord represents to Tenant that in the
negotiation of this Lease it/they dealt with no broker other than Broker (whose
fees shall be payable by Landlord) and no other brokers participated in bringing
about this Lease. Tenant and Landlord hereby indemnify each other and agrees to
defend and hold each other harmless from and against any claim or liability
arising out of any inaccuracy or alleged inaccuracy of the above representation.
Section 24.08 CONSENTS.
Whenever Tenant requests Landlord to take any action or give any consent
required or permitted under this Lease, Tenant shall reimburse Landlord, in an
amount up to $1,000 for each such request for action or consent, for all of
Landlord's reasonable costs incurred in reviewing the proposed action or
consent, including, without limitation, reasonable attorneys', engineers' or
architects' fees, on demand, as Additional Rent. Tenant shall be required to
make such reimbursement without regard to whether Landlord consents to any
proposed action.
Section 24.09 LEASE NOT TO BE RECORDED, NOTICE OF LEASE.
At the request of either party, Landlord and Tenant shall promptly execute,
acknowledge and deliver a notice or short form of this Lease sufficient for
recording. Such notice shall not in any circumstance be deemed to change, or be
deemed a construction of this Lease, or, in the event of conflict, control or
otherwise affect any of the terms of this Lease. Tenant agrees not to record
this Lease (whether directly or indirectly) or any other document related hereto
other than any such notice.
Section 24.10 INABILITY TO PERFORM.
This Lease and the obligations of Tenant to pay rent and perform all of the
terms of this Lease on the part of Tenant to be performed shall in no way be
affected because Landlord is
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unable or delayed in fulfilling any of its obligations under this Lease by
reason of Force Majeure. Landlord shall be under no obligation to employ
overtime labor in order to satisfy any of Landlord's obligations under this
Lease.
Section 24.11 WAIVER.
In the event Landlord commences any summary proceeding (whether for
nonpayment of rent, or for Tenant's holding over, or otherwise), or an ejectment
action to recover possession of the Premises, or other action for nonpayment of
rent, Tenant covenants and agrees that it will not interpose any counterclaim
(excepting compulsory counterclaims) in any such action or proceeding, or seek
by consolidation or otherwise to interpose any counterclaim. To the extent
permitted by applicable law, Tenant hereby waives trial by jury and agrees that
Tenant will not interpose any counterclaim (excepting compulsory counterclaims)
or prosecute any independent claim of whatsoever nature or description in any
matter whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, or Tenant's use or occupancy of the
Premises, any claim of injury or damage, or any emergency or other statutory
remedy with respect thereto. Any claim that Tenant may have against Landlord
shall be separately prosecuted. The provisions of this Section 24.12 shall
survive the breach or termination of this Lease.
Section 24.12 NO OTHER WAIVER.
The failure of Landlord or Tenant to insist in any instance upon the strict
performance of any term of this Lease, or to exercise any right herein
contained, shall not be construed as a waiver or relinquishment for the future
of the performance of such obligation or such right, but the same shall continue
and remain in full force and effect with respect to any continuance thereof or
any subsequent breach, act or omission.
The following specific provisions of this Section shall not limit the
generality of the provisions of this Section:
(a) No agreement to accept a surrender of all or any part of the Premises
or this Lease shall be valid unless in writing and signed by Landlord. No
delivery of keys to the Premises by Tenant to Landlord shall operate as a
termination of this Lease or a surrender of the Premises or this Lease. Without
limiting the generality of the preceding sentences, if, subject to the
provisions of Article 13, Tenant shall at any time request Landlord to sublet
the Premises for Tenant's account, Landlord or Landlord's agent is authorized to
receive said keys for such purpose without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases Landlord from any
liability for loss or damage to any of Tenant's Property in connection with such
subletting, unless said loss or damage is caused by Landlord's gross negligence
or willful misconduct.
(b) The receipt or acceptance by Landlord of Rent with knowledge of
breach by Tenant of any term of this Lease shall not be deemed a waiver of such
breach.
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(c) No payment by Tenant or receipt by Landlord of a lesser amount than
the correct rent shall be deemed to be other than a payment on account, nor
shall any endorsement or statement on any check or any accompanying letter be
deemed to effect or evidence an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance or pursue any other right of Landlord.
Section 24.13 SUCCESSORS AND ASSIGNS.
The obligations of this Lease shall run with the land, and this Lease shall
be binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and assigns.
Section 24.14 AUTHORITY.
Landlord and Tenant each represent to the other that it has fall power and
authority to execute this Lease and to make and perform the agreements herein
contained.
Section 24.15 ENTIRE AGREEMENT.
This Lease contains the entire agreement between the parties and all prior
negotiations and agreements are merged into this Lease, which alone fully and
completely expresses the agreement between Landlord and Tenant. This Lease may
not be changed, modified, terminated or discharged, in whole or in part, nor any
of its provisions waived except by a written instrument (unless expressly
permitted by the terms of this Lease) which (a) expressly refers to this Lease,
(b) is subscribed to by the party against whom enforcement of the change,
modification, termination, discharge or waiver is sought and (c) is permissible
under any Superior Mortgage and the Superior Lease, and is approved by any
Superior Mortgagee or Superior Lessor if required by the terms of any Superior
Mortgage or Superior Lease. In no event shall this Lease be binding upon the
Landlord unless and until this Lease shall have been executed and acknowledged
by Tenant and Landlord and unconditionally exchanged by and between Landlord and
Tenant. Without limiting the foregoing, all drafts and redrafts of this Lease,
memoranda with respect thereto, exchanges of correspondence between Landlord and
Tenant and their respective representatives, brokers' statements, exchanges of
floor plans, Tenant's drawings and specifications, Landlord's drawings and
specifications, or any combination thereof, arising out of or with respect to
any space in the Building shall not constitute an agreement to lease or a lease
between Landlord and Tenant.
Section 24.16 GOVERNING LAW.
This Lease shall be governed in all respects by the internal laws of the
Commonwealth of Massachusetts without reference to the choice of law or conflict
of law provisions thereof.
Section 24.17 FINANCIAL STATEMENTS.
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Tenant agrees to deliver its financial statements to Landlord at Landlord's
request .,following Tenant's default or in connection with the proposed sale,
syndication or mortgaging of the Building and Real Property, subject in each
case to execution and delivery by Landlord and any prospective buyer, investor
or lender of a Confidentiality Agreement equivalent to that between the Tenant
and Xxxxxxxxx and Co., Inc. dated September 25, 1998. All financial statements
heretofore delivered to Landlord by Tenant are, and all financial statements
hereafter delivered to Landlord by Tenant will be, true and correct in all
material respects and fair presentations of the financial condition of Tenant as
of the date thereof, prepared in accordance with generally accepted accounting
practices. As of the effective date of this Lease, no material adverse change
has occurred in the financial condition of Tenant since the date of the
financial statements heretofore delivered to Landlord.
Section 24.18 NO THIRD PARTY BENEFICIARIES.
The provisions of this Lease shall inure to and be enforceable only by the
parties hereto. Such provisions shall not inure to the benefit of or be relied
upon by any other party.
ARTICLE 25
DEFINITIONS; CONSTRUCTION OF TERMS
Section 25.01 CERTAIN DEFINITIONS.
For the purposes of this Lease and all agreements supplemental to this
Lease each of the following defined terms shall have the meaning specified
therefor:
(a) "BUILDING EQUIPMENT" shall mean all machinery, apparatus, equipment,
personal property, fixtures and systems of every kind and nature whatsoever now
or hereafter attached to or used in connection with the operation or maintenance
of the Real Property, including all electrical, heating, mechanical, sanitary,
sprinkler, utility, power, plumbing, cleaning, fire prevention, refrigeration,
ventilating, air cooling, air conditioning, elevator and escalator systems,
apparatus and equipment and any and all additions, renewals and replacements of
any thereof, but excluding however: (i) Tenant's Property, (ii) property of any
other tenant, (iii) property of contractors servicing the Building and (iv)
Alterations for water, gas, steam and electricity and other similar equipment
owned by any public utility company or any governmental agency or body.
(b) "BUSINESS HOURS" shall mean those hours from 8:00 A.M. to 6:00 P.M.
Monday through Friday and 10:00 A.M. ` to 3:00 P.M. on Saturday except days
observed by the Federal or the state or local governments in the Commonwealth of
Massachusetts as public holidays and such other days as shall be designated,
from time to time, as holidays by the applicable operating engineers union or
building service employees union contract, provided however that the Premises
shall be accessible to Tenant at all times.
(c) "CALENDAR YEAR" shall mean a year beginning January 1 and ending
December 31.
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(d) "INSURANCE REQUIREMENTS" shall mean all requirements of any insurance
policy covering or applicable to all or any part of the Real Property or the
Premises or the use thereof, all requirements of the issuer of any such policy
and all orders, rules, regulations, recommendations and other requirements of
the Board of Fire Underwriters of the location of the Premises or the Insurance
Service office or any other body exercising the same or similar functions and
having jurisdiction or cognizance of all or any part of the Real Property.
(e) "INTEREST RATE" shall mean a rate per annum equal to the lesser of
(i) two percent (2%) above the announced prime commercial lending rate as
reported by the Wall Street Journal, in effect from time to time for ninety (90)
day unsecured loans to customers of the highest credit standing, or (ii) the
maximum applicable legal rate, if any.
(f) "LEASE YEAR" shall mean the period from and after the Commencement
Date through the first twelve (12) months from and after the Commencement Date,
and each subsequent period of twelve (12) months, or part thereof.
(g) "LEGAL REQUIREMENTS" shall mean laws, statutes and ordinances
(including without limitation building codes, zoning regulations and ordinances,
environmental laws and the Americans With Disabilities Act of 1990, as amended)
and the orders, rules, regulations, directives and requirements of all federal,
state, county, and municipal departments, bureaus, boards, agencies, offices,
commissions, and other subdivisions thereof, or of any official thereof, or of
any other governmental, public or quasi-public authority, whether now or
hereafter in force, which may be applicable to the Real Property, Building,
Building Equipment or the Premises or any part thereof or the sidewalks, curbs
or areas adjacent thereto and all requirements, obligations and conditions of
all instruments of record on the date of this Lease.
(h) "TAX YEAR" shall mean a period beginning July 1 and ending June 30.
(i) "TENANT'S PROPERTY" shall mean all fixtures, Improvements, additions
and other property (i) installed at the sole expense of Tenant, (ii) with
respect to which Tenant has not been granted any credit, concession or allowance
by Landlord, (iii) which are removable without material damage to the Premises,
and (iv) which are not replacements of any property of Landlord, whether any
such replacement is made at Tenant's expense or otherwise.
(j) "UNTENANTABLE" shall mean, as to any portion (or all) of the
Premises, that Tenant is actually and physically unable to use such portion (or
all) of the Premises in the regular course of its business.
Section 25.02 PROVISIONS SEVERABLE.
If any of the provisions of this Lease, or the application thereof to any
person or circumstance, shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such provision to persons or
circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected thereby, and every provision of this Lease
shall be valid and enforceable to the fullest extent permitted by law.
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Section 25.03 RULES OF CONSTRUCTION.
For the purposes of this Lease and all agreements supplemental to this
Lease, unless the context otherwise requires:
(a) The terms "include", "including" and "such as" shall be construed as
if followed by the phrase "without being limited to". The words "herein,
"hereof', "hereby", "hereunder" and words of similar import shall be construed
to refer to this Lease as a whole and not to any particular Article or Section
unless expressly so stated.
(b) The term "obligations of this Lease" and words of like import, shall
mean the covenants to pay rent and to perform all of the other terms of this
Lease.
(c) Any provision in this Lease that one party or the other or both shall
do or not do or shall cause or permit or not cause or permit a particular act,
condition or circumstance shall be deemed to mean that such party so covenants
or both parties so covenant, as the case may be.
(d) Reference to Landlord as having "no liability to Tenant" or being
"without liability to Tenant" shall mean that Tenant is not entitled to
terminate this Lease, or to claim actual or constructive eviction, partial or
total, or to receive any abatement or diminution of rent, or to be relieved in
any manner of any of its other obligations hereunder, or to be compensated for
loss or injury suffered or to enforce any other right or kind of liability
whatsoever against Landlord under or with respect to this Lease or with respect
to Tenant's use or occupancy of the Premises except as otherwise set forth
herein.
(e) The term "repair" shall be deemed to include restoration, rebuilding
and replacement as may be necessary to achieve and maintain good working order
and condition.
(f) The term "in fall force and effect" when used in reference to this
Lease as a condition to the existence or exercise of a right on the part of
Tenant shall be construed in each instance as including the further condition
that at the time in question no default on the part of Tenant exists, and no
event has occurred which has continued to exist for such period of time (after
notice, if any, required by this Lease), as would entitle Landlord in either
such instance to terminate this Lease or to dispossess Tenant.
(g) The term "the terms of this Lease", "the terms of this Article" or
"the terms of this Section" shall be deemed to include all terms, covenants,
conditions, provisions, obligations, limitations, restrictions, reservations and
agreements of this Lease or such Article or such Section, as the case may be.
(h) The term "Landlord's agents" shall be deemed to include all agents,
contractors, and employees of Landlord.
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(i) The term "tenant" shall be deemed to include any and all occupants of
the Building.
The term "consent" shall mean prior consent and approval, and the
consent by either party to any particular action shall not in any way be
considered as relieving the other party from obtaining the express consent to
any subsequent or further action.
(k) The words "Tenant hereby indemnifies Landlord against liability" and
words of similar import shall mean that Tenant hereby agrees to and hereby does
indemnify, defend, hold and save Landlord and Landlord's agents and their
respective employees harmless from and against any and all loss, cost,
liability, claim, damage, fine, penalty and expense, including their respective
reasonable attorneys' fees, costs and disbursements, and said definition shall
apply reciprocally t6 any indemnification by Landlord in Tenant's favor.
(l) The words "in default under this Lease" and words of similar import
shall be deemed to include the phrase "beyond any applicable grace or cure
periods".
(m) Each term, covenant, agreement, obligation or other provision of this
Lease on either party's part to be performed shall be deemed and construed as a
separate and independent covenant of such party, not dependent upon any of the
other terms of this Lease. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted. In the event of any action, suit, arbitration, dispute or
proceeding affecting the terms of this Lease, no weight shall be given to any
deletions or striking out of any of the terms of this Lease contained in this
Lease or any draft of this Lease (other than treating the deleted or stricken
terms as if they had never been included) and no such deletion or strike out
shall be entered into evidence in any such action, suit, arbitration, dispute or
proceeding nor given any weight therein.
Section 25.04 CAPTIONS.
The Article and Section headings in this Lease and the Table of Contents to
this Lease are inserted only as a matter of convenience or reference, and are
not to be given any effect in construing this Lease.
ARTICLE 26
EXTENSION RIGHTS
Section 26.01 RENEWAL OPTION.
Subject to the rights of Lucent Technologies Inc. under the current terms
of its lease with Landlord and provided Tenant is not in default under this
Lease and no event or condition exists which with notice and the expiration of
any grace period would constitute a default under this Lease at the time, the
option may be exercised, Landlord grants Tenant one option (the "RENEWAL
OPTION") to renew this Lease with respect to all of the Premises for one
additional period of five (5) years (the "RENEWAL TERM"). The Renewal Option may
be exercised by Tenant delivering
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written notice to Landlord at least twelve (12) months prior to the expiration
date of the Initial Term. Time is of the essence in the exercise of the Renewal
Option.
Section 26.02 RENEWAL RENTAL RATE.
The renewal rental rate for the Renewal Terms shall be one hundred percent
(100%) of the market rental rate for comparable space of comparable size and
quality and in no event shall the fixed renewal rate for the Renewal Term be
less than the annual Fixed Rent in effect for the last Lease Year of the Initial
Term.
Within thirty (30) days after Tenant's exercise of the Renewal Option, if
exercised, Landlord shall notify Tenant in writing of the proposed renewal
rental rate for the Renewal Term (the "RENEWAL RENTAL RATE") as determined by
the above formula. Tenant shall have thirty (30) days from the receipt of
Landlord's notice to either accept or dispute Landlord's determination of the
Renewal Rental Rate. In the event that Tenant disputes Landlord's determination,
Tenant shall so notify Landlord and advise Landlord of Tenant's determination of
the Renewal Rental Rate for the Renewal Term as determined by the above formula
("Tenant's Notice"). If Landlord and Tenant cannot agree upon the market rental
rate within fifteen (15) days of Tenant's Notice, the following "DISPUTE
RESOLUTION MECHANISM" shall be utilized: The parties, within fifteen (I 5) days
after the expiration of said fifteen (I 5) day period, shall jointly appoint as
arbitrator, a certified commercial real estate appraiser with a minimum of ten
(10) years experience in the applicable marker. If Landlord and Tenant cannot
agree on an acceptable arbitrator, Landlord and Tenant shall each choose, within
an additional fifteen (15) days thereafter, its own arbitrator who meets the
qualifications described above. The arbitrators shall then jointly select,
within an additional ten (10) days, an arbitrator to serve as the arbitrator
hereunder. Within twenty (20) days after appointment, the arbitrator shall
choose either Landlord's or Tenant's determination of market rental rate. The
cost of the arbitrator(s) shall be borne by the party whose determination of the
market rental rate was not selected by the arbitrator.
Section 26.03 AMENDMENT TO LEASE.
Landlord and Tenant shall execute an amendment to this Lease within sixty
(60) days after the determination of the market rental rate for the Renewal
Term, which amendment shall set forth the Renewal Term, the annual Fixed Rent
and all other terms and conditions for the Renewal Term.
Except as set forth above, the Renewal Term shall be subject to all of the
terms and conditions of this Lease; provided, however, that there shall be no
extension rights at the expiration of the Renewal Term.
Section 26.04 LANDLORD'S RIGHTS.
Neither any option granted to Tenant in this Lease or in any collateral
instrument to renew or extend the Initial Term, nor the exercise of any such
option by Tenant, shall prevent Landlord from exercising any option or right
granted or reserved to Landlord in this Lease to
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terminate this Lease or any renewal or extension of the Term either during the
Initial Term or during any Renewal Tenn. Any renewal or extension right granted
to Tenant shall be personal to Tenant and may not be exercised by any assignee,
subtenant or legal representative of Tenant, other than a Permitted Assignee.
Any termination of this Lease shall serve to terminate any such renewal or
extension of the Term, whether or not Tenant shall have exercised any option to
renew or extend the Term. No option granted to Tenant to renew or extend the
Term shall be deemed to give Tenant any further option to renew or extend. No
option granted to Tenant to renew or extend the Term shall be effective unless
both at the exercise of such option and at the commencement of such renewal or
extension, this Lease shall be in full force and effect.
IN WITNESS WHEREOF Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
LANDLORD:
000 XXXXX XXXXXX ASSOCIATES, LIMITED PARTNERSHIP
By: 000 Xxxxx Xxxxxx Managers, Limited Partnership, a general partner
By: HG Concord Limited Partnership, its general partner
By: HG Concord LLC, its general partner
By: _________________________________________________
Name:
Title:
TENANT:
ONE SOURCE INFORMATION SERVICES, INC., a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Name: Xxxxxx Xxxxxxxx
Title: President
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EXHIBIT A
DESCRIPTION OF REAL PROPERTY
Lot 2 shown on a plan entitled, "Approval Not Required Plan" dated June 23,
1998, prepared by Xxxxx Associates, Inc. for 000 Xxxxx Xxxxxx Xxxxxxxxxx, XX,
Xxxxxxx, XX recorded with the Middlesex South District Registry of Deeds on
September 8, 1998 as Plan No. 980 of 1998.
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EXHIBIT B
FLOOR PLAN FOR THE PREMISES
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EXHIBIT C
WORK LETTER
THIS WORK LETTER AGREEMENT ("WORK LETTER AGREEMENT") is entered into as of
the _____ day of January, 1999 by and between 000 Xxxxx Xxxxxx Associates,
Limited Partnership, ("LANDLORD"), and OneSource Information Services, Inc.
("TENANT").
RECITALS
A. Concurrently with the execution of this Work Letter, Landlord and
Tenant have entered into the Lease covering certain Premises more particularly
described in the Lease. All terms not defined herein have the same meaning as
set forth in the Lease.
B. In order to induce Tenant to enter into the Lease and in consideration
of the mutual covenants hereinafter contained, Landlord and Tenant agree as
follows:
1. LANDLORD'S WORK. As used in the Lease and this Work Letter Agreement,
the term "LANDLORD'S WORK" means those items of general tenant improvement
construction shown on the Final Plans (described in Paragraph 4(c) below),
including, but not limited to, partitioning, doors, ceilings, floor coverings,
wall finishes (including paint and wall coverings), electrical (including
lighting, switching, telephone outlets, etc.), plumbing, heating, ventilating
and air conditioning, fire protection, cabinets and other millwork and
distribution of Building services such as sprinkler and electrical service.
Landlord's Work includes the installation of windows along the rear of the
Building, which windows have been installed by Landlord at Landlord's sole cost
and expense in addition to the Tenant Improvement Allowance. All Landlord's Work
and components thereof shall at all times be and remain the sole property of
Landlord.
2. CONSTRUCTION REPRESENTATIVES. Landlord appoints the following
person(s) as Landlord's representative ("LANDLORD'S REPRESENTATIVE") to act for
Landlord in all matters covered by this Work Letter:
Xxx X. Xxxxxxxxx
000 Xxxxx Xxxxxx Associates, Limited Partnership
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Tenant appoints the following person(s) as Tenant's representative ("TENANT
REPRESENTATIVE") to act for Tenant in all matters covered by this Work Letter.
Xxx Coming
One Source Information Services, Inc.
000 XxxxxxxxxXxxx Xxxxx, 0xx Xxxxx
00
-0-
Xxxxxxxxx, XX 00000
All communications with respect to the matters covered by this Work Letter are
to be made to Landlord's Representative or Tenant's Representative, as the case
may be, in writing, in compliance with the notice provisions of the Lease.
Either party may change its representative under this Work Letter at any time by
written notice to the other party in compliance with the notice provisions of
the Lease.
3. DESIGN AND CONSTRUCTION.
(a) All Landlord's Work shall be performed by or under the supervision of
a general contractor selected and engaged by Landlord and reasonably acceptable
to Tenant. Tenant acknowledges that Xxxx Xxxxxxxx & Associates, Inc. (the
"CONTRACTOR") is an acceptable general contractor. Tenant shall engage a
registered professional architect of its choice to design the interior space of
the Premises ("TENANT'S Architect").
(b) Landlord shall, upon the written request of Tenant (which request
shall be made not later than the date the Final Plans are approved), require
Landlord's general contractor to have trades or subcontracts valued in excess of
Fifty Thousand ($50,000) Dollars competitively bid by two (2) subcontractors
selected by the Contractor (but who are not affiliated with the Contractor or
with each other) and, if Tenant so desires, by an additional subcontractor
selected by Tenant and reasonably satisfactory to Contractor. The name of the
subcontractor selected by Tenant shall be delivered by Tenant to Contractor and
Landlord within two (2) days of Landlord's or Contractor's notice to Tenant that
bids are being sought. The competitive bids shall be delivered to Tenant within
two (2) days of receipt by Landlord. The Contractor shall accept the bid of the
subcontractor who submitted the lowest bid for the subcontract or trade, unless
the Contractor has bona fide good faith reasons, including but not limited to
availability of the low bidder's personnel, equipment and materials, special
requirements of Landlord's Work and labor harmony, for accepting a bid other
than the low bid; provided, however, if the Contractor wishes to accept a bid
other than the lowest bid, as described above, and said bid is more than ten
percent (10%) higher than the lowest bid, then prior to acceptance of such bid,
Contractor or Landlord shall notify Tenant of the name of said subcontractor,
the amount of its bid and the work covered by the bid (the "SUBCONTRACTOR
NOTICE"), whereupon Tenant, by giving notice ("the TENANT NOTICE") to Landlord
within two (2) Business Days of the Subcontractor's Notice, may consult with
Landlord and Contractor to mutually and in good faith choose a subcontractor to
perform said subcontract or trade. If Tenant does not timely give a Tenant
Notice relative to a bid which is the subject of a Subcontractor Notice, then
Contractor may let a subcontract based on such a bid. For every two (2) days
which elapse between the date of the Tenant Notice and the date that the parties
agree on an acceptable subcontractor, one (1) day of Tenant Delay shall be
deemed to have occurred.
Tenant and Tenant's designees shall at all times during construction of
Landlord's Work be entitled, upon reasonable notice to Landlord and the
Contractor, to review all books, records, costs and estimates associated with
the construction of Landlord's Work.
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4. TENANT IMPROVEMENT PLANS.
(a) SPACE PLANS. On or before January 15, 1999, Tenant shall have caused
Tenant's Architect to prepare schematic drawings for the layout of the Premises
("SPACE PLANS"). Such Space Plans will be submitted to Landlord on said date for
Landlord's review and approval (which shall not be unreasonably withheld or
delayed). If Landlord in its reasonable discretion does not approve the Space
Plans, Tenant will then cause Tenant's Architect to redesign the Space Plans
incorporating the revisions reasonably requested by Landlord so as to make the
-Space Plans consistent with Landlord's request, whereupon the revised Space
Plans shall be submitted to Landlord for Landlord's review and approval. Based
upon the approved Space Plans, Landlord will prepare a preliminary line item
budget for the construction of Landlord's Work (the "PRELIMINARY Budget"). The
Preliminary Budget will be submitted to Tenant for its approval. Tenant shall
either approve or disapprove the Preliminary Budget based on the process
established in Section 4(b) hereof for Tenant's review and approval of the
Excess Cost Summary. At such time Tenant may request that Landlord consult with
its subcontractor(s) to revise the Preliminary Budget.
(b) PREPARATION OF FINAL PLANS. Not later than March 1, 1999, Tenant's
Architect will prepare complete architectural plans, drawings and specifications
and complete engineered mechanical, structural and electrical working drawings
for all of Landlord's Work (collectively the "FINAL PLANS"). The Final Plans
will show: (i) the subdivision (including partitions and walls), layout,
lighting, finish and decoration work (including carpeting and other floor
coverings) for the Premises; (ii) all internal and external communications and
utility facilities which will require the installation of conduits or other
improvements from the base Building shell and/or within common areas; and (iii)
all other specifications for Landlord's Work. The Final Plans will be submitted
to Landlord for Landlord's reasonable approval, and at such time Landlord shall
provide Tenant with a written summary (the "EXCESS COST SUMMARY") of those
elements of the Final Plans that will cost in excess of the Tenant Improvement
Allowance (defined below) ("EXCESS COSTS"). Landlord agrees to advise Tenant in
writing of any disapproval of -the Final Plans, and Tenant agrees to advise
Landlord in writing of any disapproval of the Excess Cost Summary, and the
reasons therefor within ten (10) business days of their respective receipt
thereof. At such time, if Tenant has not previously requested that a particular
trade or subcontract be competitively bid pursuant to Section 3 hereof, Tenant
may exercise its Section 3 rights with respect to any such trade or subcontract
and Landlord shall take any qualifying bids into account in revising the Excess
Cost Summary. If Landlord in its reasonable discretion does not approve the
Final Plans, Tenant will then cause Tenant's Architect to redesign the Final
Plans incorporating the revisions reasonably requested by Landlord so as to make
the Final Plans consistent with Landlord's reasonable request. If Tenant fails
to timely deliver to Landlord Tenant's written disapproval of the Excess Cost
Summary, the Excess Cost Summary shall be deemed approved by Tenant. If the
revised Excess Cost Summary is timely disapproved by Tenant pursuant to this
paragraph, Tenant shall provide to Landlord a written explanation of the
reason(s) for such disapproval concurrently with its disapproval, and the Excess
Cost Summary, as appropriate, shall be promptly revised and resubmitted to
Tenant for approval. If Tenant fails to provide a written explanation as and
when required by this paragraph, the Excess Cost Summary shall be deemed
approved by Tenant. Tenant agrees to
73
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advise Landlord in writing of any disapproval of the revised Excess Cost Summary
and the reasons therefor within ten (I 0) business days of its receipt thereof.
If Tenant fails to timely deliver to Landlord written approval of the Excess
Cost Summary, the Excess Cost Summary shall be deemed approved by Tenant.
(c) REQUIREMENTS OF THE FINAL PLANS. The Final Plans will include
locations and complete dimensions, and Landlord's Work, as shown on the Final
Plans, will: (i) be compatible with the Building shell (a description of which
is attached hereto as Schedule A-) and with the design, construction and
equipment of the Building; (ii) if not comprised of the Building standard set
forth in the written description thereof attached hereto as Schedule B
("BUILDING STANDARD"), be compatible with and of at least equal quality as
Building Standard and approved by Landlord; (iii) comply with all Legal
Requirements and Insurance Requirements; (iv) not require Building service
beyond the level normally provided to other tenants in the Building and will not
overload the Building floors; and (v) be of a nature and quality consistent with
the overall objectives of Landlord for the Building, as determined by Landlord
in its reasonable but subjective discretion. Tenant's approval of the Excess
Cost Summary shall constitute Tenant's agreement to pay Landlord fifty percent
(50%) of the Excess Costs before commencement of construction of Landlord's Work
and the remaining fifty percent (50%) of the Excess Costs on or before the date
that is forty-five days (45) after commencement of construction of Landlord's
Work.
(d) SUBMITTAL OF FINAL PLANS. Once approved by Landlord, Tenant's
Architect will submit the Final Plans to the appropriate governmental agencies
for plan checking and the issuance of a building permit. Tenant's Architect,
with Landlord's cooperation, will make any changes to the Final Plans which are
required by the applicable governmental authorities to obtain the building
permit. Any changes required by governmental authorities will be made only with
the prior written approval of Landlord, and only if Tenant agrees to pay any
excess costs resulting from the design and/or construction of such requested
changes (the "ADDITIONAL COSTS"). Landlord shall have the option to revise the
Excess Cost Summary by increasing the Excess Costs by the amount of the
Additional Costs resulting from plan modifications required by any governmental
authority. Tenant hereby acknowledges that any such changes will be subject to
the terms of Section 5 below. Any Additional Costs are to be paid by Tenant to
Landlord fifty percent (50%) before commencement of construction of Landlord's
Work and the remaining fifty percent (50%) on or before the date that is
forty-five days (45) after commencement of construction of Landlord's Work.
(e) CHANGES TO SHELL OF BUILDING. If the Final Plans or any amendment
thereof or supplement thereto shall require changes in the building shell, the
increased cost of the building shell work caused by such changes will be paid
for by Tenant.
5. PAYMENT FOR LANDLORD'S WORK.
(a) TENANT IMPROVEMENT ALLOWANCE AND EXCESS COSTS. Landlord shall pay for
Landlord's Work up to a maximum of $17.50 per rentable square foot (the "TENANT
IMPROVEMENT ALLOWANCE"). The Tenant Improvement Allowance shall only be used
for:
74
-5-
(i) Payment to Tenant's Architect for all usual design and
architectural fees, including, without limitation, all reasonable
architectural and engineering costs of preparing the Final Plans, including
mechanical, electrical, plumbing and structural drawings, and all other
aspects necessary to complete the Final Plans. The Tenant Improvement
Allowance will not be used for the payment of extraordinary design work,
all of which other costs shall be paid for by Tenant.
(ii) Payment of plan check, permit and license fees relating to
construction of Landlord's Work.
(iii) Payment to Landlord of a space improvement fee ("IMPROVEMENT
FEE") to, among other things, pay Landlord's space improvement costs for
the Premises, including without limitation, costs for the following: plan
check and permits; utilities, including electrical and water consumption;
and elevator usage. The Improvement Fee shall be 2.5% of the Tenant
Improvement Allowance.
(iv) Construction of Landlord's Work, including, without
limitation, the following:
(A) Installation within the Premises of all partitioning,
doors, floor coverings, ceilings, wall coverings and painting,
millwork and similar items;
(B) All electrical wiring, lighting fixtures, outlets and
switches, and other electrical work to be installed within the
Premises, excluding however, computer cable and wiring;
(C) The furnishing and installation of all duct work,
terminal boxes, diffusers and accessories required for the completion
of the heating, ventilation and air conditioning systems within the
Premises, including the cost of meter and key control for after-hour
air conditioning;
(D) Any additional tenant requirements including, but not
limited to, air quality control, special heating, ventilation and air
conditioning, noise or vibration control or other special systems;
(E) All fire and life safety control systems such as fire
walls, sprinklers, fire alarms, including piping and wiring,
installed within the Premises;
(F) All plumbing, including fixtures and pipes, to be
installed within the Premises;
(G) Testing and inspection costs; and
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-6-
(H) Contractor's fees of four and one-half percent (4-1/2%)
of the total cost of Landlord's Work and general conditions in an
amount not greater than 11% of the total cost of Landlord's Work
(v) up to $2.00 per rentable square foot of the Tenant Improvement
Allowance may be used, at Tenant's option, to pay Tenant's expenses
(including moving consultant's fees) for moving to the Premises and
installing cabling, telecommunications equipment and furniture in the
Premises; said expenses to be billed to Tenant and submitted to Landlord by
Tenant for reimbursement.
(b) CHANGES. If, after the Final Plans and the Excess Costs Summary have
been approved by Landlord and Tenant, as applicable, Tenant requests any changes
or substitutions to the Final Plans or to Landlord's Work during construction,
Tenant shall complete the change order request form approved by Landlord and
forward it to Landlord's representative. All such changes shall be subject to
Landlord's prior written approval in accordance with Paragraph 11. Prior to
commencing any change, Landlord shall prepare and deliver to Tenant, for
Tenant's approval, a change order setting forth the total cost of such change,
which shall include associated architectural, engineering, construction
contractor's costs and fees, and completion schedule changes in the Work
Schedule. If Tenant fails to approve such change order within ten (10) business
days after delivery by Landlord, Tenant shall be deemed to have withdrawn the
proposed change and Landlord shall not proceed to perform the change. Any
additional costs related to such change are to be paid by Tenant to Landlord
within thirty (30) days after receipt by Tenant of an invoice for such
additional costs from Landlord.
(c) CREDIT. Tenant shall be entitled to credit for any portion of the
Tenant Improvement Allowance which is not used.
6. CONSTRUCTION OF LANDLORD'S WORK. Until Landlord approves the Final
Plans, Tenant approves the Excess Cost Summary, and all necessary permits have
been obtained from the appropriate governmental authorities, Landlord will be
under no obligation to cause the construction of any of Landlord's Work.
Following Tenant's approval of the Excess Cost Summary and after Landlord
approves the Final Plans, Landlord's contractor will commence and diligently
proceed with the construction of the Landlord's Work, which will be completed
within ninety (90) days from the date that the building permit has been
obtained, subject to Tenant Delays (as described in Paragraph 8 below) and Force
Majeure Delays (as described in Paragraph 9 below). The costs of such work shall
be paid as provided in Paragraph 5. Promptly upon the commencement of Landlord's
Work, Landlord will furnish Tenant with a construction schedule letter setting
forth the projected completion dates therefor and showing the deadlines for any
actions required to be taken by Tenant during such construction, and Landlord
may from time to time during construction of Landlord's Work modify such
schedule. Landlord will also furnish Tenant with written progress reports at the
end of each week during construction.
7. FREIGHT/CONSTRUCTION ELEVATOR. Landlord will, consistent with its
obligation to other tenants in the Building make the freight/construction
elevator reasonably
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-7-
available to Tenant in connection with initial decorating, furnishing and moving
into the Premises.
8. TENANT DELAYS. For purposes of this Work Letter, "TENANT DELAYS"
means any delay in the completion of the Landlord's Work resulting from any or
all of the following:
(a) Tenant's failure to timely perform any of its obligations pursuant to
this Work Letter, including any failure to approve any item or complete, on or
before the due date therefor, any action item which is Tenant's responsibility
pursuant to this Work Letter or any schedule delivered by Landlord to Tenant
pursuant to this Work Letter;
(b) Change orders requested by Tenant after approval of the Final Plans;
(c) Tenant's request for materials, finishes, or installations which are
not readily available or incompatible with Building Standard;
(d) any delay of Tenant in making payment to Landlord for any costs due
from Tenant under this Work Letter or the Lease; or
(e) any other act or failure to act by Tenant, Tenant's employees,
agents, architects, independent contractors, consultants and/or any other person
performing or required to perform services on behalf of Tenant. Landlord shall
give Tenant written notice when Landlord believes there has been a Tenant Delay.
9. FORCE MAJEURE DELAYS. For purposes of the Work Letter, "FORCE MAJEURE
DELAYS" means any and all causes beyond Landlord's reasonable control,
including, without limitation, delays caused by Tenant, other tenants,
governmental regulation, governmental restriction, strike, labor dispute, riot,
accident, mechanical breakdown, shortages of or inability to obtain labor, fuel,
steam, water, electricity or materials, acts of God, war, enemy action, civil
commotion, fire or other casualty.
10. APPROVALS. Whenever any party under this Work Letter must reasonably
grant its approval such party shall also not unreasonably delay or condition its
approval. Unless otherwise required by the terms of this Work Letter, any
approval shall be deemed granted unless such party responds within ten (10) days
after its receipt of the items for which approval is sought.
11. LANDLORD'S APPROVAL. Landlord, in its reasonable discretion, may
withhold its approval of the Final Plans, change orders or other documents or
plans that:
(a) Exceeds or adversely affects the structural integrity of the
Building, or any part of the heating, ventilating, air conditioning, plumbing,
mechanical, electrical, communication, or other systems of the Building;
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(b) Is not approved by any Superior Mortgagee or Superior Lessee at the
time the work in progress.:
(c) Would not be approved by a prudent owner of property similar to the
Building;
(d) Violates any agreement which affects the Building or binds the
Landlord;
(e) Landlord reasonably believes will increase the cost of operation or
maintenance of any of the systems of the Building;
(f) Landlord reasonably believes will materially reduce the market value
of the Premises or the Building at the end of the Term of the Lease;
(g) Does not conform to the applicable building code or is not approved
by any governmental, quasi-governmental, or utility authority with jurisdiction
over the Premises; or
(h) Does not conform to the Building Standard.
12. DEFAULTS BY TENANT. In the event of any default by Tenant with
respect to any of the provisions of this Work Letter or any other agreement with
Landlord relating to construction in or about the Premises, Landlord may, in
addition to exercising any other right or remedy Landlord may have, treat such
default as a default by Tenant under the Lease and exercise any or all rights
available under the Lease in connection therewith, including, if applicable, the
right of termination. In the event of any termination of the Lease by Landlord,
Landlord may elect in its reasonable discretion, with respect to any work
performed by or on behalf of Tenant prior to the date of such termination, to
either:
(a) retain for its own use part or all of any such work, without
compensation to Tenant therefor; or
(b) demolish or remove part or all of any such work and restore part or
all of the Premises to its condition prior to the initial tender of possession
thereof to Tenant, in which event Tenant shall reimburse Landlord upon demand
for all costs reasonably incurred by Landlord in connection with such
demolition, removal and/or restoration.
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IN WITNESS WHEREOF, the undersigned Landlord and Tenant have caused this
Work Letter Agreement to be duly executed by their duly authorized
representatives as of the date of the Lease.
LANDLORD: 000 XXXXX XXXXXX ASSOCIATES, LIMITED PARTNERSHIP
By: 000 Xxxxx Xxxxxx Managers, Limited Partnership, a general partner
By: HG Concord Limited Partnership, its general partner
By: HG Concord LLC, its general partner
By: ________________________________________________________
Name:
Title:
TENANT: ONESOURCE INFORMATION SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------
Name: Xxxxxx Xxxxxxxx
Title: President
79
SCHEDULE A
DESCRIPTION OF BASE BUILDING SHELL
a) Fully installed and operational Building Equipment (as defined in the
Lease)-
b) The base building shall be ADA compliant to the extent required by the
governmental authorities enforcing the code.
c) Sprinkler risers are delivered to the floor, valve connections and main
sprinkler loop are provided and installed. Sprinkler coverage (including
heads) will extend to all non-tenant areas including bathrooms, freight
elevator lobbies, corridor and lobby areas on divided floors, storage and
utility closets, air conditioning rooms, etc.
d) Sheetrock core walls and exterior walls, above and below the windows,
taped and spackled ready for painting.
e) Drinking fountains in common corridors as required by the building code
and the ADA.
f) Electrical/telephone closets in central locations. The base building will
provide 4-inch empty conduit from the substations to electric closets on
each floor of the Building. Feeders from the substations, dry type
step-down transformers, panelboards, and electric check metering are part
of Landlord's Work.
g) Building stair-ways as required by building code for emergency egress.
h) Mechanical equipment rooms for base building and mechanical equipment,
i) Primary HVAC duct loop from mechanical equipment room around the building
core including VAV mixing boxes and thermostats. HVAC capacity and
maintenance adequate to meet Tenant's reasonable needs. The Building HVAC
system will be modified to a conventional variable air volume (VAV)
system for the Premises. Four 464-ton capacity chillers deliver
approximately one ton of cooling capacity per 215 square feet of space.
The base building system will provide distribution of the medium pressure
ductwork to new fanpowered VAV boxes. The average size of perimeter zones
served by fan-powered VAV box is 900 SF, Interior VAV boxes (and
additional zones, if required) are part of Landlord's Work. Around the
perimeter, fan-powered boxes will be provided with electric heating
coils. The existing base building system shall be utilized for morning
warm up to maximize energy efficiency. Low pressure ductwork (including
diffusers and registers) down stream of both the perimeter fan powered
boxes and the interior VAV boxes are part of Landlord's Work. Specialty
areas requiring 24-hour or supplemental cooling are also part of
Landlord's Work.
j) Fire protection alarm and communications system installed as required for
base building according to building code.
k) Life safety and life support systems required for base building according
to building code.
80
EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, and public portions of the Building, such as entrances,
passages, courts, elevators, vestibules, stairways, corridors or halls shall not
be obstructed or encumbered by any tenant or used for any purpose other than
ingress and egress to and from any premises.
2. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades, louvered openings or screens shall
be attached to or hung in, or used in connection with, any window or door of any
premises, without the prior written consent of Landlord, unless installed by
Landlord.
3. No sign, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any tenant on any part of the
outside of any premises or Building or on windows or corridor walls, or be
readily visible from the street or any public atrium. Signs on entrance door or
doors shall conform to building standard signs, samples of which are on display
in Landlord's rental office. Signs on doors shall, at the tenant's expense, be
inscribed, painted or affixed for each tenant by sign makers approved by
Landlord. In the event of the violation of the foregoing by any tenant, Landlord
may remove same without any notice or liability, and may charge the expense
incurred by such removal to the tenant or tenants violating this rule.
4. The sashes, sash doors, skylights, windows, heating, ventilating and
air conditioning vents and doors that reflect or admit light and air into the
halls, passageways or other, public places in the Building shall not be covered
or obstructed by any tenant, nor shall any bottles, parcels, or other articles
be placed outside of any premises.
5. Whenever Tenant shall submit to Landlord any plan, agreement or other
document for Landlord's consent or approval, Tenant agrees to pay Landlord, on
demand, a processing fee in a sum equal to the reasonable fee for review of same
including the services of any architect, engineer and/or attorney employed by
Landlord to review said plan, agreement or document.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose servants, employees, agents, visitors or licensees, shall have
caused the same.
7. No tenant or occupant shall install any resilient tile or similar
floor covering in the premises demised to such tenant or occupant except in a
manner approved by Landlord.
8. No bicycles, vehicles or animals of any kind (except seeing eye dogs)
shall be brought into or kept in or about the premises. No cooking shall be done
or permitted by Tenant on said premises except in conformity to law and then
only in the utility kitchen, if any, as set
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forth in Tenant's layout. No tenant shall cause or permit any unusual or
objectionable odors to be produced upon or emanate from any premises.
9. No space in the Building shall be used for the manufacturing or
distribution or for the storage of merchandise or for the sale at auction or
otherwise of merchandise, goods or property of any kind.
10. No tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of the Building or neighboring
buildings or premises or those having business with them. No tenant shall throw
anything out of the doors, or windows or down the passageways.
11. No tenant, nor any of the tenant's servants, employees, agents,
visitors or licensees, shall at any time bring or keep upon any premises any
inflammable, combustible or explosive fluid, material, chemical or substance or
aerosol containers, other than reasonable amounts of cleaning fluids and
solvents (stored in proper containers) required in the normal operation of
tenant's business offices.
12. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in existing
locks or the mechanism thereof, without the prior written approval of the
Landlord and unless and until a duplicate key is delivered to Landlord. Each
tenant must, upon the termination of his tenancy, restore to the Landlord all
keys of stores, offices and toilet rooms, either furnished to, or otherwise
procured by, such tenant, and in the event of the loss of any keys, so
furnished, such tenant shall pay to Landlord the cost of replacement thereof.
13. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place during the hours
which Landlord or its agent may determine from time to time. Landlord reserves
the right to inspect all freight and other material to be brought into or out of
the Building and to exclude from the Building all freight or other material
which violates any of these Rules and Regulations or the Lease of which these
Rules and Regulations are a part.
14. No office tenant shall occupy or permit any portion of the premises
demised to it to be occupied as, by or for a public stenographer or typist,
xxxxxx shop, bootblacking, beauty shop or manicuring, telephone or secretarial
service, messenger service, travel or tourist agency, employment agency, public
restaurant or bar, commercial document reproduction or offset printing services,
public vending machines, retail, wholesale or discount shop for display or sale
of merchandise, retail service shop, school or classroom, governmental or
quasi-governmental bureau, department or agency, or a company engaged in the
business of renting office or desk space; or for a public finance (personal
loan) business, or for manufacturing. No tenant shall advertise for laborers
giving an address at said premises.
15. Landlord shall have the right to prohibit any advertising by any
tenant mentioning the Building which, in Landlord's reasonable opinion, tends to
impair the reputation of the
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Building or its desirability as a building for offices, and upon written notice
from Landlord, tenants shall refrain from or discontinue such advertising.
16. In order that the Building can and will maintain a uniform appearance
to those outside of same, each Tenant in building perimeter areas shall (a) use
only building standard lighting in areas where lighting is visible from the
outside of the Building unless Landlord specifically approves other lighting in
writing and (b) use only building standard venetian or vertical blinds in window
areas which are visible from the outside of the Building.
17. Landlord reserves the right to exclude from the Building between the
hours of 6:00 P.M. and 8:00 A.M. and at all hours on non-business days all
persons who do not present a pass to the Building signed by a tenant or
otherwise comply with Landlord's security system. Each tenant shall be
responsible for all persons for whom such pass is issued or entry given and
shall be liable to Landlord for all acts of such persons.
18. The premises shall not be used for lodging or sleeping or for any
illegal purpose.
19. The requirements of tenants will be attended to only upon application
at the office of the Building. Building employees shall not perform any work or
do anything outside of their regular duties, unless under special instructions
from the office of Landlord.
20. Tenants shall purchase from Landlord or its designee all lighting
tubes, lamps, bulbs and ballasts used in any premises and tenants shall pay
Landlord's reasonable charges for providing and installing same, on demand.
21. Each tenant, before closing and leaving the premises demised to such
tenant at any time, shall see that all entrance doors are locked and all windows
closed.
22. Each tenant shall, at its expense, provide artificial light and
electricity in the premises demised to such tenant for Landlord's agents,
contractors and employees while performing janitorial or other cleaning services
and making repairs or alterations on said premises.
23. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
24. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards. No hand trucks shall be used in passenger elevators.
25. If the premises demised to any tenant become infested with vermin,
such tenant, at its sole cost and expense, shall cause its premises to be
exterminated, from time to time, to the satisfaction of Landlord, and shall
employ such exterminators therefor as shall be approved by Landlord.
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26. Replacement of ceiling tiles after they are removed for Tenant by
telephone or other similar installers, in both the premises and the public
corridors, will be charged to Tenant.
27. All movers used by any tenant shall be appropriately licensed and
shall maintain appropriate and adequate insurance coverage (proof of such
coverage shall be delivered to Landlord prior to movers performing services in
or about the Building). Insurance must be sufficient, in landlord's sole
opinion, to cover all personal liability, theft or damage to the project,
including but not limited to floor coverings, doors, walls, elevators, stairs,
foliage, and landscaping. No tenant shall move, or permit to be moved into or
out of the Building or the premises demised to such tenant, any heavy or bulky
matter, without the specific approval of Landlord. No tenant shall place, or
permit to be placed, on any part of the floor or floors of the premises demised
to such tenant, a load exceeding the floor load per square foot which such floor
was designed to carry and which is allowed by law. Landlord reserves the right
to prescribe the weight, position and method of weight distribution of safes and
other heavy matter, which must be placed so as to distribute the weight.
28. All paneling, decoration or other wood products not considered
furniture and draperies, carpeting and other furnishings shall be of fire
retardant materials. Before installation of any such materials, certification of
the materials' fire retardant characteristics shall be submitted to Landlord, or
its agents, in a manner satisfactory to the Landlord.
29. Landlord may from time to time adopt appropriate systems and
procedures for the security or safety of the building, any persons occupying,
using, or entering the building, or any equipment, finishings, or contents of
the building, and tenant will comply with landlord's reasonable systems and
procedures.
30. The halls, passages, exists, entrances, elevators, escalators, and
stairways are not for the general public, and landlord will in all cases retain
the right to control and prevent access to such halls, passages, exits,
entrances, elevators, and stairways of all persons whose presence in the
judgment of landlord would be prejudicial to the safety, character, reputation,
and -interests of the building and its tenants, provided that nothing contained
in these rules and regulations will be construed to prevent such access to
persons with whom a tenant normally deals in the ordinary course of its
business, unless such persons are engaged in illegal activities. No tenant and
no employee or invitee of any tenant will go upon the roof of the building
except such roof or portion of. such roof as may be contiguous to the premises
of a particular tenant and may be designated in writing by landlord as a roof
deck or roof garden area. No tenant will be permitted to place or install any
object (including without limitation radio and television antennas,
loudspeakers, sound amplifiers, microwave dishes, solar devices, or similar
devices) on the exterior of the building or on the roof of the building.
31. Tenant, and all of Tenant's servants, employees, agents, visitors or
licensees are prohibited from using any of the ponds on the Real Property for
ice skating or for any other purpose.
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Whenever and to the extent that the above rules conflict with any of the
rights or obligations of Tenant pursuant to the provisions. of this Lease, the
provisions of this Lease shall govern.
85
EXHIBIT E
CLEANING STANDARDS
1. General
* All flooring swept nightly.
* All carpeted areas and rugs carpet-swept nightly and vacuum cleaned
weekly.
* All private stairways swept nightly.
* Wastepaper baskets ` ashtrays, receptacles, etc., emptied and cleaned
nightly.
* Cigarette urns cleaned nightly and sand or water replaced when
necessary.
* All furniture tops and window xxxxx dusted nightly.
* All glass furniture tops cleaned nightly.
* All baseboards and trim dusted nightly.
* All water fountains washed clean nightly.
* Slopsink rooms cleaned nightly.
2. Lavatories
* All flooring swept and washed nightly.
* All mirrors, powder shelves, bright work, etc., including flushometers,
piping and toilet seat hinges washed and polished nightly.
* All basins, bowls, urinals and toilet seats (both sides) washed nightly.
* All partitions, tile walls, dispensers and receptacles dusted nightly.
* Paper towel and sanitary disposal receptacles emptied and cleaned
nightly.
* Paper towels, toilet paper and soap to be supplied by Landlord.
* Remove wastepaper and refuse to designated area in the Premises.
3. Office Area-Quarterly high dusting.
* Dust all pictures, frames, charts, graphs And panel wall hangings not
reached in nightly cleaning.
* Dust all vertical surfaces such as walls, partitions, ventilating
louvres and other surfaces -not reached in nightly cleaning.
* Dust all overhead pipes, sprinklers, etc.
* Dust all venetian blinds and window frames.
* Dust all lighting fixtures.
4. Periodic Cleaning - Office Area
* Wipe clean all interior metal as necessary.
* Dust all door louvres and other ventilating louvres within reach weekly.
* Elevator, stairway, office and utility doors on all floors are to be
checked for general cleanliness as necessary, removing fingerprints,
smudges and other marks.
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* Remove all fingermarks, smudges and other marks from metal partitions
and other surfaces as necessary.
5. Periodic Cleaning-Lavatories
* Machine-scrub flooring when necessary.
* Wash all partitions, tile walls and enamel surfaces monthly with proper
disinfectant when necessary.
* Dust exterior of lighting fixtures monthly.
* High dust monthly.
6. Windows Clean a normal amount of partition glass approximately four times a
year.
EXCEPT AS OTHERWISE SPECIFIED, ALL OF THE CLEANING SERVICES AS LISTED
ARE TO BE DONE FIVE (5) DAYS EACH WEEK, MONDAY THROUGH FRIDAY,
EXCEPT ON LEGAL HOLIDAYS.
87
EXHIBIT F
NON-DISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT
THIS AGREEMENT is made and entered into as of this _____ day of December,
1998, by and among PNC Bank, National Association, a national banking
association (hereinafter called the "Lender"), OneSource Information Services,
Inc. (hereinafter called the "Tenant"), and 000 Xxxxx Xxxxxx Associates, Limited
Partnership (hereinafter called the "Landlord").
WITNESSETH:
WHEREAS, Landlord owns certain real property located in Concord, Middlesex
County, Massachusetts, and more particularly described in Exhibit A attached
hereto and made a part hereof (said property being hereinafter called the
"Property"); and
WHEREAS, Landlord and Tenant made and entered into that certain Lease,
dated the _____ day of December, 1998, with respect to certain premises
constituting a portion of the Property therein described, known as 000 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx (said Lease being hereinafter called the "Lease"
and said premises being hereinafter called the "Leased Premises"); and
WHEREAS, on November ___, 1998, Landlord entered into and delivered that
certain Mortgage and Security Agreement in favor of Lender recorded with the
Middlesex South District Registry of Deeds on November ___, 1998 as Instrument
No. _, prior to the recording of this-Agreement said Mortgage and Security
Agreement being hereinafter called the "Security Deed"), conveying the Property
to secure the payment of the indebtedness described in the Security Deed; and
WHEREAS, on November 1998, Landlord entered into and delivered that certain
Assignment of Leases and Rents in favor of Lender recorded in the Middlesex
South District Registry of Deeds on November __, 1998 as Instrument No. _, prior
to the recording of this Agreement (said Assignment of Leases and Rents being
hereinafter called the "Assignment of Leases"), assigning all of Landlord's
right, title and interest as lessor under the Lease to further secure the
indebtedness described in the Security Deed; and
WHEREAS, the parties hereto desire to enter into this Non-Disturbance,
Attormnent and Subordination Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth and other good and valuable consideration,- the receipt
and sufficiency of which are hereby acknowledged, Lender, Tenant and Landlord
hereby covenant and agree as follows:
1. ESTOPPEL. Tenant hereby certifies to Lender that (i) the Lease, as
described above, is the true, correct, and complete Lease, and has not been
modified or amended and constitutes the entire agreement between Landlord and
Tenant, and (ii) as far as is known to Tenant, there are no defaults of Landlord
under the Lease and there are no existing circumstances which with
88
-2-
the passage of time, or giving of notice, or both, would give rise to a default
under the Lease and/or allow Tenant to terminate the Lease.
2. NON-DISTURBANCE. So long as no default exists, nor any event has
occurred which has continued to exist for such period of time (after notice, if
any, required by the Lease) as would entitle the lessor under the Lease to
terminate the Lease or would cause, without any further action on the part of
such lessor, the termination of the Lease or would entitle such lessor to
dispossess the lessee thereunder, the Lease shall not be terminated, nor shall
such lessee's use, possession or enjoyment of the Leased Premises or rights
under the Lease be interfered with in any foreclosure or other action or
proceeding in the nature of foreclosure instituted under or in connection with
the Security Deed or in case Lender takes possession of the Property pursuant to
any provisions of the Security Deed or the Assignment of Leases, unless the
lessor under the Lease would have had such right if the Security Deed or the
Assignment of Leases had not been made, except that neither the person or entity
acquiring the interest of the lessor under the Lease as a result of any such
action or proceeding or deed in lieu of any such action or proceeding
(hereinafter called the "Purchaser") nor Lender if Lender takes possession of
the Property shall be (a) liable for any act or omission of any prior lessor
under the Lease, except in the case of defaults of a continuing nature as to
which the Lender has been given written notice; or (b) liable for the return of
any security deposit which lessee under the Lease has paid to any prior lessor
under the Lease; or (c) subject to any offsets or defenses which the lessee
under the Lease might have against any prior lessor under the Lease; or (d)
bound by any base rent, percentage rent or any other payments which the lessee
under the Lease might have paid for more than the current month to any prior
lessor under the Lease; or (e) bound by any amendment or modification of the
Lease made without Lender's prior written consent; or (f) bound by any consent
by any lessor under the Lease to any assignment or sublease of the lessee's
interest in the Lease made without also obtaining Lender's prior written
consent; or (g) personally liable for any default under the Lease or any
covenant or obligation on its part to be performed thereunder as lessor, it
being acknowledged that Tenant's sole remedy in the event of such default shall
be -to proceed against Purchaser's or Lender's interest in the Property,
provided, however, in no event shall Purchaser's or Lender's rights and
interests under the Security Deed be deemed an interest in the Property.
Notwithstanding anything contained herein to be contrary, Lender shall have
absolutely no obligation to perform any of Landlord's construction covenants
under the Lease, provided that if Lender shall not perform such covenants in the
event of foreclosure or deed in lieu thereof and within a reasonable time
following taking of possession by Lender, then Tenant shall have the right to
terminate its obligations under the Lease and to pursue any and all legal
remedies it may have against Landlord and any third parties other than Lender.
3. ATTORNMENT. Unless the Lease is terminated in accordance with
Paragraph 2, if the interests of the lessor under the Lease shall be transferred
by reason of the exercise of the power of sale contained in the Security Deed
(if applicable), or by any foreclosure or other proceeding for enforcement of
the Security Deed, or by deed in lieu of foreclosure or such other proceeding,
or if Lender takes possession of the Property pursuant to any provisions of the
Security Deed [or the Assignment of Leases], the lessee thereunder shall be
bound to the Purchaser or Lender, as the case may be, under all of the terms,
covenants and conditions of the Lease for the balance of the term thereof and
any extensions or renewals thereof which may be effected in accordance
89
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with any option therefor in the Lease, with the same force and effect as if the
Purchaser or Lender were the lessor under the Lease, and Tenant, as lessee under
the Lease, does hereby attorn to the Purchaser and Lender if it takes possession
of the Property, as its lessor under the Lease. Such attornment shall be
effective and self-operative without the execution of any further instruments
upon the succession by Purchaser to the interest of the lessor under the Lease
or the taking of possession of the Property by Lender. Nevertheless, Tenant
shall, from time to time, execute and deliver such instruments evidencing such
attornment as Purchaser or Lender may require. The respective rights and
obligations of Purchaser, Lender and of the lessee under the Lease upon such
attornment, to the extent of the then remaining balance of the term of the Lease
and any such extensions and renewals, shall be and are the same as now set forth
in the Lease except as otherwise expressly provided in Paragraph 2.
4. SUBORDINATION. Tenant hereby subordinates all of its right, title and
interest as lessee under the Lease to the right, title and interest of Lender
under the Security Deed, and Tenant further agrees that the Lease now is and
shall at all times continue to be subject and subordinate in each and every
respect to the Security Deed (including, without limitation, the casualty and
condemnation provisions of the Lease, which are hereby specifically subordinated
to the Security Deed) and to any and all increases, renewals, modifications,
extensions, substitutions, replacements and/or consolidations of the Security
Deed.
5. ASSIGNMENT OF LEASES. Tenant hereby acknowledges that all of
Landlord's right, title and interest as lessor under the Lease is being duty
assigned to Lender pursuant to the terms of the Security Deed and the Assignment
of Leases, and that pursuant to the terms thereof all rental payments under the
Lease shall continue to be paid to Landlord in accordance with the terms of the
Lease unless and until Tenant is otherwise notified in writing by Lender. Upon
receipt of any such written notice from Lender, Tenant covenants and agrees to
make payment of all rental payments then due or to become due under the Lease
directly to Lender or to Lender's agent designated in such notice and to
continue to do so until otherwise notified in writing by Lender. Landlord hereby
irrevocably directs and authorizes Tenant to make rental payments directly to
Lender following receipt of such notice, and covenants and agrees that Tenant
shall have the right to rely on such notice without any obligation to inquire as
to whether any default exists under the Security Deed or the Assignment of
Leases ` or the indebtedness secured thereby, and notwithstanding any notice or
claim of Landlord to the contrary, and that Landlord shall have no right or
claim against Tenant for or by reason of any rental payments made by Tenant to
Lender following receipt of such notice. Tenant further acknowledges and agrees:
(a) that under the provisions of the Security Deed and the Assignment of Leases,
the Lease cannot be terminated other than pursuant to its express terms (nor can
Landlord accept any surrender of the Lease) or modified in any of its terms, or
consent be given to the waiver or release of Tenant from the performance or
observance of any obligation under the Lease, without the prior written consent
of Lender, and without such consent no rent may be collected or accepted by
Landlord more than one month in advance; and (b) that the interest of Landlord
as lessor under the Lease has been assigned to Lender for the purposes specified
in the Security Deed and the Assignment of Leases, and Lender assumes no duty,
liability or obligation under the Lease, except only under the circumstances,
terms and conditions specifically set forth in the Security Deed and the
Assignment of Leases.
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6. NOTICE OF DEFAULT BY LESSOR. Tenant, as lessee under the Lease, hereby
covenants and agrees to give Lender written notice properly specifying wherein
the lessor under the Lease has failed to perform any of the covenants or
obligations of the lessor under the Lease, simultaneously with the giving of any
notice of such default to the lessor under the provisions of the Lease. Tenant
agrees that Lender shall have the right, but not the obligation, within
forty-five (45) days after receipt by Lender of such notice (or within such
additional time as is reasonably required to correct any such default) to
correct or remedy, or cause to be corrected or remedied, each such default
before the lessee under the Lease may be relieved of its obligations under the
Lease by reason of such default. Such notices to Lender shall be delivered in
duplicate to:
PNC Bank, National Association Real Estate Banking
One PNC Plaza
PI-XXXX-19-2
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxx X. Xxxxx
and
Marcus & Shapira LLP
One Oxford Centre, 35th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
or to such other address as the Lender shall have designated to Tenant by giving
written notice to Tenant at 000 Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention:
_______________, or to such other address as may be designated by written notice
from Tenant to Lender.
7. NO FURTHER SUBORDINATION. Except as expressly provided to the contrary
in Paragraph 4 hereof, Landlord and Tenant covenant and agree with Lender that
there shall be no further subordination of the interest of lessee under the
Lease to any lender or to any other party without first obtaining the prior
written consent of Lender. Any attempt to effect a further subordination of
lessee's interest under the Lease without first obtaining the prior written
consent of Lender shall be null and void.
8. AS TO LANDLORD AND TENANT. As between Landlord and Tenant, Landlord
and Tenant covenant and agree that nothing herein contained nor anything done
pursuant to the provisions hereof shall be deemed or construed to modify the
Lease.
9. AS TO LANDLORD AND LENDER. As between Landlord and Lender, Landlord
and Lender covenant and agree that nothing herein contained nor anything done
pursuant to the provisions hereof shall be deemed or construed to modify the
Security Deed or the Assignment of Leases.
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10. TITLE OF PARAGRAPHS. The titles of the paragraphs of this agreement
are for convenience and reference only, and the words contained therein shall in
no way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this agreement.
11. GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
12. PROVISIONS BINDING. The terms and provisions hereof shall be binding
upon and shall inure to the benefit of the heirs, executors, administrators,
successors and permitted assigns, respectively, of Lender, Tenant and Landlord.
The reference contained to .-successors and assigns of Tenant is not intended to
constitute and does not constitute a consent by Landlord or Lender to an
assignment by Tenant, but has reference only to those instances in which the
lessor under the Lease and Lender shall have given written consent to a
particular assignment by Tenant thereunder.
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IN WITNESS WHEREOF, the parties have hereunto set their respective hands
and seals as of the day, month and year first above written.
LENDER:
PNC BANK, NATIONAL ASSOCIATION,
a national banking association
By: _________________________________
Name:
Title:
TENANT:
ONESOURCE INFORMATION SERVICES, INC.,
a Delaware corporation
By: _________________________________
Name:
Title:
LANDLORD:
000 Xxxxx Xxxxxx Associates,
Limited Partnership
By: 000 Xxxxx Xxxxxx Managers,
Limited Partnership, its general partner
By: HG/Concord, Limited Partnership, its general partner
By: HG/Concord LLC, a Massachusetts limited liability company,
its general partner
By: ______________________________________________________
Name:
Title: Authorized Manager
00
-0-
Xxxxxxxxxxxx xx Xxxxxxxxxxxxx
___________________, ss. __________________, 1998
Then personally appeared before me ______________________, a manager of
HG/Concord LLC, the general partner of HG/Concord, Limited Partnership, the
general partner of 000 Xxxxx Xxxxxx Managers, Limited Partnership, the general
partner of 000 Xxxxx Xxxxxx Associates, Limited Partnership, and acknowledged
the foregoing to be his free act and deed and the free act and deed of
HG/Concord LLC as general partner.
____________________________________
Notary Public
My Commission Expires:
Commonwealth of Massachusetts
___________________, ss. __________________, 1998
Then personally appeared before me __________________ the _________________
of OneSource Information Set-vices, Inc. and acknowledged the foregoing
instrument to be his/her free act and deed and the free act and deed of
OneSource Information Services, Inc.
____________________________________
Notary Public
My Commission Expires:
Commonwealth of Pennsylvania
___________________, ss. __________________, 1998
Then personally appeared before me ________________, the _________________,
of PNC BANK, NATIONAL ASSOCIATION and acknowledged the foregoing to be his free
act and deed and the free act and deed of PNC BANK, NATIONAL ASSOCIATION.
____________________________________
Notary Public
My Commission Expires:
94
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EXHIBIT A
PROPERTY DESCRIPTION
95
EXHIBIT G
LETTER OF CREDIT
[ON BANK'S LETTERHEAD]
IRREVOCABLE LETTER OF CREDIT
January ___, 1999
Irrevocable Letter of Credit No. _____
BENEFICIARY
000 Xxxxx Xxxxxx Associates, Limited Partnership
c/o Hall Properties, Inc.
Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
APPLICANT
OneSource Information Services, Inc.
000 XxxxxxxxxXxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
EXPIRATION DATE: _______________
Ladies and Gentlemen:
______________________ ("Issuer") hereby issues our Irrevocable Letter of Credit
No. __________ in Beneficiary's favor in the amount of Four Hundred Fifteen
Thousand ($415,000.00) U.S. Dollars available by your sight drafts drawn on us
and accompanied by a written statement signed on behalf of 000 Xxxxx Xxxxxx
Associates, Limited Partnership, its successors or assigns, stating as follows:
"The undersigned certifies that 000 Xxxxx Xxxxxx Associates, Limited
Partnership and/or its successors and assigns is entitled to draw under the
Irrevocable Letter of Credit No. _____ pursuant to the terms of a Lease,
dated January __, 1999, between 000 Xxxxx Xxxxxx Associates, Limited
Partnership and OneSource Information Services, Inc."
Partial drawings are permitted.
We engage with you that all drafts drawn under and in compliance with the terms
of this Irrevocable Letter of Credit will be duly honored if presented to us on
or before the expiration date set forth above. Any draft drawn by you under this
Irrevocable Letter of Credit must bear the clause "Drawn on Irrevocable Letter
of Credit No. _____ of _____________________."
96
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This Irrevocable Letter of Credit is fully transferable and assignable by
Beneficiary. Beneficiary shall send a written request to Issuer to assign or
transfer this Irrevocable Letter of Credit and .,-upon presentation of this
Irrevocable Letter of Credit, as it may be amended, to Issuer, Issuer shall
re-issue this Irrevocable Letter of Credit in the then outstanding amount in
favor of Beneficiary's successor, assign or transferee.
This Irrevocable Letter of Credit sets forth in full the terms of our
undertaking, and such undertaking shall not in any way be limited, modified,
amended or amplified, except by a written document executed by the parties
hereto.
Except as otherwise expressly stated herein, this Irrevocable Letter of Credit
is subject to the "Uniform Customs and Practices for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500."
Very truly yours,
______________________________
By: __________________________
Name:
Title:
97
Description FRS APL Total
----------------------------- ------- ------ -------
cc holding 900
Checking - georgia commercial 77,074
Checking - LEX2000 7,869
Checking Xxxxxx Xxxxx 154,263
Checking - Petting Cash 464
Checking: Temp Holding (0)
CC Clearing 41,212
Checking - georgia commercial 12,871
Checking Xxxxxx Xxxxx 29,111
Checking: Temp Holding -
------- ------
Total Cash 250,570 83,193 323,762
