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Exhibit 10.13
LEASE
THIS LEASE AGREEMENT, dated 03 November 98 by and between Xxxxx Equity, Inc., a
Florida Corporation ("Landlord") with its principal office at 0000 Xxxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, XX 00000, and Synchronicity, Inc., a Corporation
organized and existing under the laws of the State of Ma. ("Tenant") with its
principal office at 000 Xxxxxx Xx., Xxxxxxxxxxx, XX 00000.
1. BASIC LEASE PROVISIONS
A. DESCRIPTION OF PREMISES
Suite Number 185
Building Name Laurel
Address: 0000 Xxxx Xxxxx Xxxxx
Xxxxxx: Xxxxxx
Xxxx Xxxxxxx
Xxxxx/Xxx: Xxxxxxx 00000
Center: Xxxxx Ctr. University
B. PRINCIPAL LEASE TERMS
Lease Term (Months) 36
Commencement Date: 01 January 99
Expiration Date: 31 December 01
Monthly Base Rent: $2326.57
Sales or Use Taxes: $139.59
Total: $2466.16
Security Deposit: $2466.16
C. LEASED AREA
Approximately 1534 rentable square feet.
(Includes Tenant's share of common area.)
D. ADDRESS FOR PAYMENT OF RENT AND SECURITY DEPOSITS:
Payee: Xxxxx Equity, Inc.
Address: Xxxx Xxxxxx Xxx 000000
Xxxx/Xxxxx/Xxx: Xxxxxxx, XX 00000-0000
Tenant Account # 0139 (note on remittance)
E. ADDRESSES FOR NOTICES
Tenant: Synchronicity, Inc.
000 Xxxxxx Xx.
Xxxxxxxxxxx, XX 00000
Tenant Fed. I.D./SSN: 00-000-0000
Landlord: Xxxxx Equity, Inc.
000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Landlord Fed. I.D.: 00-000000-00
With a copy to: Xxxxx Equity, Inc.
Attn: President
0000 Xxxxxxx Xxxxxxxx Xx.
Xxxxxxxxxxxx, XX 00000
The provisions contained in Sections 2 through 36, inclusive, which
appear after the signature lines below, are a part of this Lease and are
incorporated in this Lease by reference. The Tenant and the Landlord have
executed or caused to be executed this Lease on the dates shown below their
signatures, to be effective as of the date set forth above.
Tenant: Synchronicity, Inc.
By: (SEAL)
-----------------------------------------------------------
Print Name
----------------------------------------------------
Title:
--------------------------------------------------------
Attest:
Print Name
Landlord: Xxxxx Equity, Inc.
By: (SEAL)
-----------------------------------------------------------
Print Name Xxxxxx X. XxXxxxxx
Title: Divisional Vice President
Attest:
Print Name Xxxxxx X. XxXxxxxx
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Title:
(Corporate Seal)
Date:
Signed and sealed in the presence of:
(1)
Print Name:
(2)
Print Name:
As to Tenant
Title: Divisional Vice President
(Corporate Seal)
Date:
Signed and sealed in the presence of:
(1)
Print Name:
(2)
Print Name:
As to Landlord
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LEASE PROVISIONS INCORPORATED BY REFERENCE
2. LEASE OF PREMISES: The Landlord hereby leases to the Tenant and the
Tenant hereby takes from the Landlord the premises (the "Premises") which
include the Suite(s) shown and described on Exhibit "A", together with any other
parts of the Building used exclusively by Tenant, which Premises are or will be
contained in the office building (the "Building") located at the address stated
in Section 1A, under the terms and conditions contained in this Lease. For the
purposes of this lease, "Property" shall mean the property referred to at the
street address in Section 1A which is more specifically described in the legal
description maintained in the Landlord's records. For this purposes of this
lease, "Center" shall mean the Xxxxx Center referred to in Section 1A.
3. TERM: The term of this Lease (the "Term") shall commence on the date
(the "Commencement Date") which is the earlier to occur of the date stated in
Section 1B, or the date the Tenant first occupies all or part of the Premises.
The Term shall expire on the date (the "Expiration Date") stated in Section 1B
unless sooner terminated as otherwise provided in this Lease or unless extended
pursuant to Section 27 or other extension provisions contained herein.
4. USE AND POSSESSION: The Tenant covenants and agrees that the
Premises are to be used by the Tenant for general office purposes and for no
other purposes without the prior written consent of the Landlord. The Tenant
shall not occupy or use the Premises or permit the use or occupancy of the
Premises for any purpose or in any manner which: (a) is unlawful or is in
violation of any applicable legal, government or quasi-governmental requirement,
ordinance, rule or code; (b) may be dangerous to persons or property; (c) may
invalidate any insurance policy held by the Landlord or increase the amount of
premiums for any insurance policy affecting the Building or the Property (if any
additional amounts of insurance premiums are so incurred, the Tenant shall pay
the Landlord the additional amounts on demand as Additional Rent, provided that
such payment shall not authorize such use); (d) may create a nuisance or disturb
any other tenant of the Building or the occupants of neighboring Property or
injure the reputation of the Building or the Center; and (e) violates the "Rules
and Regulations" of the Building as may from time to time be adopted by
Landlord, or any restriction of record. The Tenant agrees that Tenant shall be
responsible for any costs incurred by Landlord by reason of Tenant's misuse of
the Premises or the Building and common areas, including without limitation any
damages incurred by Tenant in moving into or out of the Premises. If any costs
are so incurred by Landlord, the Tenant shall pay the Landlord such costs on
demand as Additional Rent.
The Landlord agrees to have the Premises substantially completed and
ready for possession on or before the Commencement Date, subject to delays
caused or occasioned by strikes, insurrections, Acts of God, labor unrest,
shortage of materials, civil disturbances and other casualties or unforeseen
causes or events beyond the control of the Landlord ("Unforeseen Causes"). The
Tenant agrees to accept possession of the Premises within ten (10) days after
the receipt of notice from the Landlord of substantial completion (if after the
date specified in Section 1B).
5. RENT: Tenant agrees to pay to Landlord at the address specified in
Section 1E, or at such other place designated in writing by Landlord, the
Monthly Rent, and any Additional Rent, plus any sales or use taxes (collectively
called "Rent"). "Monthly Rent" shall mean the initial monthly base rent stated
in Section 1B for the first twelve months following the Commencement Date of the
Term of this Lease ("First Lease Year"), and the Adjusted Monthly Rent, as
adjusted under Section 7. Rent shall be paid without any prior notice or demand
and without any deduction whatsoever. Monthly Rent shall be due in advance on
the first day of each month of
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the Term. The first installment of Monthly Rent shall be paid by Tenant to
Landlord upon execution of this Lease. Rent for any partial lease month shall be
prorated. Monthly Rent will be adjusted in the manner set forth in Section 7.
Tenant's obligation to pay Rent to Landlord shall be independent of every other
covenant or obligation of Landlord under this Lease. All delinquent Rent shall
bear interest at the maximum rate permitted by applicable law or 18% per annum,
whichever is less, from the date due until paid. Rent shall be considered
delinquent after the 10th day following the date it is due. If Tenant fails to
pay Rent or any other charge when due under this Lease, then Tenant shall pay
and Landlord shall be entitled to receive a late payment service charge, in
addition to any interest charge due hereunder, covering administrative and
overhead expenses incurred by Landlord caused by such late payment, which the
parties stipulate and agree are hereby liquidated and shall be equal to five
percent of the overdue amount. Tenant shall pay a charge equal to $25.00 per
returned check or the amount to which landlord is entitled under State law,
whichever is greater, for any checks written to Landlord which are returned for
insufficient funds.
6. REAL ESTATE TAX INCREASES: See Attached Rider
7. RENT ADJUSTMENT: See Attached Rider
8. SALES AND USE TAX: In addition to the Rent and other amounts due to
the Landlord under this Lease, the Tenant shall pay to the Landlord and the
Landlord shall remit to the appropriate governmental authorities any sales, use,
or other tax, excluding Federal or State income taxes, now or hereafter imposed
upon rents and other amounts due to the Landlord under this Lease,
notwithstanding the fact that any statute, ordinance, enactment, or regulation
may impose any of those types of taxes on the Landlord.
9. NOTICES: For the purpose of any notice or demand under this Lease,
the respective parties shall be served by overnight delivery, personal delivery
or certified or registered mail, return receipt requested, addressed to the
Tenant at the address as set forth in Section 1E and to the Landlord at the
addresses set forth in Section 1E or other such addresses designated in writing
by Landlord. Any notice shall be effective when delivered.
10. ORDINANCES AND REGULATIONS: The Tenant shall comply promptly, at
the Tenant's sole cost and expense, with all present and future laws, codes,
ordinances, rules and regulations or any municipal, county, state, federal or
other governmental authority, including environmental laws, and any bureau or
department thereof, and of the Board of Fire Underwriters or any other body
exercising similar functions, which may be applicable to the Premises and
Tenant's use or occupancy of the Premises, and shall comply with the
requirements of all of Landlord's policies of insurance at any time in force
with respect to the Building in which the Premises are located. The Tenant
agrees for itself and for its subtenants, employees, agents, and invitees to
comply with the Rules and Regulations, promulgated from time to time with
respect to the Premises, Building, Property and Center, a copy of which is
available in the management office in the Center.
Notwithstanding any other provision of this lease to the contrary,
Tenant shall comply with the Americans with Disabilities Act ("ADA"), as it now
exists and as it may hereafter be amended, with regard to the Premises and the
Tenant's use of the Premises, including, without limitation, the obligation to
make the Premises accessible and shall hold Landlord harmless with respect
thereto. Landlord shall not be responsible for compliance with the ADA with
respect to the Premises, including the design or construction thereof. Tenant
waives any right, claim, defense or set off which Tenant may have, now or
hereafter, based upon any responsibility Landlord may have under the ADA with
respect to the Premises, the Building, the Property or
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otherwise. Tenant agrees that any and all steps taken or to be taken by
Landlord, in Landlord's judgment, now or hereafter, to comply with the ADA
concerning the Building or the Property are authorized and permitted under the
Lease and shall not constitute an interruption, disturbance or other breach of
Tenant's rights under this Lease. Nothing herein shall constitute an admission
by Landlord that the ADA governs any part of the Premises, Building or Property
or any activities of Landlord with respect thereto.
Tenant covenants and agrees that Tenant shall not at any time maintain
on, or dispose or discharge from, the Property or the Premises any "Hazardous
Materials", as defined below, except Tenant may use and store minor quantities
of Hazardous Materials for cleaning purposes only or in connection with the use
of office equipment so long as the quantities and use are exempt from applicable
governmental regulation and such Hazardous Materials are disposed of in
accordance with all applicable laws. The failure to comply with al applicable
laws regarding Hazardous Materials and this covenant shall constitute an Event
of Default by the Tenant under this Lease and shall entitle the Landlord to all
rights and remedies provided in this Lease, at law or in equity. The term
"Hazardous Materials" as used herein shall mean collectively, any hazardous
waste, any hazardous substances, any pollutant or contaminant, all as defined by
42 USC Section 9601, and any toxic substances, petroleum products, other
hazardous materials, or other chemicals or substances regulated by any
environmental laws of any county, state or federal government or any other
governmental entity. Tenant's obligations as set forth in this paragraph shall
survive the termination of this Lease.
11. SIGNS: The Tenant shall not place any signs or other advertising
matter or materials on the exterior or on the interior of the Building or at any
other location on the Property or Center, without the prior written consent from
the Landlord. Any lettering or signs placed on the interior of the Building
shall be for directional purposes only, and such signs and lettering shall be of
a type, kind, character, location and description which have been approved by
the Landlord in writing. Directional and identification signage provided by the
Landlord shall be limited to the tenant directory of the Building.
12. SERVICES: The Landlord shall provide the following: heating and
cooling of the Premises, during normal business hours defined as Monday through
Friday, 8:00 a.m. to 5:00 p.m., excluding national holidays, to the extent
necessary for the comfortable occupancy of the Premises, according to Landlord's
standard, under normal business operations and in the absence of the use of
machines, equipment, or devices which affect the temperature otherwise
maintained in the Premises: water from the regular Building fixtures for
drinking, lavatory, and toilet purposes: customary cleaning and janitorial
services in the Premises five times per week, excluding national holidays:
customary cleaning, mowing, grounds keeping, and trash removal in the Common
Areas; Landlord's customary security services for the Property; and electricity
for normal business usage according to Landlord's standard. Additional capacity
or usage shall be provided at the option of the Landlord (reasonable exercised)
and at the sole cost and expense of the Tenant as Additional Rent. The Landlord
shall provide Landlord's standard amount of free non-exclusive parking for the
employees and visitors of the Tenant on the parking areas adjacent to the
Building.
The services to be provided by Landlord at its cost under the terms of
this Lease shall not include any maintenance or replacement of non-standard
building items such as kitchen or breakroom fixtures and appliances including
but not limited to sinks, disposals, dishwashers, water heaters, refrigerators,
icemakers, special air conditioning or heating units, and card access systems or
special facilities such as showers. All cost for the maintenance or replacement
of such items shall be the obligation of the Tenant.
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The Tenant agrees that the Landlord shall not be liable for damages for
failure to furnish or delay in furnishing any service if attributable to any of
the causes described in Sections 16 and 17 or as a result of unforeseen causes.
No failure or delay resulting from the foregoing reasons shall be considered to
be an eviction or disturbance of the Tenant's quiet enjoyment, use, or
possession of the Premises. If the Tenant shall require electrical current to
operate equipment or machines, including heating, refrigeration, computer(s),
data processing, or other machines or equipment using electrical current or
maintain office hours that will increase the amount of the electricity usually
furnished by the Landlord for use in general office space, the Tenant will
obtain the prior written approval of the Landlord and pay to the Landlord the
additional direct expense incurred, including any installation or maintenance
cost, as Additional Rent. Landlord reserves the right to install a submeter for
such service.
13. ALTERATIONS: The Tenant, by occupancy hereunder, accepts the
Premises as being in good repair and condition and suitable for Tenant's
intended use of the Premises. The Tenant shall maintain the Premises and every
part thereof in good repair and condition, reasonable use, wear and tear
excepted. The Tenant shall not make or suffer to be made any alterations,
additions or improvements to or of the Premises or any part thereof without
Landlord's prior written consent. The Tenant shall not permit any lien or claim
for lien of a mechanic, laborer, or supplier or any other lien to be filed
against the Center, the Property containing the Building, the Premises, or any
part of such property, arising out of work performed, or alleged to have been
performed by, or at the direction of, or on behalf of the Tenant.
The interest of Landlord in the Property or any part thereof shall not
be subject to liens for improvements made by Tenant or by persons claiming by,
through or under Tenant, and Tenant agrees that Tenant shall notify any person
making any improvements on behalf of Tenant of this provision. Upon request of
Landlord, Tenant will execute a short form of this Lease which states that the
terms of this Lease expressly prohibits any liability to Landlord or the
Landlord's property for any improvements made by, through or under Tenant which
may be recorded by Landlord.
14. QUIET ENJOYMENT: Subject to the provisions of this Lease, the
Tenant shall be entitled to peaceful and quiet enjoyment of the Premises, so
long as the Tenant is not in default under this Lease.
15. LANDLORD'S RIGHTS: The Landlord and its agents shall have the
right, at all reasonable times during the Term of this Lease, to enter the
Premises for the purpose of inspecting the Premises and of making any repairs
and alterations as the Landlord shall deem necessary. The Landlord and its
agents shall also have the right to enter the Premises at all reasonable hours
for the purpose of displaying the Premises to prospective tenants during the
ninety (90) day period prior to the Expiration Date of this Lease. Landlord and
its agents shall have the right at all times to alter, renovate, and repair
portions of the Building which do not include the Premises, notwithstanding any
temporary inconvenience or disturbance to Tenant caused by such repairs,
renovations, or alterations.
16. DESTRUCTION OF PREMISES: If the Premises, the Building, or the
Property is rendered substantially untenantable by fire or other casualty, the
Landlord may elect, by giving the Tenant written notice within ninety (90) days
after the date of the fire or casualty, either to: (a) terminate this Lease as
of the date of the fire or other casualty; or (b) proceed to repair or restore
the Premises, the Building, or the Property (other than the leasehold
improvements and personal property installed by the Tenant), to substantially
the same condition as existed immediately prior to fire or other casualty.
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If the Landlord elects to proceed pursuant to 16(b) above, the
Landlord's notice shall contain the Landlord's reasonable estimate of the time
required to substantially complete the repair or restoration. If the estimate
indicates that the time so required will exceed one hundred eighty (180) days
from the date of the casualty and the Landlord does not make available to the
Tenant for its use and occupancy other office space, substantially similar to
the Premises and located in the Property or in the Center, if any, pursuant to
Section 23, then the Tenant shall have the right to terminate this Lease of the
date of such casualty by giving written notice to the Landlord not later than
twenty (20) days after the date of the Landlord's notice. If the Landlord's
estimate indicates that the repair or restoration can be substantially completed
within one hundred eighty (180) days, or if the Tenant fails to exercise its
right to terminate this Lease, this Lease shall remain in force and effect.
If the Premises are damaged by fire or other casualty but the Premises
are not rendered substantially untenantable, then the Landlord shall diligently
proceed to repair and restore the damaged portions thereof (other than the
leasehold improvements and personal property installed by the Tenant), to
substantially the same condition as existed immediately prior to such fire or
other casualty, unless such damage occurs during the last twelve (12) months of
the Term, in which event the Landlord shall have the right to terminate this
Lease as of the date of such fire or other casualty by giving written notice to
the Tenant within thirty (30) days after the date of such fire or other
casualty.
If all or any part of the Premises are damaged by fire or other
casualty and this Lease is not terminated, the Rent shall xxxxx for that part of
the Premises which are untenantable on a per diem and proportionate area basis
from three (3) days after the date of the fire or other casualty until the
Landlord has substantially completed the repair and restoration work in the
Premises which it is required to perform, provided, that as a result of such
fire or other casualty, the Tenant does not occupy the portion of the Premises
which are untenantable during such period.
17. CONDEMNATION: If all or part of the Premises, Building or Property
is taken or condemned by an authority for any public use or purpose (including a
deed given in lieu of condemnation), which renders the Premises substantially
untenantable, this Lease shall terminate as of the date title vests in such
authority, and the Rent shall be apportioned as of such date.
If any part of the Premises, Building, or Property is taken or
condemned but the Premises are not rendered substantially untenantable
(including a deed given in lieu of condemnation), this Lease shall not
terminate. If the taking reduces the rentable square feet in the Premises, Rent
shall be equitably reduced for the period of such taking by an amount which
bears the same ratio to the Rent then in effect as the number of square feet so
taken or condemned bears to the Leased Area set forth in Section 1C. The
Landlord, upon receipt and to the extent of the award in condemnation or
proceeds of sale, shall make necessary repairs and restorations (exclusive of
leasehold improvements and personal property installed by the Tenant) to restore
the Premises remaining to as near its former condition as circumstances will
permit, and to the Building and the Property to the extent necessary to
constitute the portion of same not so taken or condemned as complete.
The Landlord shall be entitled to receive the entire price or award
from any sale, taking or condemnation without any payment to the Tenant and the
Tenant hereby assigns to the Landlord the Tenant's interest, if any, in such
award. However, the Tenant shall have the right separately to pursue against the
condemning authority an award with respect to the loss, if any, to leasehold
improvements paid by the Tenant's business resulting from such taking. Under no
circumstances shall the Tenant seek or be entitled to any compensation for the
value of its leasehold estate which Tenant hereby assigns to Landlord.
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18. ASSIGNMENT AND SUBLEASE: Without the prior written consent of the
Landlord which will not be unreasonably withheld, the Tenant shall not sublease
the Premises, or assign, mortgage, pledge, hypothecate or otherwise transfer or
permit the transfer of this Lease or the interest of the Tenant in this Lease,
in whole or in part, by operation of law, court decree or otherwise. Landlord
may grant, deny or withhold consent or impose conditions on the granting of
consent, in landlord's sole discretion. If the Tenant desires to assign this
Lease or to enter into any sublease of the Premises, the Tenant shall deliver
written notice of such intent to the Landlord, together with a copy of the
proposed assignment or sublease at least thirty (30) days prior to the effective
date of the proposed assignment or commencement date of the term of the proposed
sublease. Any approved sublease shall be expressly subject to the terms and
conditions of this Lease. In the event of any approved sublease or assignment,
the Tenant shall not be released or discharged from any liability, whether past,
present or future, under this Lease, including any renewal term of this Lease,
and if the sublease or assignment provides for rent in excess of the Rent
payable to Landlord under the terms of this Lease, one-half (1/2) of the
difference between the rent payable by the assignee or subtenant and the Rent
payable to Landlord under the terms of this Lease shall be paid to Landlord in
consideration of its consent to the assignment or sublease. For purposes of this
Section 18, an assignment shall be considered to include a change in the
majority ownership or control of Tenant if Tenant is a corporation whose shares
of stock are not traded publicly, or, if the tenant is a partnership, a change
in the general partner of the partnership or a change in the persons holding
more than 50% interest in the partnership, or change in majority ownership or
control of any general partner of the partnership.
19. HOLDING OVER: If the Tenant, or any assignee or sublessee of the
Tenant, shall continue to occupy the Premises after the termination or
expiration of this Lease (including a termination by notice under Section 24 or
a termination or expiration under Section 27), without the prior written consent
of the Landlord, such tenancy shall be a Tenancy at Sufferance. During the
period of any hold over tenancy by the Tenant, or any assignee or sublessee, the
Landlord, by notice to the Tenant, may adjust the Rent to an amount equal to one
hundred and fifty percent of the Rent of the last month of the Term in which
Rent was payable. Acceptance by the Landlord of any Rent after termination shall
not constitute a renewal of this Lease or consent to such hold over occupancy
nor shall it waive the Landlord's right of re-entry or any other right contained
in this Lease or provided by law.
20. SUBORDINATION AND ATTORNMENT: This Lease and the right of the
Tenant hereunder are expressly subject and subordinate to the lien and
provisions of any mortgage, deed of trust, deed to secure debt, ground lease,
assignment of leases, or other security instrument or operating agreement
(collectively a "Security Instrument") now or hereafter encumbering the
Premises, the Building, the Property, or any part thereof, and all amendments,
renewals, modifications and extensions of and to any such Security Instrument
and to all advances made or hereafter to be made upon such Security Instrument.
The Tenant agrees to execute and deliver such further instruments, in such form
as may be required by Landlord or any holder of a proposed or existing Security
Instrument, subordinating this Lease to the lien of any such Security Instrument
as may be requested in writing by the Landlord or holder from time to time.
In the event of the foreclosure of any such Security Instrument by
voluntary agreement or otherwise, or the commencement of any judicial action
seeking such foreclosure, the Tenant, at the request of the then Landlord, shall
attorn to and recognize such mortgagee or purchaser in foreclosure as the
Tenant's landlord under this Lease. The Tenant agrees to execute and deliver at
any time upon request of such mortgagee, purchaser, or their successors, any
instrument to further evidence such attornment.
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The Tenant shall from time to time, upon not less than seven (7) days'
prior written request by the Landlord, deliver to the Landlord a statement in
writing certifying that this Lease is unmodified and in full force and effect,
or, if there have been modifications, that this Lease, as modified, is in full
force and effect; providing a true, correct and complete copy of the Lease and
any and all modifications of the Lease; the amount of each item of the Rent then
payable under this Lease and the date to which the Rent has been paid; that the
Landlord is not in default under this Lease or, if in default, a detailed
description of such default; that the Tenant is or is not in possession of the
Premises, as the case may be; and containing such other information and
agreements as may reasonably requested.
21. WAIVER AND INDEMNIFICATION: To the full extent permitted by law,
the Tenant hereby releases and waives all claims against the Landlord and its
agents, employees, officers, directors, and independent contractors, for injury
or damage to person, property or business sustained in or about the Property,
the Building, or the Premises by the Tenant, its agents or employees other than
damage proximately and solely caused by the gross negligence of the Landlord or
its agents or employees.
The Tenant agrees to indemnify and hold harmless the Landlord and its
agents and employees, from and against any and all liabilities, claims, demands,
costs, and expenses of every kind and nature, including those arising from any
injury or damage to any person (including death) or property sustained in the
Premises, or resulting from the failure of the Tenant to perform its obligations
under this Lease; provided, however, the Tenant's obligations under this section
shall not apply to injury or damage resulting from the negligence or willful act
of the Landlord or its agents or employees.
The Landlord agrees to indemnify and hold harmless the Tenant, and its
respective agents and employees, from and against any and all liabilities,
claims, demands, costs and expenses of every kind and nature, arising from any
injury or damage to any person (including death) or property sustained in or
about the Building proximately caused by the gross negligence or willful act or
omission of the Landlord; provided, however, the Landlord's obligations under
this section shall not apply to injury or damage resulting from the negligence
or willful act or omission of the Tenant, or its agents or employees.
The Landlord shall not be responsible or liable to the Tenant for any
event, act or omission to the extent covered by insurance and maintained or
required to be maintained by the Tenant with respect to the Premises and its use
and occupancy thereof (whether or not such insurance is actually obtained or
maintained). At the request of the Landlord, the Tenant shall from time to time
cause its insurers to provide effective waivers of subrogation for the benefit
of the Landlord, and its agents or employees and insurers, in a form
satisfactory to the Landlord.
22. SURRENDER OF PREMISES: Upon the expiration or termination of this
Lease or the termination of the Tenant's right of possession of the Premises,
the Tenant shall surrender and vacate the Premises immediately and deliver
possession thereof to the Landlord in a clean, good, and tenantable condition,
except for a) damages beyond the control of the Tenant; b) reasonable use; c)
ordinary wear and tear. Any movable trade fixtures and personal property that
may be removed from the Premises by the Tenant at the end of the Lease term, but
which are not so removed, shall be conclusively presumed to have been abandoned
by the Tenant and title to such property shall pass to the Landlord without any
payment or credit; or, the Landlord may, at is option, either store or dispose
of such trade fixtures and personal property at the Tenant's expense.
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Tenant agrees that it shall not remove any of the personal property from the
Premises without Landlord's consent so long as any Rent or Additional Rent, or
other sums owed to Landlord, remain unpaid.
23. RELOCATION OF TENANT: At any time after the date of this Lease, the
Landlord may substitute for the Premises, other premises in the Center, in which
even the New Premises shall be deemed to be the Premises for all purposes under
this Lease, provide: (1) the New Premises shall be similar to the Premises in
area and configuration; (2) if the Tenant is then occupying the Premises, the
Landlord shall give the Tenant not less than sixty (60) days prior written
notice of such substitution; (3) if the Tenant is then occupying the Premises,
the Landlord shall pay the actual and reasonable expenses of physically moving
the Tenant, its then existing property and its then existing equipment to the
New Premises and the Landlord shall pay the actual and reasonable expenses of
replacing the then unusable printed materials of the Tenant; and (4) the
Landlord, at is expense, shall improve the New Premises in a manner
substantially similar to that of the Premises at the time of such substitution
or as otherwise mutually agreed between the Tenant and the Landlord in writing.
24. EVENTS OF DEFAULT: Each of the following shall constitute an event
of default by the Tenant under this Lease: (1) the Tenant fails to pay any
installment of Rent or Additional Rent within ten (10) days after the date on
which the installment of Rent or Additional Rent first becomes due; (2) the
Tenant fails to observe or perform its obligations under sub-section (d) of
Section 4 above and such violation continues for more than 24 hours after such
notice or Tenant fails to observe or perform any of the other covenants,
conditions or provisions of this Lease other than the payment of any installment
of Rent or Additional Rent, and fails to cure such default within fifteen (15)
days after written notice from the Landlord to the Tenant; (3) the Tenant fails
a second time to observe or perform any of the other covenants, conditions or
provisions of this Lease other than the payment of any installment of Rent or
Additional Rent after prior written notice of the failure; (4) a petition is
filed by or against the Tenant or any Guarantor to declare the Tenant or the
Guarantor, as the case may be, bankrupt or to seek relief for such tenant or
Guarantor under any chapter of the bankruptcy Doe, as amended, or under any
other law imposing a moratorium on, or granting debtor's relief with respect to,
the rights of creditors; (5) the Tenant or any Guarantor becomes or is declared
insolvent by law or Tenant or any Guarantor makes an assignment for the benefit
of creditors; (6) a receiver is appointed for the Tenant or the Tenant's
property or for any Guarantor or any of the Guarantor's property; (7) the Tenant
abandons or vacates the Premises; or, (8) the interest of the Tenant in this
Lease is levied upon under execution or other legal process.
Upon the occurrence of an event of default by the Tenant under this
Lease, the Landlord at its option, without further notice or demand to the
Tenant, may in addition to all other rights and remedies provided in this Lease,
at law or in equity:
A. Terminate this Lease and the Tenant's right of possession of the
Premises, and recover all damages to which the Landlord is entitled under this
Lease, at law and in equity, specifically including, without limitation, all the
Landlord's expenses of reletting (including repairs, alterations, improvements,
additions, decorations, legal fees and brokerage commissions).
B. Terminate the Tenant's right of possession of the Premises without
terminating this Lease, in which event the Landlord may, but shall not be
obligated to, relet the Premises, or any part thereof for the account of the
Tenant, for such rent and such term and upon such terms and conditions as are
acceptable to the Landlord. For purposes of any reletting of the Premises, the
Landlord is authorized to redecorate, repair, alter and improve the Premises to
the extent necessary or desirable in the Landlord's judgement. For any period
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during which the Premises have not been relet, Tenant shall pay Landlord monthly
on the first day of each month during the period that Tenant's right of
possession is terminated, a sum equal to the amount of rent due under this Lease
for such month. If and when the Premises are relet and a sufficient sum is not
realized from such reletting after payment of all the Landlords' expenses of
reletting (including repairs, alterations, improvements, additions, decorations,
legal fees and brokerage commissions) to satisfy the payment of Rent due under
this lease for any month, the Tenant shall pay to the Landlord any such
deficiency monthly upon demand. The Tenant agrees that the Landlord may file
suit to recover any sums due to the Landlord under this section and that such
suit or recovery of any amount due the Landlord shall not be any defense to any
subsequent action brought for any amount not previously reduced by judgement in
favor of the Landlord. If the Landlord elects to terminate the Tenant's right to
possession only without terminating this Lease, the Landlord may, at is option,
enter into the Premises, removing the Tenant's signs and other evidences of
tenancy, and take and hold possession thereof; provided, however, that such
entry and possession shall not terminate this Lease or release the Tenant, in
whole or in part, from the Tenant's obligation to pay the Rent reserved
hereunder for the full Term or from any other obligation of the Tenant under
this Lease.
Tenant shall pay on demand or reimburse Landlord for payment of
Landlord's reasonable attorney's fees, expenses and court costs in negotiation,
at trial, and on appeal incurred by Landlord to enforce any obligation of Tenant
under this Lease or to defend any claim brought by Tenant against Landlord or by
any person claiming by, through or under Tenant, or in curing any default by
Tenant, or in connection with any action or proceeding arising out of or
occasioned by any lien or claim of lien on the Premises, the Building, or the
center, or in defending or otherwise participating in any legal proceeding
initiated by Tenant or against Tenant, or in connection with the investigation
of a response to any request for consent or other amendments to the Lease by
Tenant.
25. SUCCESSOR AND ASSIGNS: This Lease shall bind and inure to the
benefit of the successors, assigns, heirs, executors, administrators, and legal
representatives of the parties hereto. In the event of the sale, assignment, or
transfer by the Landlord of its interest in the Building or in this Lease (other
than a collateral assignment to secure a debt of the Landlord prior to
enforcement) to a successor in interest who expressly assumes the obligations
of the Landlord hereunder, the Landlord shall thereupon be released or
discharged from all of its covenants and obligations hereunder, except such
obligations as the Landlord shall have accrued prior to any such sale,
assignment or transfer; and the Tenant agrees to look solely to such successor
of the Landlord for performance of such obligations. Any securities or funds
given by the Tenant to the Landlord to secure performance by the Tenant of its
obligations hereunder may be assigned by the Landlord to such successor of the
Landlord and, upon acknowledgement by such successor or receipt of such security
and its assumption of the obligation to account for such security in accordance
with the terms of the lease, the Landlord shall be discharged of any further
obligation relating thereto. The Landlord's assignment of the Lease or of any or
all of its rights herein shall in no manner affect the Tenant's obligations
hereunder. The Landlord shall have the right to freely sell, assign or otherwise
transfer its interest in the Building and/or this Lease.
26. NON-WAIVER: No waiver of any covenant or condition of this Lease by
either party shall be deemed to imply or constitute a further waiver of any
other covenant or condition of this Lease.
27. See attached rider.
28. SECURITY DEPOSIT: As security for the performance of its
obligations under this Lease, the Tenant upon its execution of this Lease has
paid to the Landlord a security deposit (the "Security Deposit") in the
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amount stated in Section 1B. The Security Deposit may be applied by the Landlord
to cure or partially cure any default of the Tenant under this Lease, and upon
notice by the Landlord of such application, the Tenant shall replenish the
Security Deposit in full by promptly paying to the Landlord the amount so
applied. The Landlord shall not pay any interest on the Security Deposit. The
Security Deposit shall not be deemed an advance payment of rent or a measure of
damages for any default by the Tenant under this Lease, nor shall it be a bar or
defense to any action which the Landlord may at any time commence against the
Tenant.
29. LIMITATION OF THE LANDLORD'S LIABILITY: As used in this Lease, the
term "Landlord" shall mean the entity herein named as such, and its successors
and assigns. No person holding the Landlord's interest under the Lease (whether
or not such person is named as the "Landlord") shall have any liability
hereunder after such person ceases to hold such interest, except for any
liability accruing hereunder while such person held such interest. No principal,
officer, employee, or partner (general or limited) of the Landlord shall have
any personal liability under any provision of this Lease. If the Landlord
defaults in the performance of any of its obligations under this Lease or
otherwise, the Tenant shall look solely to the Landlord's interest in the
Building and not to the other assets of Landlord or the assets, interest, or
rights of any principal, officer, employee, or partner (general or limited) for
satisfaction of the Tenant's remedies on account thereof.
30. COMMON AREAS: For purposes of this Lease "Common Areas" shall mean
all areas, improvements, space, and equipment (owned or controlled by the
Landlord) in or at the Property, provided by the Landlord for the common or
joint use and benefit of tenants, customers and other invitees.
31. MISCELLANEOUS: This Lease, the Exhibits, the Riders and Addendums
contained herein or attached hereto contain the entire agreement between the
Landlord and the Tenant and there are no other agreements, either oral or
written. This Lease shall not be modified or amended except by a written
document signed by the Landlord and the Tenant which specifically refers to this
Lease. The captions in this Lease are for convenience only and in no way define,
limit, construe or describe the scope or intent of the provisions of this Lease.
This Lease shall be construed in accordance with the laws of the state in which
the Building is located. If any provision of this Lease or any amendment hereof
is invalid or unenforceable in any instance, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision, or such
provision in any circumstance not controlled by such determination.
32. TENANT'S INSURANCE: Tenant shall obtain and keep in force during
the Term of this Lease, including any extension and renewal, comprehensive
general liability insurance, including contractual liability coverage, insuring
Landlord (as an additional insured) and tenant against any liability arising out
of the ownership, use, occupancy or maintenance of the Premises, and all areas
appurtenant thereto. Such policy shall provide minimum limits of $1,000,000 for
damage to property or for death or injury to any one person in any one accident.
Tenant shall deliver to Landlord, prior to occupancy of the Premises, a
certificate of insurance and evidence of payment of one year's premium, and
shall deliver a new certificate as and when the policy is renewed or replaced.
Said policy shall contain a waiver of subrogation clause in form and content
satisfactory to Landlord and provide that it will not be subject to
cancellation, non-renewal, reduction or other change except after at least
thirty (30) days prior written notice to Landlord. If Tenant fails to comply
with such requirements, Landlord may obtain such insurance and keep the same in
effect and Tenant shall pay Landlord, as Additional Rent due hereunder, the
premium cost thereof upon demand.
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33. NO RECORDING: NEITHER THIS LEASE NOR ANY MEMORANDUM OF THIS LEASE
MAY BE RECORDED OR FILED FOR RECORD IN ANY PUBLIC RECORDS WITHOUT THE SEPARATE
EXPRESS WRITTEN CONSENT, IN RECORDABLE FORM OF THE LANDLORD.
34. ENCUMBRANCES ON LANDLORD'S TITLE: Upon request of Landlord, Tenant
will promptly release or modify, or cause to be released or modified, any
financing statement given by Tenant to a third party, any notice of commencement
filed by Tenant with respect to work on the Premises, or any other recorded
document filed by or on account of Tenant ("Document"), which adversely affects,
clouds, or otherwise encumbers Landlord's title to the Center or any part
thereof, so that the Document shall not encumber any portion of the Center,
Building, or Property other than the Tenant's leasehold interest in the
Premises. Tenant's obligations as set forth in this Section 34 shall survive
termination of this Lease.
35. RADON DISCLOSURE FOR FLORIDA LEASES: Radon is a naturally occurring
radioactive gas which, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon testing
may be obtained from your county public health unit. Tenant acknowledges this
disclosure by signing this Lease.
36. RIDERS & ADDENDA: All riders and addenda contained herein or
attached hereto shall be deemed to be a part hereof and hereby incorporated in
this Lease by reference.
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THIS PAGE CONTAINS FLOOR PLAN
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THIS PAGE CONTAINS BUILDING LAYOUT PLAN
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LEASE RIDER
This Rider is attached to and made a part of the Lease dated October 30, 1998 by
and between XXXXX EQUITY, INC., a Florida Corporation ("Landlord") with its
principal office at 0000 Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx, 00000,
and SYNCHRONICITY, INC., a corporation organized and existing under the laws of
the State of Massachusetts ("Tenant") with its principal office at 000 Xxxxxx
Xxxxxx, Xxxxxxxxxxx, XX 00000.
36A: RENT ADJUSTMENT: The monthly rental as stated in Paragraph 1B, Monthly
Base Rent, will be adjusted on the respective anniversary dates by a
fixed increase of five percent (5%) per year.
36B: TENANT IMPROVEMENTS: Landlord to construct ceiling height wall in
conference room and add new door and replace carpet in Conference Room.
Landlord to install a 6' base/cabinet and counter with cold water sink
(see floor plan attached). Tenant to be responsible for phone and
computer wiring and to coordinate installation with Xxxxx'x Operations
Supervisor.
36C: OPTION TO CANCEL: Tenant may have the option to cancel this Lease
Agreement on second anniversary dates of this lease dated October 30,
1998 by providing the Landlord with 120 days prior written notice of
such intent to cancel accompanied by a two months cancellation fee. This
120 day notice period shall pertain to full calendar months and shall
commence the first day of the month. It is further acknowledged and
understood that Tenant remains obligated to pay any and all scheduled
rental payments through the effective date of the termination. Upon
receipt of all monies due and payable, Tenant shall be released from any
future liability under the terms of the Lease Agreement.
36D: EARLY OCCUPANCY: If the Lessee takes occupancy prior to the commencement
date of this Lease Agreement, all terms and conditions will be in effect
as of the date of occupancy except the monthly rent which will prorated
as of the date of occupancy.
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